Appeal from the Superior Court of the District of Columbia (F-4269-05) (Hon. Herbert B. Dixon, Jr., Trial Judge)
(Argued October 14, 2010 Decided December 30, 2010)
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and NEBEKER,Senior Judge.
WASHINGTON, Chief Judge: Pierre Lewis appeals from his convictions on three counts: arson, in violation of D.C. Code § 22-301 (2001); malicious destruction of property ("MDP"), in violation of D.C. Code § 22-303 (2001); and obstruction of justice, in violation of D.C. Code § 22-722 (a)(2)(A) (2001).*fn1 He was sentenced to concurrent 48-month sentences on the arson and MDP counts, and 168 months, to be served consecutively, on the obstruction of justice count. On appeal, Lewis contends (1) that the trial court improperly curtailed his cross-examination of a key government witness and thereby violated his constitutional rights, and (2) that there was insufficient evidence that he possessed the mens rea required to convict him of arson. We hold that while there was no reversible error in the trial court's curtailment of cross-examination, the government did fail to present sufficient evidence of Lewis' mens rea to sustain his conviction for arson, and we, therefore, reverse his conviction on that count.
After a trial before Judge Herbert B. Dixon, Jr., a jury convicted Lewis of arson, MDP, and obstruction of justice based upon his involvement in a fire that occurred in a vacant house (the "House") on September 22, 2004. When the fire was extinguished, investigators determined than an accelerant such as gasoline had been used to set the fire. Investigators also discovered the remains of Lesley Stewart in the House. Stewart had been stabbed multiple times, and it was conclusively established that he died of his stab wounds before the fire was set.
Evidence presented at trial indicated that Lewis and Stewart were both habitual drug abusers. Stewart did odd jobs (such as washing cars) for Charles Washington, a neighborhood drug dealer. According to Washington, Stewart had a similar relationship with another neighborhood drug dealer, Kim Holston. Washington testified that Stewart had told him that Holston had been cooperating with police and intended to send undercover officers to make a surreptitious purchase of drugs from Washington and thereafter arrest him. Washington confronted Holston about this allegation, and immediately thereafter Washington watched as Holston and Stewart had a conversation. After that conversation, Stewart told Washington that Holston had said something about Stewart's allegations of Holston's assistance to police. After Washington saw Holston looking for Stewart over the next few days, Washington told Stewart to lie low for a while. Stewart told Washington that he had found a new place to stay that no one knew of. This was the last time Washington ever saw Stewart.
Although there was no direct evidence placing Lewis at the scene of the fire, the government presented five witnesses who implicated Lewis in the stabbing of Stewart and subsequent burning of his body at the House. Washington testified that on the night of the fire, Lewis came to Washington's home and asked for a match or a lighter. Carol Russell testified that on an unspecified date around the time of the fire, she had been doing drugs at a house Lewis entered and that while she did not notice an odor before Lewis entered, the house smelled like gasoline once Lewis was there. Another drug user, Catherine Mitchell, testified that shortly before she learned of Stewart's death, Lewis told her that he had to "do a job" for someone and would soon be receiving two or three "eight-balls" of cocaine and up to $1,000 in return, and that he would likely have to leave town for a while. She also testified that Lewis then contacted Holston about acquiring free drugs.
Franklin James testified that while he and Lewis were doing drugs together at James' mother's house, Lewis said he had to "make something happen" and left the house, and then returned and said he had "stabbed somebody." According to James, later that night Lewis left the house with James' mother's gas can; when Lewis returned, he made a phone call to see if he could get some drugs for "a favor he did for [the unnamed call recipient] earlier." Lewis then got into a van that James associated with Holston and returned a few minutes later with cocaine that Lewis said "his man" had given him for "doing something." James testified that about a year later, when James and Lewis shared a jail cell, Lewis confessed to James that he had stabbed someone and set fire to the body to destroy traces of Lewis' own DNA that would be found under the victim's nails since the victim had "scratched" him.*fn2
Another jailhouse informant, Daniel Harris, also testified that while he was jailed with Lewis, Lewis told him that he was "locked up in North Carolina because he was on the run for a body in D.C." and that he had "stabbed a guy for some coke" and then fled. Lewis told Harris that because the victim had scratched him, he returned with a gas can, "wiped the place down and burned it up."
Every government witness was substantially impeached based upon either prior convictions or motives to curry favor with the government in order to receive reduced or more lenient sentencing of their own. The only cross-examination Lewis appeals is that of Charles Washington. On direct examination, Washington testified that his home had been raided and that he was convicted of various drug crimes, but that he had not received any "promise[s]," "deals," or "benefits" from the government in connection with that case. On cross-examination, Lewis sought to inquire as to Washington's state of mind when he discussed Lewis' case with the government. The trial court precluded Lewis' questions regarding Washington's potential sentence for his drug crime or his state of mind when talking to police investigators, but allowed Lewis to inquire as to various other circumstances of Washington's drug offense and subsequent cooperation with the government. Because a recitation of the precise questions asked, answered, and precluded is essential to our holding, we must here describe these portions of Washington's cross-examination thoroughly.
When Lewis' counsel began to cross-examine Washington about his drug charges, Washington acknowledged that he spoke to police about Lewis' case only after his own drug case arose. The witness testified that he had been arrested with "heroin" and "crack" in his house and that he had been "locked up" on his own "drug distribution" charge. When defense counsel asked if Washington knew that his drug charges "could carry . . . up to 60 years," the government objected and a bench conference ensued. The trial court said that before it would allow counsel to explore the drug penalties, "there's got to be a little more about whether or not there was a possibility of a deal. Right now, the evidence doesn't suggest there was a deal." Defense counsel responded, "I'm sorry. Let me be clear. There was not [a deal]. What I'm talking about is what was in the witness' mind. . . . He's talking to [police] in the hopes of getting something." The trial court nonetheless sustained the objection, saying this was "too speculative right now. . . . Once we get a little closer to there being some kind of a deal, then you'll be able to explore those kinds of things but not just based on the fact that you suspect that in his mind he was trying to get a deal at this point." Defense counsel again tried to explain her position that when Washington began discussing Lewis' case with police, "he was already locked up on drug distribution . . . facing 60 years, and he was trying to work it off by giving information to [police] so he could get a lesser sentence . . . . So I'm talking about what's in his mind at the moment when he starts to speak to [police] . . . ."*fn3 The trial court again maintained its position that defense counsel would have to "make a little more of a record . . . for [it] to allow this type of inquiry" and sustained the objection.
Later on, defense counsel returned to Washington's drug conviction and was permitted, over objection, to ask Washington "how much heroin" was in his home when he was arrested; Washington testified that he did not know. Defense counsel then elicited that Washington pled guilty to having the heroin in his home. He testified that after his arrest for that charge, he had his first meeting with "Detective Waylon," the detective in charge of Lewis' case who himself testified before the jury in Lewis' case. Over objection, defense counsel was permitted to ask Washington if he "[was] talking to [the detective] because [he] had been arrested in his own case," to which Washington replied "[n]o." When counsel then asked, "you know that talking to a homicide detective can reduce your sentence in your own drug case, correct," the prosecution objected. The trial court sustained, saying defense counsel had not "laid the foundation [it] insisted on."
Defense counsel tried again, asking "you know that it's beneficial to you to give information to police officers to work off your own case, correct?" Another objection and bench conference followed, during which defense counsel expressed that she did not know what more foundation the trial court was looking for. The trial court said that it did not "think the foundation is going to be there based on . . . what the witness has said so far. I think you and I just disagree as to what the proper basis would be for me to allow you to go into that issue." Defense counsel replied, "is the court saying that there has to be a deal in order for me to get into the facts of whether or not this witness thought that . . . providing information in his arrest . . . was going to benefit his own case?" The trial court responded that it "has to be more than mere speculation." Defense counsel stated that she had the grand jury testimony where Washington discussed other murder cases, which indicated that she was not speculating but instead that the "inference is that he knows if he gives information to [police] about things he claims to know they'll reduce his sentence." The prosecutor noted that the transcript of Washington's interview with police begins by indicating that Washington was "not under arrest at the time and that nothing's been promised to him in exchange for talking with them about this and that he . . . came willingly along with police that night." The trial court sustained the objection.
Defense counsel later tried this line of questioning a final time, eliciting from Washington that he had previously been convicted of multiple drug offenses including at least one felony. After first denying that he knew he might face jail time for his recent drug charges, Washington later admitted that he "had a feeling [he] would probably go to jail." Defense counsel then elicited that Washington knew that the same United States Attorney's Office that was prosecuting Lewis was also the one that handled Washington's own recent drug case. When defense counsel asked Washington if he knew that "the U.S. Attorney's Office can assist you in your case when you give them information on another case,"the trial court sustained the government's objection, stating that it would "place the limit here." Thereafter, defense counsel finished cross-examining Washington and he was excused.
Although the trial court did err by curtailing defense counsel's cross-examination of Washington, we hold that the error neither rose to the level of constitutional error nor amounted to an abuse of discretion by the trial court. Therefore, we affirm his convictions for MDP and ...