Appeal from the Superior Court of the District of Columbia (CF3-19640-08) (Hon. Gregory Jackson, Trial Judge)
The opinion of the court was delivered by: King, Senior Judge:
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge.
After a jury trial, Todd Matthew Thomas was convicted of five counts of first-degree burglary, in violation of D.C. Code § 22-801 (a) (2007 Supp.) (one count each from the B.C., C.T., F.H., W.C., and M.C. incidents); one count of attempted second-degree burglary (the S.C. incident), in violation of D.C. Code §§ 22-801 (b), -1803 (2007 Supp.); two counts of assault (one count from the W.C. incident and one count from the M.C. incident), in violation of D.C. Code § 22-404 (2007 Supp.); and one count of fourth-degree sexual abuse (from the B.C. incident) with aggravating circumstances, in violation of D.C. Code §§ 22-3005 (2), -3020 (a)(5) (2007 Supp.).*fn1 On appeal, Thomas contends the trial court erred by (1) admitting evidence of his prior sexual assault conviction in Virginia pursuant to Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), (2) excluding his proffered Winfield*fn2 defense, and (3) excluding his expert's testimony about factors that might have affected the eyewitnesses' identifications of him. Holding the trial judge erred by admitting the other-crimes evidence, we reverse the convictions and remand the case for a new trial.
The government alleged that on six separate occasions between July 2007 and August 2008, Thomas entered or attempted to enter the homes of male Georgetown University students and, in some instances, assaulted or attempted to assault them as they slept. Aside from one assault, which occurred at 1320 35th Street, N.W., the remaining assaults all occurred in two adjoining townhomes, located at 1207 and 1209 33rd Street, N.W. The 35th Street townhouse is approximately three blocks from the 33rd Street townhouses in the Georgetown section of the District of Columbia.
At trial, B.C., a Georgetown University student, testified that on July 28, 2007, Thomas sexually assaulted him, while he was sleeping in his upstairs bedroom at 1207 33rd Street, N.W. Before the assault, B.C. had six or more alcoholic beverages at a bar, and returned home shortly after 2:00 a.m. B.C. testified that he fell asleep, awoke and found Thomas sitting on the edge of his bed, "touching [him] sexually." According to B.C., Thomas had his hand on his penis, and was "jerking [him] off." As B.C. started "to become more awake," Thomas said, "[n]o, I'm leaving, I'm leaving," and he left. Although B.C. was "alarmed and confused," he "eventually fell back asleep." He did not call the police to report the incident.
C.T., another Georgetown University student, testified that in September of 2007, while he was sleeping, Thomas entered his bedroom at 1320 35th Street, N.W. Prior to this incident, C.T. and his roommates hosted a party at their house, and C.T. had several drinks. C.T. testified that the house was "completely empty" around 2:30 a.m., and he had not locked the front door. According to C.T., Thomas told C.T. that he was there for the party and that he was looking for his girlfriend. C.T. told Thomas that his girlfriend was not there and that he should leave. C.T. then "forcefully" escorted Thomas out of the house. C.T. testified that he saw Thomas again, approximately seven to eight months later, in the summer of 2008, sitting in the driver's seat of a champagne-colored Lexus SUV. C.T. noted a partial license plate number of the vehicle, and called a police officer friend, David Pritchett, and gave him the partial license plate numbers, along with the make and model of the SUV.*fn3
F.H., a Georgetown University student, testified that he woke up on June 8, 2008 at sometime after 4:00 a.m., to find Thomas sitting on the side of his bed.
F.H.'s bed was located in the same bedroom, at 1207 33rd Street, N.W., where B.C. had been assaulted the year before. On the night at issue, F.H. and his roommates had hosted a party. The house had "cleared out" by 1:30 a.m., and F.H. went to bed shortly after that. According to F.H., four or five hours later, he woke up to find Thomas sitting on the side of his bed. F.H. told Thomas to leave four or five times, and Thomas "acted like" he was going to leave. F.H. claimed that Thomas went down the steps, but then came back up. Thomas then walked down the hallway toward a bedroom where F.H.'s roommates were sleeping, and then returned to F.H.'s room. At that point, F.H. began screaming at Thomas to leave the house, and Thomas promptly left. F.H. reported the incident to the police that morning.
W.C., a Georgetown University student who lived at 1209 33rd Street, N.W., testified that he woke up on June 22, 2008 to Thomas massaging his shoulders in his living room. Prior to the incident, W.C. had drunk approximately twelve beers, and between 2:00 a.m. and 3:00 a.m., had fallen asleep on the couch in his living room. According to W.C., he then woke up to find Thomas massaging his shoulders. W.C. stood up, told Thomas "[g]et off me," and went into the bathroom to remove his contact lenses. W.C. testified that he then saw Thomas in the backyard, trying to enter 1207 33rd Street, N.W. (the attempted second-degree burglary charge). After explaining to Thomas that he could not leave that way, he led Thomas through the house at 1209 33rd Street, N.W., and out of the front door. W.C. did not report the incident to the police.
M.C., another Georgetown University student, testified that he woke up in August 2008 to Thomas massaging his ankles. M.C. had several drinks that night, and fell asleep on the couch in the living room of 1209 33rd Street, N.W., around 2:15 a.m. According to M.C., at approximately 4:30 a.m., he woke up to Thomas sitting on the arm of the couch, massaging his ankles. M.C. told Thomas to "get out," and Thomas tried to calm M.C. down. M.C. continued telling Thomas to leave, and Thomas left the house. M.C. admitted that Thomas may have apologized, and that he gave him a "high-five or . . . low-five" before he left. M.C. then spoke with his roommate, P.H., and after giving P.H. a description of the assailant, he called the police.*fn4
That same morning, between 5:30 a.m. and 6:00 a.m., Officer James Culp stopped Thomas because his heavily intoxicated passenger was hanging out of the vehicle. According to Officer Culp, a lookout description of the burglary suspect in the M.C. incident was given while Thomas was stopped. Officer Culp thought Thomas matched the description of the lookout, and called Officer Pritchett to let him know that he had a suspect stopped who matched the description. Thomas was asked to drive his vehicle to the front of 1209 33rd Street, N.W. so they could conduct a show-up identification. While Thomas was at the scene of the burglary, both M.C. and W.C. identified him as their assailant. M.C. was present when W.C. identified Thomas, and W.C. was present when M.C. identified Thomas. Officer Pritchett compared the license plate number on Thomas's vehicle to the license plate number that he had received from C.T., and determined that they were the same. Officer Pritchett called C.T., and told him that he "need[ed] to come down" because he thought they "ha[d] the guy [C.T. was] looking for." C.T. walked to the scene, and identified Thomas as his assailant (in the presence of W.C. and M.C.).
Later that morning, Detective Andrew Way conducted an interview of Thomas during which Thomas admitted that he had entered the house at 1209 33rd Street, N.W., assertedly in search of a party. Thomas said that he tapped M.C.'s shoulder while he was sleeping on the couch, and M.C. informed him the party was over, they shook hands, and Thomas left. Thomas denied fondling M.C.'s legs, and claimed that it was a "[m]isunderstanding."
Prior to trial, B.C. and F. H. both selected a photo of Thomas out of a nine-person photo array, and B.C. identified Thomas in court as the person who sexually assaulted him. F.H. also testified that he spoke to his roommate, P.H., about his assailant's description before picking Thomas from the photo array.*fn5
F.H. related that Thomas was in his room in June 2009, but he did not make a photo identification until August 2009.
At trial, M.C. and W.C. each identified Thomas in court, and testified that they were "100 percent" sure of their on-scene identifications. C.T. also identified Thomas in court, and testified that he had "no doubt" that Thomas was the same person he saw in his room and identified at the burglary scene. F.H. testified that he was "fairly certain" Thomas was his assailant.
In addition, the government presented evidence that Thomas had committed a sexual assault in Virginia. Through the testimony of the victim in that assault, the jury heard evidence that Thomas had brought the victim, who was intoxicated, to Thomas's apartment in Virginia on December 31, 2008. Thomas sexually assaulted the victim, who reported the incident to the police the following day.
In his defense, Thomas sought to introduce Winfield evidence that another individual, described in the media as the "Georgetown Cuddler," who sexually assaulted female Georgetown University students about the time that Thomas was being electronically monitored on these charges,*fn6 also committed the crimes that Thomas was charged with. However, the trial court precluded Thomas from introducing that evidence, finding Thomas had failed to proffer a sufficient nexus between the cited incidents and the offenses charged in this case:
The problem I have with the -- the instances that you proffer in support of your Winfield motion is that they all involve women as victims. And there's no offense charged with respect to Mr. Thomas that involves women at all. And the one incident that you charge or that you cite to where a man is involved, the suspect in that instance entered the house, apparently saw the man, and then left. I don't think . . . that's enough to make any connection between that conduct and the conduct in this case charged to Mr. Thomas.
The trial court concluded that because the proffered incidents were "dissimilar in terms of the conduct in the victims," the evidence "would be distracting to the jury" and would have had little or no probative value.
Thomas also sought to present expert testimony on identification regarding, among other things, post-event contamination and the correlation between confidence and accuracy. The trial court precluded Thomas's expert from testifying because "under the facts and circumstances" the expert's testimony would not be "beyond the keen [sic] of the average juror" nor would it "aid the trier of fact in this case." Subsequently, Thomas sought reconsideration of the trial court's ruling, and provided it the Kassin study, Saul M. Kassin et al., On the "General Acceptance of Eyewitness Testimony Research: A New Survey of the Experts, 56 AMER. PSYCHOL. 405 (2001). However, the trial court again concluded that the expert's testimony ...