Argued Jan. 9, 2013.
[Copyrighted Material Omitted]
Peter H. Meyers, Washington, DC, for appellant.
David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman, Gary Wheeler, and John Cummings, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN, BLACKBURNE-RIGSBY, and BECKWITH, Associate Judges.
BECKWITH, Associate Judge:
Two nights after a double murder in northwest Washington, D.C., police arrested appellant De'Andre Williams near the site of the killings, reporting that Mr. Williams had just dropped a revolver and run from officers investigating an unrelated crime. A federal jury soon acquitted Williams of the resulting charge that he, as a convicted felon, possessed the revolver— but that did not settle the issue whether police in fact caught him with a gun that night. That is because the gun, a forensic examiner determined, could have been the murder weapon. At Williams's subsequent murder trial, the government called several witnesses to tell the story of the police chase, his arrest, and the recovery of the revolver, while Williams argued that after losing sight of the man they were chasing, police misidentified him as the one who dropped the gun. Evidence that Williams possessed the gun two days after the murders bolstered the government's circumstantial case against Williams, and the jury convicted him of the two murders and related charges.
Mr. Williams argues that he should have been allowed to tell jurors that the federal jury acquitted him in the gun possession case, so that they could conduct a " fair and balanced consideration of the evidence." This issue is one of first impression for this jurisdiction. Williams urges the court to adopt a rule that under certain circumstances recognized in a number of states, a trial court must admit evidence of the defendant's prior acquittal. We decline to
adopt such a rule. Although we conclude that a trial court has discretion to admit evidence of a not-guilty verdict, we hold that the trial court here did not abuse its discretion in refusing to admit evidence of Williams's acquittal. We also reject two other claims made by Williams. Some of his convictions merge, however, so we remand to the trial court with instructions to vacate them and resentence Mr. Williams.
Duane Hicks and Passion McDowney were each shot in the head and killed as they sat in Mr. Hicks's parked car the night of August 12, 1999. Arguing the motive for the crime was robbery, the government presented a narrative of the shooting through an eyewitness who testified that immediately after firing six shots through the front passenger window, the shooter went around to the driver's side, opened the front door, and grabbed a package the size of a loaf of bread from inside. The shooter ran off, but the witness was unable to give more than a general description of him and could not identify anyone when shown a photographic lineup. The witness said he then left the scene, in the 1300 block of Hamilton Street, and soon recounted the shooting to an officer he found outside a nearby Georgia Avenue restaurant.
Only two things in the government's case linked Mr. Williams to the crime in any significant way. He presented a strong defense to each of them. First, the government's eyewitness, Mark Coleman, testified that before the shooting, he saw the shooter lean with his hand against the roof of the car, between the two passenger-side doors, " like he was waiting for somebody to acknowledge he was there." Police recovered a latent palm print from this part of the roof, and an analyst, who later faced fierce cross-examination by the defense, testified the print's upper area matched that of Williams's palm print. Defense counsel challenged Mr. Coleman's statement that the shooter touched the car— a detail police did not record until after the palm print test was done, months into their investigation— as part of the shifting tale of a witness who wanted to be helpful and embellished his story to give police what they wanted. Williams supported this theory with forensic evidence that Mr. Hicks and Ms. McDowney were shot from the backseat of the car, not from the direction of the passenger window.
The government spent significantly more time proving another link between Mr. Williams and the murders: Williams's arrest two nights afterward in what was at the time an unrelated incident. That night, someone robbed a CVS on Georgia Avenue. Collis Timlick, an officer looking for the armed suspect, saw a black man riding a bicycle nearby and wearing clothing similar to the robber's. When Officer Timlick approached him, the man rode away, and as Timlick gave chase on foot, the man fell from his bicycle, dropping a .38 Smith & Wesson Special before continuing to flee. While Timlick stayed with the gun, another officer nearby heard his description of the runner over the radio and chased a similarly dressed man he saw running down Georgia Avenue, until the man dashed out of sight behind a row of houses on Hamilton Street. A third officer, one of several searching the area after the runner disappeared, found Williams lying down next to a fence behind one of the houses.
The government presented six witnesses to show that Mr. Williams was in possession of the .38, including the three officers involved in the arrest. Timlick and another officer identified Williams as the man they chased in connection with the CVS robbery. Two civilian witnesses— Williams's close friend Michael Johnson and Raquia Addison, a former girlfriend— testified that they spoke with Williams shortly after his arrest. According to them, Williams told each of them the police had caught him in possession of a gun and suspected him of robbery. Ms. Addison also was shown the .38 at trial and said it was the same gun she saw Williams with " two or three" times before the shooting. The defense, meanwhile, elicited testimony from officers that CVS employees said Williams was not the robber. And Mr. Johnson's testimony from a previous trial, which was read into the record here, demonstrated that Williams was charged not with the robbery but with possessing the dropped revolver. Counsel impeached Addison with prior statements implying the police merely were claiming Williams had a gun and that she did not know any details of what Williams's gun looked like; the defense also prompted Johnson to say Williams had claimed he was misidentified not only as the robber but also as the person who dropped the gun. Finally, the
defense argued that Williams's presence in the area of his arrest was innocent, while the real suspect got away, citing testimony that Williams visited a friend nearby that night and that people often walked the alley behind the Hamilton Street houses.
Testimony about the CVS incident was important to the government's proof because a police firearms expert concluded the revolver could have fired the bullets recovered from the murder scene. Although the parties extensively litigated before each trial whether this evidence was admissible in the first place, it was only at Mr. Williams's fourth trial that the defense sought, mid-trial, to tell the jury that Williams was acquitted of gun possession. While questioning the lead detective in the murder investigation about the revolver, counsel began to ask about the acquittal— " And you know that on December 20th, of 1999 Mr. Williams was found not guilty of having ..." — when the trial court sustained a government objection to the question. The trial court then had this to say at a bench conference:
I think the fact that he is found not guilty is not relevant evidence in this case. Indeed, it's not even relevant as to whether he really had the gun or not. The jury has heard that testimony, and they can make up their own mind about it. He's not being tried for that in this case that he has been acquitted, but that's not relevant evidence. And, you put it before the jury.
Later, counsel asked the trial court twice to take judicial notice of the acquittal, arguing that " [t]his is so prejudicial that my client has been accused of having the weapon without a jury balancing it with an acquittal." The judge declined, however, noting that despite the defense's calls for him to exercise discretion and let in the acquittal, he had reviewed case law on the matter and concluded " that the law says that that verdict does not come into this case." The jury found Williams guilty of two counts each of first-degree premeditated murder (while armed) and felony murder, along with other charges. The trial court sentenced him to a prison term of 90 years with a mandatory term of 65 years.
Mr. Williams makes three primary claims: (1) the trial court erred in not allowing him to enter into evidence the fact of his acquittal on a federal felon-in-possession charge; (2) the trial court violated his right to have the government preserve discoverable and potentially exculpatory evidence, under the Due Process Clause of the Fifth Amendment to the United States Constitution and Super. Ct.Crim. R. 16; and (3) the ...