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Johnson v. United States

Court of Appeals of Columbia District

April 14, 2016

TERRY JOHNSON, APPELLANT,
v.
UNITED STATES, APPELLEE

          Argued,  May 5, 2015

Page 75

          Appeal from the Superior Court of the District of Columbia. (CF1-24796-11). (Hon. Herbert B. Dixon, Jr., Trial Judge).

         Chris Kemmitt, Public Defender Service, with whom James Klein and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

         Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Michelle N. Bradford, and John P. Gidez, Assistant United States Attorneys, were on the brief, for appellee.

         Before GLICKMAN and THOMPSON, Associate Judges, and FARRELL, Senior Judge.

          OPINION

Page 76

          Glickman, Associate Judge

          The question at appellant Terry Johnson's trial was whether he was the masked man who gunned down Andre Wiggins on the street outside his home in broad daylight. Lacking direct evidence of the shooter's identity, the prosecution relied on evidence of the pre-existing enmity between appellant and Wiggins, which had erupted in open warfare between them the previous month, and of incriminating admissions allegedly made by appellant after the shooting. The jury was persuaded by this evidence and found appellant guilty of second-degree murder while armed and related firearm offenses.

Page 77

          What the jury did not know when it arrived at its verdict was that Wiggins had two other enemies--two men he recently had assaulted and robbed--who also may have had the motive and opportunity to kill him. Appellant's principal claim in this appeal is that the trial court committed reversible error under Winfield v. United States [1] when it precluded him from presenting any evidence of these potential third-party perpetrators to rebut the government's case against him. We agree with this contention, reverse appellant's convictions, and remand for a new trial.

         Appellant also argues that the trial court erred in a few other respects: (1) in declining his request for sanctions after it found a violation of Brady v. Maryland [2] in the government's failure for over a year to disclose information in its possession regarding one of the potential third-party perpetrators of Wiggins's murder; (2) in permitting the government to make the false and misleading assertion in rebuttal argument that appellant was the only person who had a motive and the means to kill Wiggins; and (3) in curtailing his bias cross-examination of a jailhouse informant. Because appellant's Winfield claim by itself entitles him to a new trial, his objection to the rebuttal comment is moot and his remaining issues, while not moot, require only limited discussion at this juncture.

         I.

         Appellant was tried for the murder of Andre (" Dre" ) Wiggins, who was shot and killed shortly before noon on October 26, 2011, as he was walking across the street from his home at the corner of Division Avenue and Clay Street, Northeast, near the Clay Terrace neighborhood. Wiggins was gunned down by a man in a ski mask. A witness happening to look out her apartment window saw the masked man emerge from an alley in the 5200 block of Clay Street and approach Wiggins on foot. The man fired several shots at Wiggins and then fled back through the alley.

         The government presented no witness who could identify Wiggins's masked assailant or provide more than a vague description of him.[3] There likewise was no forensic or physical evidence that could be used to identify the shooter or link appellant to the crime. Lacking such direct evidence of appellant's guilt, the prosecution relied heavily on testimony about animosity and prior violence between Wiggins and appellant leading up to the shooting, and about incriminating statements appellant allegedly made in its aftermath.

         Although the men's enmity arose after Wiggins began dating appellant's ex-girlfriend earlier in 2011, their hostility burst into violence in the two months preceding Wiggins's death. On the evening of September 16, 2011, Wiggins was hanging out on Clay Terrace when he noticed appellant driving around the block. Angered by appellant's presence, Wiggins borrowed a gun from his friend, Antowine Baker, and fired several rounds into appellant's car.[4] Appellant drove off. He was not injured

Page 78

and told a police officer who encountered his bullet-ridden vehicle later that night that he did not know who had shot at him. But several evenings later, appellant allegedly found Wiggins at Marvin Gaye Park and ran after him wielding a semi-automatic handgun.[5] Wiggins was able to outrun appellant and escape. Later that same evening, Wiggins, Baker, and two other friends, all of them armed, drove to Field Place, where appellant lived, in an effort to find and kill him. Unable to locate appellant, however, the group disbanded without attacking anyone.[6]

         A month later, on the morning of October 26, 2011, Myriah Simmons, appellant's former girlfriend[7] and mother of his daughter, had an upsetting encounter with Wiggins. Simmons testified that as she was leaving her home on Clay Street to walk her daughter to school, she saw Wiggins, who lived across the street, get into a truck and follow her and her daughter as they walked on Division Avenue to the school. When they arrived, Wiggins pulled up alongside her, stopped, rolled down his window, and silently stared at her for a few moments before driving away. After dropping off her daughter, Simmons reported this encounter to appellant's mother, Shannon Johnson. Simmons heard Johnson phone Wiggins and angrily tell him to leave Simmons and her granddaughter alone " because they had nothing to do with it." A little later that morning, Simmons spoke by phone with appellant and told him about her encounter with Wiggins. Appellant, sounding angry, told Simmons to get some clothes from her house and not go back there.

         It was this same morning that Wiggins was shot and killed. In addition to relying on the foregoing evidence of appellant's motive and hostility toward Wiggins, the prosecution sought to link appellant directly to the murder with three other pieces of evidence. First, cell phone tower records introduced through an expert witness placed appellant in the general vicinity of the crime scene around the time of the murder. The data did not pinpoint appellant's location or establish that he was at or particularly close to the crime scene, however; indeed, it did not exclude the possibility that he was at home or elsewhere in his own, relatively nearby, neighborhood.

         Second, the government elicited Simmons's testimony before the grand jury about a phone conversation between appellant and his mother shortly after the shooting. Simmons testified that she was with appellant's mother and heard her tell appellant that the police were at Clay Street and Division Avenue and ask him what had happened; and she heard appellant's voice on the phone, answering, " [I]t's tooken [ sic ] care of. I did it. It's okay." At trial, Simmons claimed all this was a lie she told because the police threatened her that " if [she] didn't tell them what they wanted to hear, [she] was not going home to [her] child." The police denied this, and Simmons's generally uncooperative demeanor on the witness stand did nothing to enhance the credibility of her recantation. Nonetheless, there was no record of the phone conversation in appellant's cell phone records, an inconsistency the government could not explain, except by suggesting

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(without evidence) that appellant might have used another, unidentified phone when he spoke with his mother.

         Third, a jailhouse informant named Brandon Terry testified that appellant told him the reason he was incarcerated when they happened to be housed in the same unit of the D.C. Jail in February 2012. According to Terry, appellant said that after " a guy named Dre had shot his car up," he went looking for him with a friend named " Phil" who had a gun, and when they found Dre, he " do what he got to do." [8]

         The defense attacked this as a fabrication by an unreliable witness who readily admitted that he told prosecutors about appellant's statement because he hoped for a big reward--a substantial reduction of the lengthy prison sentences he had received following convictions in the District of Columbia and Maryland for murder and other crimes. Moreover, there were additional reasons to be suspicious of Terry's testimony. On two occasions in March 2012, shortly after he allegedly heard appellant incriminate himself, Terry met with prosecutors as part of his effort to provide useful information in exchange for a favorable plea deal in his then-pending murder case. Although Terry had every incentive to report appellant's murder confession in these debriefing sessions, he inexplicably made no mention of it. But on April 11, 2012, a month after his debriefing ended, Terry was given a new cellmate at the Jail. This new cellmate turned out to be none other than Wiggins's friend Antowine Baker, who at the time was cooperating with the prosecution of appellant in exchange for a plea deal of his own. Shortly after Baker became his cellmate, Terry notified the prosecutors that he had new information to offer. The prosecutors agreed to meet with Terry for a third debriefing session in May 2012, and only then did Terry claim to have heard appellant incriminate himself in Wiggins's murder back in February. Appellant contended at trial that Terry simply fabricated this claim based on what he learned from his cellmate Baker.[9]

         II.

         Proof of appellant's motive and opportunity to kill Wiggins was a central component of the case against him at trial; as the government argued in closing, when the jury understood " why" Wiggins was killed, then it would " know beyond a reasonable doubt . . . who" killed him. " [T]here's only one person," the prosecutor told the jury in rebuttal argument, " who on October 26 had a motive and a means and a reason to want to kill Andre Wiggins . . . . And that one person you know is Terry Johnson." [10]

         Appellant sought to blunt the force of the government's motive argument and raise a reasonable doubt about his identification as Wiggins's killer by introducing evidence that other men with animosity toward Wiggins had a comparable motive and the opportunity to commit the murder. We have held that defendants have a constitutional right to present

Page 80

" third-party-perpetrator" evidence of this sort; for it to be admissible, it need only " tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense." [11] The " focus" of this standard for admissibility " is not on the third party's guilt or innocence, but on the effect the evidence has upon the defendant's culpability, and . . . it need only tend to create a reasonable doubt that the defendant committed the offense. . . . [T]here is no requirement that the proffered evidence must prove or even raise a strong probability that someone other than the defendant committed the offense." [12]

          To satisfy the " reasonable possibility" standard of admissibility,

a defendant must proffer some evidence, either circumstantial or direct, of a third party's actions, motives, opportunity, statements or declarations against penal interest. Such evidence may consist of one fact or circumstance, or a set of facts or circumstances, which, in the aggregate, establishes the necessary link, connection or nexus between the proffered evidence and the crime at issue.[13]

         If the argument for admissibility is based on a specific third party's motive, the defense ordinarily must proffer that this person also had the " practical opportunity" to commit the crime.[14] " Practical opportunity" means that the third party had " at least inferential knowledge of the victim's whereabouts" and was not incarcerated or otherwise physically unable to commit the crime; proof actually placing the third party at or near the crime scene is not required.[15] The reasonable possibility standard, then, " insures the exclusion of evidence that is too remote in time and place, completely unrelated or irrelevant to the offense charged, or too speculative with respect to the third party's guilt." [16]

         The trial court precluded appellant from introducing his proffered third-party perpetrator evidence. The court deemed the proffered evidence " too speculative" to indicate that a third party had a practical opportunity to kill Wiggins.[17] Appellant contends that the ...


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