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Caston v. United States

Court of Appeals of Columbia District

September 29, 2016

Joel Caston, Appellant,
v.
United States, Appellee.

          Argued January 19, 2016

         On Appeal from the Superior Court of the District of Columbia Criminal Division (FEL-11733-94) Hon. Gregory Jackson, Post-Conviction Motion Judge.

          Jonathan Zucker, with whom Patricia Daus was on the brief, for appellant.

          Christopher Macchiaroli, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman and Frederick Yette, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Thompson and Easterly, Associate Judges; and Kravitz, Associate Judge, Superior Court of the District of Columbia. [*]

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the trial court's order is vacated, and the matter is remanded for further proceedings consistent with this opinion.

          OPINION

          PHYLLIS D. THOMPSON ASSOCIATE JUDGE.

         In 1996, a jury convicted appellant of the August 1994 fatal shooting of Rafique Washington and of related weapons offenses. In December 2011, after this court had affirmed appellant's convictions on direct appeal and subsequently affirmed the denial of his motion filed pursuant to D.C. Code § 23-110 (2001), [1] appellant filed a motion to vacate his convictions under the provisions of the Innocence Protection Act codified at D.C. Code § 22-4135 (2001) (the "IPA"). The trial court held an evidentiary hearing on the IPA motion and thereafter denied the motion, stating that it could not "find that it is more likely than not that [appellant] is actually innocent of the crime." This appeal followed.

         Appellant asserts numerous claims of error, several of which we reject. As explained in more detail below, however, in denying appellant's IPA motion, the Superior Court judge (1) seemed, mistakenly, to regard new evidence that was presented - an affidavit and hearing testimony from a putative eyewitness to the murder who stated that appellant was not the shooter - as mere "impeachment evidence" that is inadequate to warrant relief under the IPA; (2) discredited that witness's statements on the basis of inconsistencies between statements contained in his affidavit and in his hearing testimony, without regard to whether the inconsistencies were trivial or insignificant and whether they were explainable; (3) did not critically examine the weight of the trial evidence; and (4) contrary to this court's guidance in Bouknight v. United States, 867 A.2d 245 (D.C. 2005), appears ultimately to have adjudged the credibility of the (putative) eyewitness's testimony in light of the court's adverse determination about appellant's own credibility. While we accord "great deference to the trial court's role as the trier of fact on the ultimate issue of 'actual innocence' under the IPA, " Richardson v. United States, 8 A.3d 1245, 1249 (D.C. 2010), we cannot be confident that, had the judge's decision not been influenced by the foregoing factors, he would have reached the same conclusion about the likelihood that appellant is "actually innocent of the crime." Accordingly, we remand the matter to the trial court for reconsideration in light of this opinion.

         I. The Evidence at Appellant's Trial[2]

         The evidence at appellant's 1996 trial (on the charge of first-degree murder and related weapons charges) established that on the evening of August 14, 1994, Washington was shot and killed in front of the New China Carry Out (the "carryout") at the corner of 16th Street and Good Hope Road, S.E. Government witness Edward Thompson testified that on that evening, he rode to the carryout with Washington, a man named "Gene, " and driver "Mark." After the group had made their purchases, Thompson walked across the street to use a payphone, leaving Washington, Gene, and Mark standing on the steps in front of the carryout. Thompson returned a few minutes later and asked the others to get into the nearby car so they could leave. As Thompson was trying to open the car door, he heard a gunshot and saw Washington fall in front of the carryout's front door. Thompson testified that he then saw appellant "c[o]me from out the shadow of the carryout, " run toward Washington, place a revolver inches from Washington's body, almost touching Washington's head, and fire "about five" additional shots.[3] Thompson testified initially that appellant was "standing over" Washington, but then explained that appellant was "steadily moving" while he was shooting, and "wasn't just standing in one spot when he was shooting" Washington. Appellant then fled, and Thompson, Gene, Mark, a woman named Lazetta Uzzle, and Uzzle's boyfriend Kevin Molden (nicknamed "Half" or "Haf") all stood around Washington's body. Thompson testified that he saw Half search through Washington's pockets, but that he did not know whether anything was taken. Everyone fled the scene before the police arrived. Thompson testified that, at some point before the shooting, Washington told him that he (Washington) "ha[d] a problem with [appellant]."[4]

         Uzzle also testified at trial. She told the jury that shortly before the shooting, she saw appellant, whom she had known her entire life, talking with another man inside 1641 W Street, S.E. Uzzle then walked north on 16th Street, looking for Washington so she could purchase cocaine from him. At some point, while standing at the intersection of 16th and U Streets with Half, Uzzle saw Washington drive by in a car, which also contained Thompson, Gene, and Mark. Washington told Uzzle and Half that he did not have any cocaine and then went into the carryout. Soon thereafter, Uzzle, who was then about a block away from the carryout, heard gunshots, but did not see who fired the shots.[5] She ran in the opposite direction of the gunshots, but at some point, turned around and headed back toward the carryout to join Half, whom she had seen run "towards the shot." Uzzle arrived at the carryout to see Half going through Washington's pockets. Gene was on the scene as well. Thompson ran past Uzzle and was behind the car, and Mark was standing nearby. Half took money out of Washington's pockets. Uzzle then ran back in the direction of the building where she had seen appellant earlier that evening. Uzzle explained that she ran from the scene because "Ha[l]f and [she] had just took the money off [Washington]" and she "didn't want to be around when the police came." Uzzle spotted appellant again and told him "to go home" because Washington had just been killed and because appellant, who had fought with Washington a few weeks prior, [6] would be the prime suspect for the murder.

         The government also presented evidence that two days after the shooting, police spotted appellant and two other men engaged in suspected narcotics activity. All three men were "holding their waistbands as if they had a gun." As officers approached, appellant and the other men fled and ran inside an apartment. Officers found two of the men "come from out of the hallway closet" and found two guns on the floor of the closet. An officer found appellant "peep[ing]" out from a closet in the nearby back bedroom. The officer did not see a gun in appellant's hand, but searched the closet and found a chrome .44 Magnum revolver sticking out from a shoebox that was on a shelf.[7] The Magnum revolver was tested for latent fingerprints, but none were found. A firearms expert testified that bullet fragments recovered from Washington's body and from the crime scene "were in fact fired through the barrel of th[e] .44 Magnum revolver[.]"

         Finally, the government introduced evidence that about a week after the shooting, police executed a search warrant at appellant's mother's residence, where appellant also resided. Underneath appellant's mattress, police found a "speed loader" - a device used for rapidly loading ammunition into a firearm - containing six rounds of .44 caliber ammunition as well as additional rounds of ammunition.

         II. The Affidavits and Hearing Testimony in Support of Appellant's IPA Motion

         In support of his IPA motion, appellant submitted affidavits from Lloyd Rodgers, Uzzle, and Jermaine Brown. Appellant's counsel explained to the court (the Honorable Gregory Jackson) that after interviewing Rodgers, counsel had decided not to call him to testify at the IPA hearing because he "really couldn't elucidate much."

         Rodgers stated in his affidavit that he was an eyewitness to the shooting on August 14, 1994. Specifically, he stated that he was inside the carryout ordering food when he saw Washington, Gene, and Mark enter the carryout. After he exchanged greetings with the men, he left the carryout and noticed a "slim brown/dark-skinned guy dressed in all black wearing a baseball cap standing at the phone booth."[8] Before Rodgers could open the door of his parked car, he saw the three men exit the carryout, and then heard a gunshot. After taking cover, Rodgers saw the man from the phone booth standing over Washington and firing rounds into Washington's body before running off. After the shooter fled, Gene and Mark were standing there and "their buddy Eddy [presumably, Thompson]" ran over from across the street. According to Rodgers, "they" told him that the person who had shot Washington was Half. Rodgers stated in addition, "I know without a shadow of a doubt that the guy I saw commit this was not Joel Caston."

         Uzzle, Brown, and appellant all testified at the hearing on appellant's IPA motion. Uzzle testified that, on the evening of the shooting, she was speaking with Washington about buying some cocaine when Half interrupted the conversation and began arguing with Washington about Uzzle's "having [had] sex with [Washington]."[9] According to Uzzle, Washington "pulled a gun out on Half[.]" Half retreated after Uzzle told the men that they needed to "cut that out, " but Uzzle heard him say that "this wasn't the end of it, that he'll be back." Uzzle interpreted Half's words as meaning that Half "was going to get [Washington] for pulling [a] gun on him." Uzzle testified that Half then "ran up the street" toward where she and Half lived, and that she "knew he was running to go get a gun[.]" A little while later, Uzzle heard gunshots coming from the direction in which Half had run. When Uzzle ran in that direction and arrived on the scene, she saw Half putting a gun inside his pants as he stood over Washington's body, went through Washington's pockets, and took money and drugs.[10] Half then ran off and Uzzle followed him. While running back to her residence, Uzzle saw appellant (whom she regarded as a son and referred to as her "nephew, " although he was not related by blood) about four or five blocks from the scene of the murder.[11] She did not see appellant "near the murder, " and she testified that there was "no way that he could have . . . left from the scene of the crime" and arrived at where she saw him blocks away unless he was "Superman." Uzzle told appellant that he should go home because Washington had just been shot and appellant would be the "first one . . . blamed" because of the fight he and Washington had had two weeks earlier. Appellant was "surprised" to hear about the shooting.[12] Later in the evening, when Uzzle and Half were both in their home again, Uzzle asked Half what he had done, and Half responded, "I killed him, don't worry about it, he's dead."[13] Uzzle testified that Half subsequently was killed and that she was told that Washington's brother "killed Half for killing [Washington]." Uzzle relocated to Louisiana after Half's death because she was "scared that [Washington's brother] was going to come looking for [her] [be]cause [she] knew that he had killed Half."

         Uzzle testified that after she moved to Louisiana, she had contact with appellant's family a "couple of times, " six or seven years after appellant's trial, and, at some point, talked with some of appellant's family members about what she knew about the murder and Half's role in it. She had ceased having contact with them for many years because she had been a government witness. She testified that she did not tell the police about what Half did because she was afraid she could go to jail for helping to smoke the cocaine and spend the money Half took from Washington. She further testified that she did not tell the police that Half shot Washington, even though she knew that appellant was suspected of the murder, because she believed that telling the police that appellant was blocks away and could not have been the shooter "would have been enough for them not to lock him up." She also agreed that her 30 or 40 years of substance abuse on and off had affected her memory "[a] whole lot."

         Brown testified at the IPA hearing that on August 14, 1994, when he was fifteen years old and when it was dark outside, he was walking toward his uncle's house after leaving a friend's home where he had been playing video games, when he saw Half, whom he knew from "hang[ing] out" at the carryout, "shooting off at some people" ("probably - like three males and one girl") who were "coming outside the carryout."[14] At one point Brown testified that Half was "not even like five feet away from" the carryout door when he started shooting, but at another point agreed that Half was about 17 feet away from the carryout door when he started shooting. Brown saw "sparks come out" and saw a man fall. Brown testified on direct that he did not see Half do anything further with the gun and did not see anything else Half did while the man was on the ground. On cross-examination, however, asked about the statement in his affidavit that he rose up from behind the car he was hiding behind and watched Half walk up and fire more shots at the man, [15] Brown testified that when Half was shooting, "he's still walking up on him. Not like he's just standing there."[16] Brown further testified that he ducked behind a car after seeing the shooting, but ran when he saw Half coming his way. When Brown went to his uncle's house and reported to his uncle and mother what he had seen, his mother told him to say nothing about it. Brown told no one else about what he had seen and did not return to the neighborhood. Brown testified that he did not know appellant "back then, " that he did not know who appellant was prior to his walking into the courtroom, and that he became involved in this matter only after reconnecting with appellant's niece Rashida in 2009, after running into her at the "food stamp place"; Rashida and Brown had been close friends during the 1992-94 period, but, according to Brown, he had not seen her since then. When Rashida and Brown saw each other in 2009, she asked Brown why he had stopped coming to the neighborhood, and he told her about the shooting he had witnessed at the carryout. Appellant's sister thereafter showed Brown a photograph of appellant, and Brown told her that appellant was not at the scene of the shooting. After speaking with appellant's sister, Brown spoke with an investigator, who typed the affidavit for his signature.

         Appellant, who did not testify during his trial, was the final witness at the IPA hearing.[17] He denied being present when Washington was murdered, denied playing any role in the murder, and denied having any contact with the firearm reportedly used in the shooting. He also testified that his altercation with Washington a few months prior to the shooting was a mere "verbal dispute." Appellant further testified that he did not recall any conversation with Uzzle about the potential that he would be a suspect in Washington's murder. He explained that he was one of a number of men in the neighborhood who were "allowed to hang out" in the apartment where police found him and the alleged murder weapon; that Half was one of the men who hung out there and was there, in the back bedroom, on August 16, 1994, the day police found the alleged murder weapon in a closet in the apartment's back room; and that he (appellant) was not in a closet in that bedroom. He further testified that he had never met Brown before seeing him in the courtroom. As to Uzzle, appellant testified that he first learned that she had been at or near the scene of the murder when she testified at trial. He acknowledged that after his arrest, he did not try to contact her or ask his lawyer, family, or anyone else to contact her before or during trial or prior to 2009.

         After the IPA hearing, the Superior Court judge issued a written order explaining as to each of the witnesses why his or her testimony did not warrant a new trial. We discuss the court's reasoning in Parts IV and V below.

         III. Applicable Law

         In relevant part, the IPA provides that "at any time, " "[a] person convicted of a criminal offense in the Superior Court . . . may move the court to vacate the conviction or to grant a new trial on the grounds of actual innocence based on new evidence." D.C. Code §§ 22-4135 (a) and (b) (2012 Repl.).[18] The motion must "set forth specific, non-conclusory facts" and must identify the specific new evidence, establish how it demonstrates the movant's actual innocence, and establish why the evidence is "not cumulative or impeaching." § 22-4135 (c)(1)-(3). As relevant in this case, "new evidence" is evidence that "[w]as not personally known and could not, in the exercise of reasonable diligence, have been personally known to the movant at the time of the trial or the plea proceeding[.]" D.C. Code § 22-4131 (7)(A).[19] In determining whether to grant relief, the trial court "may consider any relevant evidence, but shall consider the following: (A) The new evidence; (B) How the new evidence demonstrates actual innocence; (C) Why the new evidence is or is not cumulative or impeaching[.]" § 22-4135 (g)(1)(A)-(C). The motion must also include an affidavit by the movant stating, under penalty of perjury, that the movant "is actually innocent of the crime that is the subject of the motion, and that the new evidence was not deliberately withheld by the movant for purposes of strategic advantage." § 22-4135 (d)(1). If, after considering those factors, "the court concludes that it is more likely than not that the movant is actually innocent of the crime, the court shall grant a new trial." § 22-4135 (g)(2). If the court "concludes by clear and convincing evidence that the movant is actually innocent of the crime, the court shall vacate the conviction and dismiss the relevant count with prejudice." § 22-4135 (g)(3).

         This court reviews the denial of a motion to vacate a conviction or for a new trial under the IPA for abuse of discretion. See Richardson, 8 A.3d at 1248. "[W]e must give great deference to the trial court's role as the trier of fact on the ultimate issue of 'actual innocence' under the IPA, and thus we apply the clearly erroneous standard of review to the trial judge's rejection of alleged newly discovered evidence offered to prove 'actual innocence.'" Id. at 1249 (citation omitted). "Accordingly, the scope of our review is narrow, both on the question whether appellant has been diligent in proffering 'new evidence' and whether that evidence establishes appellant's 'actual innocence.'" Id. That said, "[t]he statutory construct itself fully accommodates consideration of the [IPA] movant's credibility." Bouknight, 867 A.2d at 258. For that reason, this court will evaluate whether the trial court has "unnecessar[il]y and inappropriate[ly] . . . depart[ed] from that construct by recognizing [the movant's] credibility as a separate basis for [denying an IPA motion], independent of the considerations set forth by the statute." Id.

         IV. The Motion Court's Analysis

         The court found that Rodgers' proffered testimony did not qualify as "new evidence" within the meaning of the IPA because, even though Rodgers purportedly "made himself known to multiple individuals . . . on the scene at the time of the murder, " appellant failed to establish "what prevented him from obtaining Mr. Rodgers' testimony sooner." The court further found that the inconsistency between Rodgers' physical description of the shooter and Brown's physical description of the shooter called into doubt the reliability of Rodgers' testimony and his "ability to perceive the events that night."

         As to Uzzle's testimony, the court concluded that it, too, was not "new evidence." The court emphasized that appellant was aware by the time Uzzle testified at trial, if not before, that "she had information about this offense[, ]" i.e., "first-hand knowledge of the circumstances related to the murder of Mr. Washington." Yet, the court observed, despite appellant's "close personal and family ties" with Uzzle, "there is no indication that [he] did anything to discover at that time the purported exculpatory evidence that [Uzzle] now proffers." The court found that "it would have taken minimal effort for [appellant] to contact Ms. Uzzle and obtain th[e] favorable testimony she now purports to offer[, ]" but that the record gave no indication that either appellant or his counsel "ever attempted to contact her or obtain her testimony."

         The court also found that Uzzle's affidavit and IPA hearing testimony constituted - "at best" - "[i]mpeachment evidence [that] alone is insufficient to establish a claim for relief under the IPA." In addition, citing inconsistencies between Uzzle's trial and IPA hearing testimony, the court found that her hearing testimony was "not sufficiently credible to show that 'it is more likely than not that [appellant] is actually innocent[.]'"[20]

         The court was satisfied that Brown's testimony sufficed as new evidence, finding "nothing to suggest that the exercise of due diligence would have identified Mr. Brown any sooner." However, the court found that appellant had not shown that Uzzle's and Rodgers' testimony, "along with that of Mr. Brown[, ] is more than mere impeachment evidence[.]" In addition, the court focused on the "inconsistent and contradicted accounts" set out in Brown's affidavit and his hearing testimony, matters that the judge said "seriously undermine [Brown's] credibility" ...


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