GLICKMAN, Associate Judge:
In 1985, appellants were tried and convicted for the kidnapping, armed robbery, and first-degree felony murder while armed of Catherine Fuller on October 1, 1984. This court affirmed their convictions on direct appeal. Some twenty-five years later, appellants returned to Superior Court with motions to vacate their convictions pursuant to D.C.Code § 23-110 (2012 Repl.) and the Innocence Protection Act ("IPA"), D.C.Code § 22-4135 (2012 Repl.). Appellants claimed that they did
Appellants' motions were assigned to the Honorable Frederick H. Weisberg. He presided over a three-week evidentiary hearing on their claims in mid-2012. Judge Weisberg thereafter denied the motions in a written order. Before us now are the appeals from that decision.
We affirm. As we shall explain, we conclude that appellants' Brady claims fail because appellants have not shown a reasonable probability that the outcome of their trial would have been different had the government disclosed the withheld evidence in timely fashion. Appellants' IPA claims fail because the motions judge found the witness recantations to be incredible and appellants therefore have not established their actual innocence by a preponderance of the evidence. Finally, we reject Yarborough's ineffective assistance claim because he has not shown that he was prejudiced by his trial counsel's allegedly deficient performance.
Table of Contents
I. The Murder of Catherine Fuller and Appellants' 1985 Trial...................902
A. The Government's Case at Trial .........................................902
B. The Defendants' Alibis and the Government's Rebuttal....................904
C. Verdicts and Direct Appeal..............................................905
II. Appellants' Post-Conviction Motions: Brady and IPA Claims ................905
A. Witness Recantation ....................................................906
1. Calvin Alston and Harry Bennett.....................................906
2. Melvin Montgomery and Linda Jacob...................................907
B. Evidence Not Disclosed to the Defense...................................907
1. Undisclosed Alternative-Perpetrator Evidence........................908
a. The Witness in the Alley........................................908
b. James McMillan..................................................908
c. James Blue......................................................909
2. Impeachment Evidence................................................910
C. Expert Testimony........................................................911
D. The Motions Judge's Decision............................................911
III. Analysis of Appellants' Brady Claims......................................913
A. Brady and the Applicable Standard of Review...........................913
B. The Witnesses in the Alley..............................................915
C. James McMillan Evidence.................................................915
1. The October 1984 Robberies..........................................916
2. The 1992 Murder of A.M..............................................917
D. Ammie Davis's Accusation of James Blue..................................918
E. Impeachment Evidence....................................................921
F. Cumulative Materiality of the Undisclosed Evidence......................923
IV. Analysis of Appellants' IPA Claims..........................................926
V. Yarborough's Claim of Ineffective Assistance of Counsel.....................929 A. Background..............................................................930 1. Yarborough's Statement to Police....................................930 2. Yarborough's Suppression Motion.....................................931 3. The Hearing on Yarborough's Ineffective Assistance Claim............931 B. Analysis ...............................................................933 VI. Conclusion..................................................................937
Shortly after 4:30 p.m. on October 1, 1984, Catherine Fuller left her home on foot to go shopping. Around 6:00 p.m., William Freeman, a street vendor, discovered her lifeless body lying in a garage in the middle of an alley between 8th and 9th Streets Northeast, just north of H Street. One of the garage doors was open, enabling Freeman to catch sight of Fuller's body when he entered the alley to relieve himself. Mrs. Fuller had been badly beaten and violently sodomized, and had suffered massive blunt force injuries, including a ruptured liver and broken ribs. Her clothing and property were found strewn about the garage and the alley. The police were unable to find the object used to commit the sodomy or to recover any usable fingerprints or other physical evidence that could identify the perpetrators. The medical examiner could not determine from Fuller's injuries how many persons were involved in assaulting her.
After conducting more than 400 interviews, investigators developed the theory that Fuller was assaulted and killed by a large group of teenagers who initially set out, on the spur of the moment, to rob her. A total of thirteen individuals believed to have been members of that group were indicted. Two of them, Harry Bennett and Calvin Alston, pleaded guilty and agreed to testify for the government. A third defendant, James Campbell, whose case was severed for trial after his attorney became ill, eventually pleaded guilty as well. The remaining defendants — the seven appellants before us now and their co-defendants Steven Webb, Alphonzo Harris, and Felicia Ruffin — went to trial in the fall of 1985.
At the center of the government's case was the testimony of the two cooperating witnesses, Bennett and Alston. Bennett had pleaded guilty to manslaughter and robbery, Alston to second-degree murder. They provided similar accounts of the events leading to Fuller's death. According to them both, they were in a group of young men, including appellants, who were gathered in a park at 8th and H Streets Northeast on the afternoon of October 1, 1984, when they observed Fuller across the street. Alston admitted being the one who, after appellant Catlett sang a song about needing money, suggested that the group rob Fuller. Members of the group split into two bodies and crossed the street to attack Fuller at the alley between 8th and 9th Streets. Bennett, Alston, and others, including appellants, punched and kicked her, hit her with a stick or board, knocked her to the ground, and robbed her of her money and jewelry. Fuller then was dragged into a garage and stripped nearly naked. As some in the group held her legs and others stood and watched, appellant Rouse took a pole or pipe-like object and shoved it into her rectum. The group then dispersed.
Although Bennett and Alston agreed on the preceding outline of events, they differed on some important matters. Notably, while Bennett testified that appellant
Four witnesses to the crime corroborated Bennett and Alston's account. Two of them, Carrie Eleby and Linda Jacobs, testified that they came upon the attack when it was already in progress. Eleby implicated appellants Catlett, Overton, Christopher Turner, Smith, and Rouse, as well as Alston and Webb. She also put appellant Yarborough in the alley, but she did not remember seeing him attack Fuller. Jacobs saw Christopher Turner and Smith in the alley. Both witnesses saw Rouse sodomize Fuller.
Eleby and Jacobs had significant credibility problems. Both were PCP users. Eleby contradicted herself, could not keep names and dates straight, and claimed she did not remember anything she had told the police or the grand jury. Jacobs, too, was a difficult witness who contradicted herself on the stand and had trouble answering questions. Moreover, each witness's account was impeached or contradicted by other testimony. For example, contrary to her testimony at trial, Eleby told police that she and Jacobs arrived at the alley only after the police and the morgue staff were there, and she told the grand jury that appellant Smith did not hit or kick Fuller. In addition, Eleby testified that she and Jacobs were with their friend Tawana when they heard a scream coming from the alley, turned around and saw a group attacking a woman. But Jacobs testified they were not with Tawana and did not hear a scream. She claimed they were prompted to enter the alley by their friend Annette Taylor. But Taylor denied this and testified that she was nowhere near the scene at the time.
The other two eyewitnesses were Melvin Montgomery and Maurice Thomas. Montgomery testified that he saw appellants Catlett, Charles Turner, Overton, and Rouse standing with others in the park. Montgomery heard Catlett singing a Chuck Brown song about needing money, saw Overton point across the street at Fuller, and watched as those four appellants and others crossed the street in her direction.
Fourteen-year-old Maurice Thomas testified that he passed the alley and saw a group of people surrounding a woman. Those he saw included appellants Catlett, Yarborough, Rouse, Charles Turner, and Christopher Turner, and may have included appellant Smith and Harry Bennett.
The government put on other important evidence of appellants' guilt in its case-in-chief. First, the jury was shown a redacted videotape of Yarborough's statement to the police, in which he placed himself in the park, the alley, and the garage before
Second, Kaye Porter testified that she had asked Catlett about the rumors she had heard concerning the Fuller murder. Catlett responded that "all he did was kick her and somebody else stuck the pole up in her" because "she wasn't acting right."
Appellants Overton, Smith, Christopher Turner, Charles Turner, and Rouse put on alibi defenses.
Smith and Christopher Turner testified that they were at Smith's house on October 1. They said they first learned of Fuller's death later that night in a phone call from a girl named Renee Walker. Three of Smith's relatives corroborated his and Christopher Turner's alibis. Before the grand jury, however, they testified that Smith knew about Fuller's murder as early as 6:00 p.m. on October 1.
Rouse and Charles Turner had conflicting alibis. Rouse testified that he spent the afternoon of October 1 at a recreation center, restaurants and arcades with Charles Turner and a friend named Christopher Taylor, that he went to the alley at 8th and H Streets only after the police were already there, and that he then went at around 7:00 p.m. to the home of his
Christopher Taylor corroborated Rouse, but he was impeached with his admissions to police that he was in the park and heard the group decide to assault Fuller, and that he was in the alley and saw the murder. Catrina Ward confirmed that Rouse came to her house on the night of October 1. She also testified, however, that she saw blood splattered on the bottom of Rouse's pants leg, and that on later occasions Rouse told her he saw Fuller get killed and boasted that he "did the worst thing to that lady in the alley." Charles Turner was impeached with his statement to the police that Rouse and Gardner did not tell him about the crime. And Gardner, testifying as a rebuttal witness, denied going to Charles Turner's house or going anywhere with Rouse on the night of October 1.
The case was submitted to the jury on December 9, 1985. On the morning of December 16, the jury asked to see the videotape of Yarborough's incriminating statement to the police. That afternoon, after seven days of deliberations, the jury returned guilty verdicts against Catlett, Rouse, Smith, Charles Turner, Yarborough, and Webb; at the same time, the jury found their co-defendants Harris and Ruffin not guilty. The jury deliberated for an additional two days before returning its verdicts of guilty against the remaining defendants, appellants Overton and Christopher Turner.
This court affirmed the convictions on direct appeal.
In support of their Brady and IPA claims, appellants presented witness recantations, expert witness testimony, and other evidence at the hearing on their post-conviction motions in 2012 in an effort to show that the government withheld materially exculpatory and impeachment evidence from them at trial, and that they were actually innocent of Fuller's robbery, kidnapping, and murder. Appellant Yarborough also testified and presented evidence in support of his ineffective assistance claim. In opposition, the government presented testimony from the investigating detectives and the prosecutors who worked the case in 1984 and 1985. This section of our opinion discusses the evidence relevant to appellants' Brady and innocence claims; we discuss the evidence particularly relevant to Yarborough's
Alston and Bennett had finished serving their sentences when they took the stand in 2012 to recant their trial testimony. Each maintained that he knew nothing about Fuller's murder but had been pressured by police into making a false confession and, ultimately, testifying falsely at trial.
Alston was arrested and questioned by Detectives McGinnis and Sanchez about the murder for two-and-a-half hours on November 29, 1984. According to Alston, the detectives yelled at him, accused him of lying, and threatened him with a life sentence if he did not admit his complicity in the murder. They accused him of acting as a lookout for Rouse, Yarborough, Overton, Smith, and others they named. Eventually, Alston testified, he "gave in to their drilling" and falsely admitted to being the lookout and witnessing the attack on Fuller from the end of the alley.
This, Alston said, did not satisfy his interrogators. Detective Sanchez angrily told Alston he could not have seen or heard what was going on in the alley if he merely stood at the end of it. The detectives insisted that he had witnessed Fuller being beaten and sodomized in the garage and urged him to "come all the way clean" and put himself "in the case." Ultimately, Alston testified, he acquiesced and concocted a story of having participated in the crime using the information the detectives provided concerning what happened and who did it. (Nevertheless, Alston still did not admit to personally assaulting Fuller or being the one who proposed robbing her, and he steadfastly denied having received any money from the robbery.) After rehearsing his story with the detectives, they turned on the video camera and recorded his statement.
Bennett, who was interrogated for about four hours after he was arrested on February 6, 1985, similarly claimed that the detectives refused to believe his denials, threatened him with a life sentence, and "kept hammering" at him until he eventually "started saying what was on the news" and repeating whatever the detectives said to him "until they got me to say I was involved." The detectives pressed him to incriminate others, including several of the appellants here, and he did so. Bennett's interrogation also culminated in a videotaped statement. During the videotaping, Bennett testified, the detectives turned the camera off to correct details in his story. At one point, Bennett claimed, he told them that everything he had said was a lie, and the detectives became angry, rewound the tape, and recorded over that portion. Later on, Bennett testified, he was shown part of Yarborough's videotaped statement and given documents pertaining to the case so that he could further tailor his testimony.
Alston and Bennett also claimed that the lead prosecutor in the Fuller case, Jerry Goren, instructed them to alter their testimony at trial. Alston asserted that Goren told him he needed "to put my actual self in the violence that took place" to make his testimony more credible, and to "change the scenario" when other evidence conflicted with his account of the attack on Fuller. Alston said he complied with Goren's demands when, for example, he testified at trial that he himself came up with the idea to rob Fuller.
To rebut Alston's and Bennett's recantations and repudiate their allegations of misconduct, the government called Jerry Goren and Detectives McGinnis and Sanchez, among other witnesses. The detectives denied threatening Alston and Bennett with life sentences or telling them what to say or whom to name as Fuller's assailants.
Appellants also called Melvin Montgomery and Linda Jacobs to testify at the 2012 hearing. Their testimony proved to be unhelpful to appellants. Montgomery signed an affidavit in 2009 stating he lied on the stand in 1985 and that he saw appellants in the park at 8th and H Streets on October 1 only in the morning, not in the late afternoon (when Fuller was murdered). At the 2012 hearing, however, Montgomery disavowed the affidavit and denied perjuring himself at trial.
Linda Jacobs professed not to remember her trial testimony or much of anything else, but she insisted that she knew everything she said at trial was a lie because she was never in the alley on October 1. She vaguely claimed the police told her she was in the alley and "fed [her] information" about the murder, which she repeated to avoid being returned to her parents or accused of the crime herself. When the judge asked her what the government told her to say in 1985, she broke down emotionally and struggled to articulate how Fuller's murder made her feel.
Appellants contended that the government withheld evidence that the defense could have used (1) to construct an alternative-perpetrator defense premised on the theory that Fuller was attacked and killed by a single individual (or at most a very small number of persons); and (2) to impeach the prosecution witnesses who identified appellants as the perpetrators.
According to information contained in the files of the police and the prosecutors, three people — Jackie Watts, Willie Luchie, and Ronald Murphy — told investigators that at around 5:30 p.m. on October 1, they happened to be walking through the alley and by the garage where Fuller was murdered. Luchie and Watts heard the sound of groans coming from inside the garage. (Murphy recalled Watts saying she heard something like a groan, though he did not claim to have heard anything himself.) According to Luchie, both doors of the garage were closed at this time. The trio continued on their way without investigating the source of the groans. This information was not disclosed to the defense. At the 2012 hearing, Goren agreed that if the witnesses heard groaning at 5:30 p.m., it meant Fuller was still alive at that time. He also agreed that if (counterfactually, in his view) the assault was still in progress at that time, it could not have involved more than one or a very few assailants.
James McMillan is one of two persons appellants claim they could have argued at trial was the likely alternative, sole perpetrator of Fuller's murder had the government not withheld information about him.
At trial in 1985, William Freeman, the street vendor who discovered Fuller's body, testified that as he waited for the police to come, he saw two men run into the alley from 9th Street and stand very close to the garage for a few minutes. Freeman earlier had seen the two men walking up and down 8th Street. One of the men appeared to be concealing an object under his coat. When the police arrived, the two men ran away up the alley towards I Street.
What Freeman saw was, of course, known to the defense. What the defense did not know, and the government did not disclose, was who the two men were. Freeman had identified them to the police as James McMillan and Gerald Merkerson. It was McMillan who appeared to be hiding something under his coat.
McMillan was a potential suspect in the police investigation. Two other witnesses told police they saw him at the alley at the same time Freeman did, and they confirmed Freeman's observations of his suspicious behavior. (These witnesses also were not disclosed to the defense.) In addition, the police knew that McMillan lived on 8th Street about three doors down from the alley and that he had violently assaulted and robbed two other middle-aged women walking in the vicinity three weeks after Fuller's death.
Appellants argued that this was powerful evidence supporting the thesis that it was McMillan who murdered Fuller. In support of that thesis, they presented Dr. Richard Callery, a forensic pathologist, who testified that the cause of death for both Fuller and A.M. was blunt force trauma to the head and torso, and that each victim had suffered a traumatic anal sodomization resulting in severe internal injuries. Dr. Callery could not say the two murders were "signature crimes," but he testified that, in his experience, anal sodomy with an object occurred in considerably less than one percent of homicide cases. In addition to Dr. Callery's testimony, appellants presented a stipulation that, if he were called, an expert in sexual dysfunctions would testify that someone who commits an act of violent anal sodomy is likely to commit the act more than once.
Other information not disclosed to the defense concerned an accusation against a man named James Blue, a habitual criminal who, by 1984, had served time for assault and had a record of arrests for rape, sodomy, and armed robbery. On October 26, 1984, a police lieutenant named Frank Loney happened to be interviewing a woman named Ammie Davis, who was alleging police misconduct in connection with her arrest for disorderly conduct. According to Loney's written report of the interview, Davis inquired what would happen if she gave the officer "something on a homicide." Insisting that she did not want to get involved and would not testify in court, Davis proceeded to state that someone who just got out of jail on October 1 killed a woman that same day "for just a few dollars" in an alley off of H Street. At first Davis said she was present when the man committed the murder; she then said she was not "with" him and only saw him grab the woman by the back of the neck and pull her into the alley.
Davis was reluctant to say anything more. She refused to give a written or recorded statement and declared that she would not "go to court." Acknowledging that she was afraid of Blue, she brought the interview to a close with the assurance that she would call Lieutenant Loney and let him talk to her girlfriend. Davis never did call back, however.
Lieutenant Loney filed his report of Davis's statement without bringing it directly to the attention of the detectives who were investigating Fuller's murder. It did not come to their attention until August 1985.
Goren testified that he ultimately decided not to inform the defendants in the Fuller case of Davis's allegation because he "believed completely and strongly that Ms. Davis had no evidence in this case and that she was totally incredible." Goren came to that conclusion because Davis had given Loney two different versions of her story; she was unable to provide any further details or any information that could be corroborated; the only information she could provide about the girlfriend who purportedly would have confirmed her account was that her nickname was "Shorty"; Davis previously had accused Blue of another, unrelated murder and provided information that was determined to be false
On October 9, 1985, prior to the start of appellants' trial, James Blue shot and killed Ammie Davis. He was convicted of her murder and died in prison in 1993.
The government failed to turn over four types of impeachment evidence.
Second, the government did not disclose its knowledge of Eleby's extensive PCP use. At trial, she testified that she smoked PCP on October 1, but never before or since. Goren and other members of the investigation and prosecution team knew this was not the truth. Eleby was actually under the influence of PCP even when she viewed photos and identified persons who were in the alley, and Goren's notes indicate that she "had started using PCP again" later in the investigation.
Third, the government did not disclose grand jury testimony supporting the alibi of a man named Lamont Bobbitt, who Alston testified was present in the park and in the alley when Fuller was murdered. Bobbitt told the police he was elsewhere that evening, and in testimony before the grand jury, six witnesses corroborated his alibi. (The prosecutors did not believe the alibi because of contradictions in the testimony, but they decided they nonetheless lacked sufficient evidence to charge Bobbitt with Fuller's murder.)
Finally, the government did not disclose evidence that could have been used to impeach Maurice Thomas. At trial, Thomas testified that after he witnessed the attack in the alley, he ran home and told his aunt "Barbara" what he had seen. He claimed that Barbara told him not to say anything to anyone else. The police interviewed Barbara (whose real name was Dorothy Harris), and she said that she did not recall Thomas ever telling her anything about the attack.
Two expert witnesses testified in 2012 in support of the theory that Fuller probably was killed by one to three attackers rather than a large group, though they both admitted it was possible a larger group was involved. Dr. Callery (who also testified to the similarities between the murders of Fuller and A.M.) examined the autopsy report and opined that Fuller's injuries were not as extensive or widely distributed as he would have expected to see from a large-group attack, even if some members of the group merely held the victim and did not inflict injury themselves. Dr. Callery agreed, however, with the 1985 medical examiner's conclusion that it was impossible, from looking at the autopsy report, to say specifically how many people assaulted Fuller.
The second witness was Larry McCann, an experienced homicide investigator who testified as an expert in violent crime analysis and crime scene reconstruction. It was McCann's opinion, based on the autopsy report, crime scene photos and other investigation records, that the attack on Fuller was more likely committed by a single offender than by a large group of individuals acting together. Had there been multiple offenders, McCann testified, he would have expected to see the victim's clothing stretched, torn, or ripped, grab marks or abrasions on her ankles, legs, and wrists, more injuries, and multiple sexual assaults rather than the one. McCann conceded that, even in a group attack, some assailants might only strike minor glancing blows.
Judge Weisberg rejected appellants' IPA and Brady claims. As to the former, the motions judge found that appellants had "not come close to demonstrating actual innocence" because the witness recantations on which appellants relied were not credible. Beyond that, the judge also
Turning to appellants' Brady claims, the motions judge concluded there was no reasonable probability that the undisclosed evidence would have changed the outcome of the trial. This was so for three basic reasons: First, the judge noted, Ammie Davis's hearsay accusation against James Blue "was almost certainly inadmissible," and, in any event, it was "thoroughly discredited" and would not have convinced the jury to disbelieve the numerous eyewitness accounts of an attack by a large group of young men. "Not one of the approximately 400 other witnesses interviewed by the government mentioned James Blue as a possible perpetrator," the judge pointed out, "either alone or with others."
Second, the judge reasoned, the evidence pertaining to James McMillan was not material because no witness put him in the alley during the attack, and because even if he was present then, "it would not prove anything" about appellants since McMillan could have been a participant in the attack with them or merely a bystander. "For the `McMillan evidence' to be material in the Brady sense," the judge added, "he would have had to have committed the crime by himself or with Merkerson to the exclusion of the petitioners, and that possibility flies in the face of all the evidence."
Third, the judge found the undisclosed impeachment evidence to be of little significance even when viewed cumulatively. While Kaye Porter's admission that she lied about hearing Alston's confession, at Eleby's request, could have been used to impeach Porter and Eleby, the nondisclosure was not material because Porter was a "relatively minor" witness at trial and Eleby was extensively impeached at trial with her prior inconsistent statements and her admitted lies before the grand jury. Similarly, Eleby was cross-examined at trial about her use of PCP and additional evidence on that score would not have made a difference. Alibi testimony contradicting Alston's claim that someone other than appellants was present in the park likewise would have been of little help to appellants, the judge concluded, particularly since the alibi "may or may not have been truthful."
Appellants invoke a constitutional duty of governmental disclosure in criminal cases that the Supreme Court recognized in Brady v. Maryland
"To determine on appeal whether the government, through its representatives in the trial court, has violated its obligations under Brady, we consider: (1) whether the information in question is favorable to the accused; (2) whether this information was possessed and suppressed by the government, either willfully or inadvertently; and (3) whether that information was material" to guilt or punishment.
Evidence is material within the meaning of Brady "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."
Some past decisions of this court have reviewed a trial court's ruling on Brady materiality for "reasonableness."
Notwithstanding our general adherence to stare decisis, we are not obligated "to follow, inflexibly, a ruling whose philosophical basis has been substantially undermined by subsequent Supreme Court decisions."
Pursuant to the foregoing principles, we now proceed to discuss the significance of the undisclosed evidence at issue in this appeal — first on an item-by-item basis, and then cumulatively.
The statements of Watts, Luchie, and Murphy had the potential to advance appellants' single-perpetrator theory.
As the government argues, if Fuller was being assaulted when Watts, Luchie, and Murphy passed next to the garage, one might think they would have heard more noise; the fact that they heard only the sounds of groans would seem to imply that the attack was over by then and that Fuller's assailants were gone. Moreover, Luchie might have been mistaken in recalling that both garage doors were closed (Watts and Murphy did not say that), and even if they were, there was time for someone unknown to open one of the doors and depart before Freeman arrived and found Fuller's body. Despite these considerations, we agree with appellants that the alley witness evidence has potential weight in a cumulative materiality analysis.
The government had reason to suspect James McMillan of having participated in Fuller's murder. He was a violent criminal prone to assaulting and robbing vulnerable women in the area; he was seen in the alley shortly after Fuller's murder, acting suspiciously and concealing an object under his coat; he fled when the police arrived; and James Campbell and
The parties disagree as to whether evidence of the two robberies McMillan committed in October 1984 would have been admissible at trial. Appellants and the government agree that the robberies did not amount to "reverse Drew evidence," i.e., "evidence of a recent similar crime with a distinct modus operandi — which the defendant could be shown not to have committed."
Appellants contend, however, that evidence of the robberies committed by McMillan would have been admissible in support of a third-party perpetrator defense under Winfield v. United States.
"Winfield evidence" is evidence offered to show that someone other than the defendant committed the crime. For such evidence to be admissible,
Winfield evidence is not limited to proof of the third party's motive and "practical opportunity" to commit the crime;
Here, we think it reasonable to conclude that McMillan's commission of two other robberies in October 1984 would have corroborated the other evidence that he joined in the October 1 attack on Fuller. The government principally argues that the probative value of that corroboration would have been minimal, and substantially outweighed by the risk of unfair prejudice, because there were few similarities between the two robberies and Fuller's murder.
We reach a different conclusion with respect to McMillan's murder of A.M. seven years after appellants' trial. Because evidence of this murder obviously could not have been presented at appellants' trial, it is not relevant to whether the government violated its Brady obligations. A Brady violation cannot be predicated on the government's failure to do the impossible and disclose evidence that does not yet exist. McMillan's murder of A.M. likewise has no bearing on the question of the materiality of any evidence that the government actually did withhold from the defense. This is so because materiality under Brady turns on a retrospective assessment of whether a past trial might have had a different outcome had available evidence not been kept from the defendant — not on whether new, previously unobtainable evidence not kept from the defendant might lead to a different result in a new trial. There are other procedures available for exploring whether new evidence calls for a new trial — for example, the procedures of the Innocence Protection Act that appellants employed in this case — but they are subject to different
There is reason to doubt that Ammie Davis's accusation of James Blue would have carried significant weight with the jury, given her lack of credibility and the complete absence of other evidence associating Blue in any way with Fuller's murder. But we need not examine that question. Davis, having been murdered prior to the start of appellants' trial, was unavailable to testify at it. Her out-of-court statements accusing Blue did not fall within any exception to the rule against hearsay. Hence her statements would have been inadmissible as evidence that Blue killed Fuller. Evidence that is inadmissible cannot be material for Brady purposes unless there is a reasonable probability that its disclosure would have resulted in a different trial outcome because it is likely to have led to the discovery of other, admissible evidence favorable to the defense.
Appellants, citing Chambers v. Mississippi,
The Supreme Court reversed Chambers's conviction, holding that "under the facts and circumstances of this case the rulings of the trial court [in combination] deprived Chambers of a fair trial" by unjustifiably interfering with his fundamental right to defend himself.
The rule that a party may not impeach his own witness was, in the Court's words, "a remnant of primitive English trial practice" that "bears little present relationship to the realities of the criminal process" in the present day.
It is plain that this case is nothing like Chambers. Davis's statement implicating Blue in Fuller's murder would have been excluded at appellants' trial pursuant to a routine and uncontroversial application of the basic rule against hearsay; unlike the statements against penal interest in Chambers, it did not even arguably fall within any of the recognized hearsay exceptions for statements "made under circumstances that tend to assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination."
Every one of the Court's enumerated reasons why hearsay is excluded as untrustworthy applies to Davis's statement. In short, the exclusion of that statement on hearsay grounds would not have been arbitrary or disproportionate to the purposes that the rule against hearsay is designed to serve. It therefore would not have violated appellants' due process rights. The Constitution does not displace the hearsay rule in this case.
Appellants further argue that even if Davis's statement itself was inadmissible, it might have led them to discover admissible evidence that could have affected the outcome of the trial in their favor.
In sum, the evidence concerning James Blue contributes to the cumulative materiality of the undisclosed evidence only to the very limited extent it would have had value in demonstrating a slip-up in the government's investigation.
We agree with Judge Weisberg that the withheld impeachment evidence, whether considered piece-by-piece or in conjunction with the other undisclosed evidence, had little prospect of changing the
The fact that Kaye Porter initially lied to the police at Carrie Eleby's behest, to corroborate Eleby's story that she had not seen the assault and that Alston had confessed his involvement to her, could have been used to impeach both Porter and Eleby. But Porter provided evidence at trial only against appellant Catlett — she testified to a conversation in which she asked him about Fuller's murder, and he responded that he "didn't do nothing to her" and that "all he did was kick her and somebody else stuck the pole up in her" because "she wasn't acting right." This testimony was impeached with Porter's grand jury testimony that Catlett simply told her he "didn't do nothing to that lady." Moreover, the other evidence against Catlett was second only to that against Rouse: among other things, Alston, Bennett, Eleby, and Thomas all testified that they saw Catlett physically attack Fuller; Montgomery saw him in the park before the murder and watched him cross the street and head toward Fuller; Thomas also recalled hearing Catlett tell someone why he and Fuller's other assailants killed her; and Catlett had no alibi.
Eleby too was impeached with her prior false statements to the police and to the grand jury and contradicted by other witnesses, and as described above, her inability to remember and keep her facts straight also undermined her credibility. It is hard to see why the additional impeachment would have made a difference to the jury's assessment of Eleby's credibility.
The undisclosed evidence of Eleby's extensive PCP use was also of little consequence. Eleby's claim that she smoked PCP for the first and last time on October 1 was unbelievable on its face. Jacobs testified that she saw Eleby use PCP at other times, and even if the jury disbelieved most of Jacobs's testimony, it had no reason to doubt her assertion, otherwise unrelated to the case, that her close friend was a drug user.
We likewise are not persuaded that disclosure of the evidence contradicting Alston's assertion that Lamont Bobbitt was one of the persons present in the park and alley at the time of Fuller's murder (i.e., the evidence supporting Bobbitt's alibi, which several witnesses corroborated in testimony before the grand jury) would have made a difference with respect to the jury's evaluation of Alston's credibility. The jury was willing to acquit Harris even though Alston testified that he was an active participant in the murder. We do not see how knowing that one other person (who was not another defendant at trial) whom Alston named as present was not actually there would have swayed the jury.
Finally, although Maurice Thomas's testimony may have been an important factor in the jury's verdicts, his aunt's statement (that she did not recall Thomas having told her about the attack on Fuller) was unlikely to have discredited Thomas in any significant way. One of the strengths of his trial testimony was his candid acknowledgement
In sum, we think none of the impeachment evidence was material individually, and that it adds little to any cumulative materiality analysis.
We may turn now to the question of the cumulative materiality of the undisclosed exculpatory and impeachment evidence. To reiterate, the question is whether there exists a reasonable probability that the result of appellants' trial would have been different had the evidence been disclosed to the defense. We have concluded that, in addressing this question, our primary focus must be on the potential value to the defense of (1) the testimony of Watts and Luchie that they walked past the garage where Fuller lay dying at around 5:30 p.m. and heard groans coming from inside, and that the garage doors were closed; and (2) the identification of James McMillan as the person seen acting suspiciously in the vicinity of the garage sometime after the murder. While we do not ignore the potential value to the defense of the impeachment evidence and the limited non-hearsay use that appellants could have made of Davis's accusation of James Blue, we think the contribution of that evidence would have been negligible for the reasons we have already given.
Appellants argue that the undisclosed evidence was valuable not because it exculpated any of them directly, but because it would have enabled them to present an alternative single-perpetrator theory of the crime (with expert witness support) as a counter-narrative to the prosecution's case: Watts and Luchie may have overheard the assault being committed by only a limited number of persons — perhaps only one — rather than the large group described by the prosecution witnesses; and McMillan, given his presence on the scene and criminal history, plausibly may have been one of that limited number of assailants, though no prosecution witness named him as such. The physical (as opposed to the eyewitness) evidence of the attack adduced at trial arguably supported, or at least was not inconsistent with, a single-perpetrator theory, and there was some other evidence at trial to corroborate it.
The fact remains that the government presented the testimony of several eyewitnesses, including two participants who admitted their own guilt, who did implicate appellants in a group attack. No witness to the attack who testified at trial disputed their overall description of how the crime was committed, and the eyewitnesses were corroborated by evidence of incriminating admissions by some of the appellants. It is true that the prosecution witnesses contradicted themselves and each other on various points, and some of them had potential
Nor, we conclude, did the undisclosed evidence truly provide substantial support for a single-perpetrator theory of the crime, or any theory that excluded appellants as the perpetrators. The groans, undoubtedly Fuller's, that Watts and Luchie heard coming from the garage between 5:30 and 5:45 p.m. did not mean the assault was still occurring or that any assailant was still present. On the contrary, the fact that Watts and Luchie heard nothing else and saw no signs of any activity more likely indicated that the assault was over and that the assailants were gone. This was entirely consistent with the government's evidence, and provided no reason to doubt it, inasmuch as Fuller left her house around 4:30 p.m. and all of the witnesses described a fast-moving event lasting, in all probability, no more than a few minutes. Luchie's observation that both garage doors were closed shortly before Freeman found one of them open would have raised a question, but it too does not mean anyone was still in the garage with Fuller when Luchie passed by. It surely would not have been enough to turn a jury that found the government's witnesses credible, as this jury did. It is far more likely, in our view, that the jury would have believed that Luchie was mistaken, or that someone came upon the scene and opened the garage door in the interval between Luchie's departure and Freeman's arrival, than that the jury would have thought it plausible that all the government's witnesses were lying and that Luchie had stumbled upon an assault in progress.
The evidence regarding James McMillan perhaps could have led the jury to suspect that he participated in the attack on Fuller, notwithstanding the fact that he was not charged and no eyewitness said he was involved. Alternatively, the jury might have suspected that McMillan arrived on the scene only after Watts and Luchie departed (but before Freeman arrived), and that he and his companion Merkerson looked in the garage — providing an explanation for Luchie's and Freeman's observations of the garage door that did not rely on the supposition that the assailants were still present when Luchie was there.
Moreover, a theory that McMillan could have been the sole perpetrator of the attack on Fuller, or only one of two or three perpetrators, would have been exceedingly implausible and difficult for the jury to accept — and not only because of the dearth of any evidence inculpating him. To think McMillan could have committed the crime himself, the jury would have had to think not only that all the government witnesses were lying or mistaken about every defendant at trial, but that Alston and Bennett, the government's two cooperating witnesses, were innocent even though they had each pleaded guilty to homicide and continued to admit their guilt. That would not have been a plausible claim to make to the jury. It would have been about as daunting for the defense to contend that McMillan committed the crime with just one or two accomplices. Those accomplices would surely have to have been Alston and Bennett (which begs the question of Merkerson's involvement), but if they were going to admit their own guilt and cooperate as part of their plea bargains, there was no apparent reason why they would have shielded McMillan.
Our conclusion is the same for each appellant individually. Overton and Christopher Turner point to the fact that the jury found it most difficult to convict them. It is true that in some ways the evidence against these two was weaker than that against their co-defendants. Maurice Thomas could not remember whether Christopher Turner was in the alley and affirmatively denied seeing Overton there, and Vincent Gardner did not contradict these two defendants' alibis the way he did those of other defendants. But Overton, Christopher Turner, and the other appellants are similarly situated with respect to the way in which appellants contend the undisclosed evidence regarding the number of assailants and McMillan's possible involvement could have undermined the government's case against them. The evidence either would have provided significant ammunition in support of a single-perpetrator defense or not (and we conclude not). It had no bearing on whether any one individual defendant was part of a large group attack.
This case is not like Kyles or Miller, the two cases on which appellants principally rely. In those cases, there was no dispute as to how the crime occurred, only a dispute as to the identity of the perpetrator. In each case, the Brady violation was based on the suppression of substantial evidence that directly undercut the prosecution's proof of identity and supported the most plausible third-party perpetrator
Here, the undisclosed evidence (aside from the inconsequential impeachment evidence) would not have directly contradicted the government's witnesses or shown them to be lying, and it did not tend to show that any given appellant was misidentified. Rather, what is at issue is the basic structure of how the crime occurred. This makes the burden on appellants to show materiality quite difficult to overcome, because it requires a reasonable probability that the withheld evidence (in its entirety, and however appellants would have developed it) would have led the jury to doubt virtually everything that the government's eyewitnesses said about the crime. It would be different, for example, if the government had suppressed evidence of the kinds of allegations Alston and Bennett made in their later recantations. That, if believed, would have given the jury a basis on which to doubt the government's entire case. The same might be true if the government had suppressed credible and admissible evidence directly contradicting the accounts of the crime provided by the eyewitnesses. Here, however, the sum of the undisclosed evidence did not rise to that level of significance. We agree with the motions judge that, even if all that evidence had been disclosed in a timely and appropriate fashion, appellants have not demonstrated a reasonable probability that the result of their trial would have been different. The withheld evidence cannot "reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."
The IPA
A defendant is entitled to a new trial if he can show his actual innocence by a preponderance of the evidence.
We review the denial of a motion to vacate a conviction or for a new trial under the IPA for abuse of discretion.
Appellants' claims of actual innocence depend on the credibility of the recantations by four witnesses who testified against them at trial, and in particular on the recantations by Alston and Bennett. The motions judge concluded that appellants "have not come close to demonstrating actual innocence" because he found the recantations to be "not worthy of belief." Such a credibility determination, made after the judge had the opportunity to hear the recanting witnesses' live testimony and observe their demeanor, may be overturned only if "it is wholly unsupported by the evidence."
As the motions judge noted, witness recantations in general are "properly viewed with great suspicion" because they are "very often unreliable and given for suspect motives,"
In short, the judge evaluated the recantations of Alston and Bennett in light of the entire evidentiary record, taking into account their demeanor both on the witness stand and during their allegedly coerced confessions, and weighing their recantations against their previous sworn testimony and other evidence of their guilt and petitioners' guilt.
We also perceive no error in the judge's finding that the purported recantations of Montgomery and Jacobs were worthless. We need not belabor this point. As to Jacobs, the judge fairly concluded that her recantation was unreliable because it "did not indicate with any specificity or clarity just which parts of her prior account were untrue."
Without the discredited recantations, appellants' remaining new evidence was clearly not enough to overcome the government's proof of their guilt and show their actual innocence by a preponderance of the evidence, let alone by clear and convincing evidence. Appellants argued that the "unrebutted scientific evidence," i.e., the expert opinion testimony of Dr. Callery and McCann, showed them to be innocent. We agree with the motions judge that this does not qualify as "new evidence" under the IPA, because appellants, in the exercise of reasonable diligence, could have presented such testimony at their trial.
Finally, McMillan's horrific murder of A.M. in 1992 may tend to make it more likely that he was involved in the attack on Fuller eight years earlier. Nevertheless, we agree with the motions judge that "these two brutal murders could not be characterized as signature crimes," and that "[w]hatever may be said of the similarities between the two crimes, they certainly do not prove that James McMillan murdered Mrs. Fuller to the exclusion of [appellants], when all of the credible evidence points the other way."
In the videotaped statement he gave following his arrest, appellant Yarborough admitted having been present at the alley and witnessing appellants' attack against
On October 4, 1984, three days after Fuller's murder, Yarborough was interviewed as a witness to the incident by Detectives McGinnis and Sanchez. Their questions and Yarborough's answers were recorded in an eight-page typewritten statement.
Yarborough was not arrested until the morning of December 9, 1984. On that occasion, he again waived his Miranda rights and agreed to be questioned by Detectives McGinnis and Sanchez. His interrogation culminated in an hour-long videotaped statement. At the outset of that statement, Yarborough confirmed that he understood and had waived his Fifth Amendment rights in writing, that no promises had been made to him in return for his statement, and that no force had been used against him.
Prior to trial, Yarborough moved to suppress his videotaped statement. His sole contention at the suppression hearing was that the detectives had employed threats and physical abuse to coerce him into waiving his rights and admitting he was present when Fuller was murdered. The detectives denied it. Yarborough's only evidence of mistreatment — he did not take the stand and testify to it — was the fact that, after his statement was videotaped, the police took him to the hospital, where he was treated for pain and swelling in his left knee and released. The hospital records reflected that Yarborough reported his leg had been injured in the course of his arrest. In his videotaped statement, however, Yarborough said he had hurt his leg sometime before he was arrested, and Detective McGinnis testified that Yarborough told him he had injured his knee playing sports. After taking this evidence and viewing the videotape, the trial judge found that Yarborough did not sustain his knee injury during his interrogation, that his claims of abuse were unsubstantiated, and that he voluntarily waived his Miranda rights.
On direct appeal, Yarborough argued that the trial judge erred in denying his motion without taking into consideration "his age, education, and experience with the criminal justice system."
Yarborough took the stand for the first time at the 2012 hearing on appellants' post-conviction motions. He did so in part to present evidence relevant to his ineffective assistance of counsel claim (namely, that he took special education classes in junior high and high school and could not read well), but principally to assert his innocence and reiterate, this time in his own words, his previous claim that the detectives coerced him by means of physical violence and threats of violence into waiving his rights and falsely incriminating himself. Contradicting the statements he gave to the police on October 4 and December 9, 1984 (and other evidence adduced at trial), Yarborough asserted that he spent the afternoon and evening of October 1, 1984, at his girlfriend's house, was not at 8th and H Streets when Fuller was attacked, and did not witness the crime at all.
Yarborough claimed that the eight-page question-and-answer statement of October 4 was a total sham: The police, he said, wrote it in advance of his interview without his knowledge, and Detective McGinnis directed him to initial virtually every line and sign every page while covering it with his hand to prevent Yarborough from reading it.
As to the December 9 videotaped statement, Yarborough claimed it was the product of extensive physical abuse by Detective Sanchez, threats of violence by both
What he said on tape about the crime, Yarborough testified, came in part from what McGinnis told him to say (off-camera, just before the videotaping commenced), and in part from his own imagination. Because he did not admit to having participated in the robbery and assault of Fuller, Yarborough expected to be released after the videotaping.
Both detectives testified at the hearing and contradicted Yarborough's account of his interrogations. They denied ever physically abusing Yarborough or threatening him in any way, telling him he could not invoke his rights, feeding him information, or directing him what to say or sign. The detectives averred that Yarborough himself provided the information in his eight-page statement on October 4; McGinnis described Yarborough as being able to understand and answer their questions in a responsive, "cogent" manner. The detectives acknowledged that on December 9, when they questioned Yarborough after he waived his rights and before he agreed to give a videotaped statement, they sometimes yelled at him, accused him of lying, and told him he would be better off if he would just tell the truth. They admitted playing a "good cop/bad cop" routine in which Sanchez pretended to be enraged, McGinnis ushered him out of the room, and Sanchez then banged on the door, demanding to be let back in. At one point, Sanchez either pretended to or actually did tear off his t-shirt for dramatic effect. But Yarborough did not appear to be intimidated by these tactics. He continued to deny any personal involvement in the attack on Fuller, and he adhered to certain details of his story that the detectives questioned (notably, whether he received money taken from Fuller, which Yarborough firmly denied).
Two witnesses at the 2012 hearing testified in support of Yarborough's claim that an investigation by his trial counsel of his cognitive impairments would have yielded support for a motion to suppress his videotaped statement on voluntariness grounds. First, Dr. Michael O'Connell, a forensic psychologist, testified that Yarborough had an adjusted full scale I.Q. score of 69.5,
Second, Chandera Hill (Yarborough's girlfriend in 1984) testified that she regularly helped Yarborough with his homework, often doing it for him because he had trouble with reading, comprehension, and pronunciation.
In rejecting Yarborough's ineffective assistance claim, and concluding that evidence of his mental impairments would not have changed the outcome of the motion to suppress his videotaped statement, the motions judge found, inter alia, that Yarborough's testimony at the hearing was "patently incredible," and that the evidence did not "bear out any of [his] extraordinary claims" of physical abuse, threats, and other misconduct by the detectives who obtained his statements.
In sum, the judge found that Yarborough's videotaped statement
A claim of ineffective assistance of counsel has two components:
The performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.
As the Supreme Court has said, "there is no reason" for an appellate court to address both components of the ineffectiveness inquiry if it determines that the defendant has made an insufficient showing on one of them. "In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."
To satisfy the prejudice component of the ineffectiveness inquiry, a defendant's burden is to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
At the pretrial suppression hearing, the government bore the burden of proving that Yarborough's videotaped statement was voluntary by a preponderance of the evidence.
Because Yarborough's intellectual limitations and suggestibility could have impaired his effective assertion of his rights and rendered him vulnerable to police coercion, they unquestionably were relevant to the voluntariness inquiry in this
First, the contention that Yarborough's videotaped statement was the product of his intellectual limitations and consequent vulnerability to police suggestion is flatly inconsistent with Yarborough's own testimony at the 2012 hearing and what he apparently told his trial counsel in 1985 — that the detectives coerced him into waiving his rights and making a false statement against his will by force and violence. This assertion by Yarborough means that his putative vulnerability to police suggestion had nothing to do with his waiver and statement. Indeed, so far as appears, Yarborough has never maintained that his statement and incriminating admissions were the product of undue suggestion or trickery by his interrogators, or of his own suggestibility, confusion, naïve desire to please the police, inability to appreciate the gravity of his situation, or the like. As the motions judge observed in his decision, Yarborough claimed "the police beat the statement out of him under circumstances that would have caused the strong as well as the weak to succumb to the pressure." This is devastating to Yarborough's alternative claim that his intellectual limitations could have persuaded the trial court to suppress his statement as involuntary, since it means the argument would have been vitiated and frustrated by Yarborough's inability to support it with his own testimony.
In addition, the other evidence in its totality refutes the claim that the detectives took advantage of Yarborough's low intelligence and suggestibility to coerce his videotaped statement. That hour-long exchange with the detectives is itself compelling evidence otherwise. Whatever pressure Yarborough was under to confess his participation in the attack on Fuller, he did not yield to it.
There is no indication of coercion or lack of voluntariness on the videotape. It can
In short, due to his intellectual limitations, Yarborough may have been highly suggestible, compliant, and prone to making faulty judgments about his own best interests — but that does not mean the police obtained his videotaped statement by taking advantage of those vulnerabilities. The evidence to the contrary convinces us that there is no reasonable probability that a motion to suppress his statement as involuntary based on his intellectual limitations would have succeeded, or that competent counsel aware of Yarborough's mental disabilities would have thought such a motion worth pursuing under the circumstances of this case. We therefore hold that Yarborough has not shown the necessary prejudice from his trial counsel's failure to investigate his mental limitations to prevail on his claim of ineffective assistance of counsel.
For the foregoing reasons, we affirm the order of the Superior Court denying appellants' motions for relief from their convictions under D.C.Code §§ 22-4135 and 23-110.
So ordered.
Appellants suggest they could have asked Davis to prepare a statement about Blue's involvement in Fuller's murder that would have been admissible at trial in case of her unavailability through another witness under the hearsay exception for past recollection recorded. See Mitchell v. United States, 368 A.2d 514, 517-18 (D.C.1977). But appellants could not have satisfied the requirements for admission under that exception because such a statement would not have been made at or near the time of the putative assault by Blue on Fuller, and because it does not appear appellants could have called a witness who would have been able to vouch for the accuracy of the statement from personal knowledge of that event. See id.
