Turner v. United States

• Citation: 116 A.3d 894
• Decision Date: 11 June 2015
• Docket Number: No. 12–CO–1539 , No. 12–CO–1542 ,No. 12–CO–1362 , No. 12–CO–1541 , No. 12–CO–1538 , No. 12–CO–1540 , No. 12–CO–1543.,12–CO–1362
• Parties: Charles S. TURNER, Christopher D. Turner, Russell L. Overton, Levy Rouse, Clifton E. Yarborough, Kelvin D. Smith, & Timothy Catlett, Appellants, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

116 A.3d 894

Charles S. TURNER, Christopher D. Turner, Russell L. Overton, Levy Rouse, Clifton E. Yarborough, Kelvin D. Smith, & Timothy Catlett, Appellants

v.UNITED STATES, Appellee.

No. 12–CO–1362

No. 12–CO–1538

No. 12–CO–1539

No. 12–CO–1540

No. 12–CO–1541

No. 12–CO–1542

No. 12–CO–1543.

District of Columbia Court of Appeals.

Argued April 29, 2014.

Decided June 11, 2015.

John S. Williams, with whom Robert M. Cary, Cadence Mertz, Jennifer M. Sasso, and Frances Y. Walters were on the brief, for appellant Clifton Yarborough.

Kevin D. Feder, with whom Michael E. Antalics, Joana Nairn, and Meredith Garagiola, Washington, DC, were on the brief, for appellant Russell L. Overton.

Jennifer Wicks was on the brief for appellant Charles Turner.

Shawn Armbrust, Barry J. Pollack, Michael B. Bernstein, and Justin P. Hedge, Washington, DC, were on the brief for appellant Christopher Turner.

Veronice A. Holt, Washington, DC, was on the brief for appellant Levy Rouse.

Donald P. Salzman, Washington, DC, was on the brief for appellant Kelvin D. Smith.

Cory Lee Carlyle was on the brief for appellant Timothy Catlett.

Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, James Sweeney, Kacie Weston, and Colleen Kennedy, Assistant United States Attorneys, were on the brief for appellee.

Robert B. Humphreys and Steven Schulman, Washington, DC, filed a brief on behalf of The Innocence Network as amicus curiae in support of appellants.

Stephen P. Braga filed a brief on behalf of The National Association of Criminal Defense Lawyers as amicus curiae in support of appellants.

John C. O'Quinn, Washington, DC, Savaria B. Harris, Traci M. Braun, Deborah S. Decker, and Michael B. Potere filed a brief on behalf of False Confessor Exonerees as amicus curiae in support of appellants.

Julia M. Jordan, Lee Ann Anderson McCall, and Elizabeth A. Cassady, Washington, DC, filed a brief on behalf of Former Judges and Prosecutors as amicus curiae in support of appellants.

Aderson Bellegarde François filed a brief on behalf of Howard University School of Law Criminal Justice Clinic & Civil Rights Clinic as amicus curiae in support of appellants.

Douglas Baruch, Jessica P. Neiterman, and Sujata Jhaveri, Washington, DC, filed a brief on behalf of Former Law Enforcement Officers as amicus curiae in support of appellants.

Before GLICKMAN and BLACKBURNE–RIGSBY, Associate Judges, and NEBEKER, Senior Judge.

Opinion

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 not receive a fair trial because the government withheld exculpatory and impeachment evidence in violation of its obligations under Brady v. Maryland,¹ and that newly discovered evidence, including witness recantations, established their actual innocence of the crimes against Mrs. Fuller. Appellant Yarborough additionally claimed that his trial counsel was constitutionally ineffective in failing to investigate his intellectual disabilities as grounds for suppressing the videotaped statement he made when he was arrested, which the government used against him at trial.

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

I. The Murder of Catherine Fuller and Appellants' 1985 Trial

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.

A. The Government's Case at Trial

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 Yarborough did not accompany the group into the alley, Alston recalled that Yarborough actively participated in kicking Fuller as she lay on the ground there. And while Bennett remembered that Alston and Webb held Fuller's legs as Rouse sodomized her, Alston thought appellants Overton and Charles Turner did so. In addition, Bennett and Alston each had made prior inconsistent statements to the police and the grand jury regarding who was present in the park and who participated in attacking Fuller.

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...