Diamen v. US

• Citation: 725 A.2d 501
• Decision Date: 25 February 1999
• Docket Number: No. 96-CO-295, 96-CO-299, 96-CO-301.,96-CO-295, 96-CO-299, 96-CO-301.
• Parties: Michael A. DIAMEN, Joseph Nick Sousa, and Joseph Wayne Eastridge, Appellants, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

725 A.2d 501

Michael A. DIAMEN, Joseph Nick Sousa, and Joseph Wayne Eastridge, Appellants, v. UNITED STATES, Appellee.

No. 96-CO-295, 96-CO-299, 96-CO-301.

District of Columbia Court of Appeals.

Argued December 15, 1997¹.

Decided February 25, 1999.

John K. Zwerling, Alexandria, VA, for appellant Diamen.

Arthur F. Mathews² and Alyza D. Lewin, with whom Andrew B. Weissman, Sara E. Emley, and David G. Gray, Washington, DC, were on the brief, for appellants Sousa and Eastridge.

Channing D. Phillips, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher and Roy W. McLeese III, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB and RUIZ, Associate Judges, and KERN, Senior Judge.

SCHWELB, Associate Judge:

On January 6, 1975, following a five-week trial, appellants Michael A. Diamen, Joseph Nick Sousa, and Joseph Wayne Eastridge were convicted by a jury of first-degree murder while armed, D.C.Code §§ 22-2401, -3202 (1996), in connection with the stabbing death of Johnnie Battle. On March 16, 1979, appellants' convictions were affirmed by this court. Sousa v. United States, 400 A.2d 1036 (D.C.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 485, 62 L.Ed.2d 408 (1979).

In April 1995, following earlier unsuccessful attempts by Eastridge³ and Diamen⁴ to have their convictions set aside, the three appellants filed a joint motion to vacate their convictions pursuant to D.C.Code § 23-110 (1996). The motion was based on newly discovered evidence, and the appellants also claimed that the trial judge had committed constitutional error at their trial by precluding each defendant from eliciting from any witness or codefendant any evidence that would tend to inculpate any codefendant.

The motions judge denied the motion without a hearing. The judge held that the newly discovered evidence had not been presented within two years of final judgment, as required by Super. Ct.Crim. R. 33, and that the affidavits filed in support of the motion were insufficient in any event to require the court to hold a hearing. The judge did not address the appellants' claim that constitutional error was committed at their trial, perhaps because the appellants' convictions had been affirmed on direct appeal, and because the judge may have believed that, as a judge of the Superior Court, he lacked the authority to second-guess a ruling by this court.

On appeal from the denial of their motion, the appellants reiterate the claims made in the trial court, and they contend that the motions judge erred in denying the appellants an evidentiary hearing. We affirm.

I. PROCEDURAL BACKGROUND

The evidence adduced at the appellants' trial is set forth in detail in this court's opinion in Sousa, and we confine ourselves to a brief summary. The appellants, all three of whom are white, were members of a motor cycle club called the "Pagans." On November 1, 1974, several Pagans, including the appellants, went to the Godfather Restaurant on Wisconsin Avenue to continue a celebration of the birthday of one of the members of the group, a Pagan named Richard C. Richter.⁵ The proprietor of the restaurant, who was familiar with Richter and his group, directed an employee to deny them service. As the Pagans left the restaurant, they encountered a group of young black men, including the decedent, Johnnie Battle. Insults and hostile words were exchanged, and a Pagan threw popcorn at one of the black men. The unpleasantness escalated into threats of violence, and Battle went to his car to arm himself with a handgun. As he was walking back towards the restaurant, Battle was confronted by several Pagans who were carrying knives. In an apparent attempt to take preemptive action, Battle shot and wounded one of the Pagans, Bruce Hunter. Battle continued to fire, but his pistol jammed, and he began to run. Several of the Pagans then pursued Battle, caught him, and stabbed him to death.

A short time after the murder, the three appellants and their codefendant, Steven Jones, were apprehended by the police when Eastridge's car, which Sousa was driving, went through a red light. Jones had severe cuts on his hand, and blood was found on his clothing and on a newspaper in the vehicle. Small amounts of blood were found on the inside of Diamen's pants and on Sousa's shirt.⁶ Several knives were recovered from the automobile and its occupants, and there was testimony, vigorously denied by Diamen, that Diamen had discarded another knife while the vehicle was being searched. According to the testimony of Dorothy Willetts, an associate of several of the Pagans, appellants Sousa and Eastridge, who had been released on bond, admitted to Ms. Willetts, that they had participated in the killing of the decedent.

Testifying in their own defense, all three appellants denied any complicity in the pursuit of the decedent or in his murder. Jones also took the stand. Jones admitted that he chased Battle after Battle had shot Hunter. Jones claimed, however, that Battle had eluded him, and that he (Jones) did not participate in the killing and had no knowledge of it. All four defendants were convicted of first-degree murder while armed. The three appellants were sentenced to prison terms of twenty years to life, and each filed a timely notice of appeal.

On direct appeal, the convictions of Diamen, Sousa, and Eastridge were affirmed.⁷ The court held that the trial judge did not abuse his discretion by denying the appellants' motions for severance based, inter alia, on antagonistic defenses. Sousa, supra, 400 A.2d at 1042-43.⁸ The court also "examined the multitude of other contentions made by appellants and [found] them to be without merit." Id. at 1038 n. 1.

More than sixteen years after this court's affirmance of their convictions, the appellants jointly filed the § 23-110 motion which is the subject of the present appeals. They claimed that a six-year investigation conducted on their behalf by Centurion Ministries⁹ has produced evidence exonerating the three appellants and identifying the "real" murderers. The new evidence adduced by the appellants consisted primarily of the following:

1. an affidavit executed in December 1993 by the appellants' former codefendant, Steven Jones, in which Jones admitted his own participation in the stabbing of Battle,¹⁰ claimed that the three appellants were innocent, and asserted that his confederates in the killing were former Pagans Charles Jennings, John Woods, and a third man whom Jones declined to identify; it is undisputed, however, that Jennings and Woods are now deceased;

2. affidavits by three former Pagans who asserted, in 1993 and 1995 respectively, that Woods and Jennings, the two deceased men implicated by Jones, had both admitted their roles in the murder and had stated that the appellants were not involved;¹¹ these admissions by Woods and Jennings were allegedly made in the late 1970s;

3. an affidavit dated April 6, 1995, by John Gianaris, whom the appellants presented as a previously undiscovered eyewitness to the stabbing, and who stated, more than twenty years after the fact, that he saw "no more than four" men attacking Battle and that no car passed by the area at the relevant time; and

4. several affidavits expanding upon doubts cast at trial on the credibility of Ms. Willetts.

The appellants also claimed in their motion that the trial judge had committed constitutional error as described above. The motions judge, as we have noted, denied the appellants' § 23-110 motion without a hearing. This appeal followed.

II. NEWLY DISCOVERED EVIDENCE AND THE CLAIM OF ACTUAL INNOCENCE

The appellants contend that Centurion Ministries' lengthy investigation has resulted in the discovery of new evidence demonstrating their innocence. They assert that this showing of innocence entitles them to relief pursuant to D.C.Code § 23-110. We conclude, however, that in light of the provisions of Rule 33 of the Superior Court's Rules of Criminal Procedure and the applicable case law, the appellants' reliance on newly discovered evidence comes many years too late.

Rule 33 provides in pertinent part:

The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice .... A motion for a new trial based on the ground of newly discovered evidence may be made only before or within 2 years after final judgment, but if an appeal is pending, only on remand of the case may the Court grant the motion.

Super. Ct.Crim. R. 33. The appellants' motion was filed twenty years after they were convicted and sixteen years after the affirmance of their convictions.

Our local Rule 33 "is identical to the corresponding Federal Rule of Criminal Procedure." Williams v. United States, 374 A.2d 885, 889 n. 6 (D.C.1977). It is therefore to be construed consistently with the federal rule and, in the absence of applicable local precedent,¹² we look to the case law construing FED. R. CRIM. P. 33. See Waldron v. United States, 370 A.2d 1372, 1373 (D.C. 1977)

.

"The time limitations of Rule 33 are jurisdictional. The court is without power to consider an untimely motion for a new trial." 3 CHARLES ALAN WRIGHT, FEDERAL PRACTICE & PROCEDURE § 558, at 360 (2d ed. 1982 & Supp.1998) (footnotes omitted); see also United States v. Smith, 62 F.3d 641, 648 (4th Cir.1995)

(citing WRIGHT). Because Rule 33 requires that a motion based on newly discovered evidence be made within two years after final judgment, the court is without power to grant a motion filed after the expiration of that period. See, e.g., Guinan v. United States, 6 F.3d 468, 470-71 (7th Cir. 1993); Jacobanis v. United States, 256 F.2d 485, 486 (1st Cir.1958). The two-year limit is strictly enforced. Herrera v. Collins, 506 U.S. 390, 409, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); United States v. Kaplan, 101 F.Supp. 7, 13 (S.D.N.Y.1951) (Weinfeld, J.). A court is precluded...