Dowtin v. United States

Decision Date05 August 2010
Docket Number02-CF-1465,No. 02-CF-1379,03-CO-1472,03-CF-173,05-CO-191.,02-CF-1379
Citation999 A.2d 903
PartiesJames W. DOWTIN, Appellant,Griffith D. Smith, Appellant,andGregory D. Epps, Appellant,v.UNITED STATES, Appellee.
CourtD.C. Court of Appeals

COPYRIGHT MATERIAL OMITTED

Joanne M. Vasco, Hyattsville, MD, appointed by the court, for appellant Dowtin.

Gene R. Johnson, Marion, IN, appointed by the court, for appellant Smith.

Kenneth H. Rosenau, appointed by the court, for appellant Epps.

John P. Gidez, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and Roy W. McLeese, III, Thomas J. Tourish, Jr., and Amanda Haines, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ and THOMPSON, Associate Judges, and KING, Senior Judge.

KING, Senior Judge:

James Dowtin, Gregory Epps, and Griffith Smith appeal their convictions stemming from the killing of Jerod Jackson, arguing inter alia that a videotaped statement Dowtin gave to police was admitted into evidence in violation of his constitutional right against self-incrimination. We hold that any error with respect to the admission of the statement was harmless as to Dowtin, that Epps and Smith have no standing to assert such a challenge, and that the other arguments that Epps and Smith advance are without merit. Accordingly, we affirm.

I.

On December 22, 2000, fourteen-year-old Jerod Jackson, accompanied by Robert Pough and Donita Foxx, retrieved, from Harold Howard, a jacket that had previously been stolen from Jackson. Jackson and the others then drove away but were followed by a Chevrolet Caprice. A short time later, the Jackson vehicle crashed. Epps and Smith, the latter armed with a gun, emerged from the Caprice and chased and caught the fleeing Jackson. Epps and Smith then drove away in the Caprice, with Jackson in the car. Epps, Smith, and Dowtin later beat Jackson, and Michael Bradford, as he testified at trial, heard Epps tell Jackson he was “going to die tonight.”

Dowtin, Epps, and Smith later met at 14th and T Streets, S.E., where Bradford saw shovels in the back seat of Dowtin's car, also a Caprice, and heard Dowtin say Jackson was in the trunk. Eric Johnson testified that he was in Dowtin's car when Dowtin arrived at 14th and T and that Dowtin told him to get out because Dowtin had to go somewhere; Johnson shortly thereafter saw Dowtin carrying a shovel. Epps told Dowtin to “take him,” apparently referring to Jackson, “out to the railroad tracks.” Smith gave Dowtin a gun, and Epps told Bradford to go with Dowtin. Harold Howard went with them as well.

Dowtin drove to a location behind a school and told Bradford and Howard to hit Jackson with a stick if he moved when the trunk was opened. Bradford thought better of continuing to participate and decided to walk to his home nearby. Just before leaving the scene, he saw Dowtin and Howard taking the apparently unconscious Jackson toward adjacent railroad tracks. A few minutes later, Bradford heard shots from behind the school.

Less than an hour later, when Bradford encountered Dowtin, Epps, and Smith on the street, Dowtin said he had killed Jackson. Later he also admitted killing Jackson to a cellmate, Kevin Gordon, who testified at trial; in the presence of trial witness Randy McKeever; and in a videotaped statement to police, the admissibility of which is at issue here.

The videotaped statement followed interviews of Dowtin in Philadelphia and the District. Dowtin was arrested in Philadelphia on January 11, 2001, three weeks after Jackson was murdered. District of Columbia Metropolitan Police Department personnel traveled there, obtained a Miranda waiver from Dowtin, and conducted two interviews of him during which he denied involvement in Jackson's murder. Dowtin was brought back to the District and questioned without being provided a new Miranda waiver. In the course of that questioning, Dowtin admitted his involvement in the crime. He agreed to give the videotaped statement before providing a new Miranda waiver but actually gave the statement only after providing a new written waiver. In the videotaped statement,1 Dowtin described making his car available for use in the killing, which Howard wanted to carry out; placing Jackson in the trunk and driving to the location behind the school; digging a hole; carrying Jackson to the hole; and shooting Jackson.

About a week after the shooting, police found Jackson's incompletely buried body near the location where he had been shot. Jackson had two gunshot wounds to the head and apparent beating injuries.

At trial, photographs of Jackson's body were admitted into evidence without objection. Dowtin repudiated his videotaped statement. He testified that he had mentioned Smith and Epps only because police had led him to believe Smith and Epps had inculpated him. When asked whether he had any knowledge that Smith or Epps was involved in the murder, he answered, “No.” Bradford's testimony included the statement that police “wanted to get him”-apparently referring to Epps-because he beat a murder charge before.” The trial court denied Epps' motion for a mistrial on this basis and twice instructed the jury to disregard the statement.

Another witness, Antonio Jacobs, testified on redirect after related cross-examination by counsel for Epps that he had been reluctant to cooperate fully with police because of “stuff that went on after” Jackson's death. Speaking outside the presence of the jury, Jacobs said that this was a reference to threats against his family. Government counsel chose not to pursue this line of questioning further, and defense counsel was forbidden by the court from doing so unless the government did so first. Counsel for Epps subsequently requested re-cross-examination of Jacobs to explore bias and motive issues related to the asserted threats, but the trial court denied that request, stating that Epps had already fully cross-examined Jacobs and had in fact shown bias and motive.

At two points in the trial, the defendants drew the court's attention to members of the audience in the courtroom: First, Epps' counsel, without seeking relief, advised the judge that a prosecutor in the audience had made faces in response to defense testimony, whereupon the judge asked that the trial prosecutor be alerted if the same colleague reappeared in the audience; and later, Smith's counsel advised the judge that a relative of Jackson was in the audience wearing a shirt reading “Rest in Peace [Jerod] and possibly bearing a picture of a casket. The court directed the prosecutors to request that the shirt no longer be worn. The trial judge could not see what the person in question was wearing, and there is nothing in the record that indicates that the jury could see any such shirt.

In instructing the jury, the judge said that it could consider as an adoptive admission of Smith a conversation described by Randy McKeever, a friend of Epps' and Smith's, in which Dowtin and Epps described the events summarized supra and during which Smith was present but remained largely silent. During this conversation, Epps and Dowtin related inter alia, Smith's involvement in the car chase and crash and in abducting Jackson and delivering him to Dowtin, who placed him in the trunk of the car. McKeever testified that Smith neither appeared surprised by what Epps and Dowtin were saying nor denied that he was involved in the ways that Epps and Dowtin described.

The jury convicted Dowtin, Epps, and Smith of conspiracy see D.C.Code § 22-105a (1981); kidnapping while armed see § 22-2101 (1981); first-degree felony murder while armed see § 22-2401 (1981); first-degree premeditated murder while armed, see id.; three counts of possession of a firearm during a crime of violence, see § 22-3204 (1981); carrying a pistol without a license, see id.; possession of an unregistered firearm, see § 6-2311 (1981); and unlawful possession of ammunition, see § 6-2352 (1981).

After trial, Smith filed a motion under § 23-110 (2001) alleging that his trial counsel had been ineffective, a motion the trial court denied without a hearing on the basis that Smith's claims were “vague and conclusory.” These appeals followed.

After the initial briefing and oral argument on September 11, 2007, we remanded the record with instructions that the trial court take additional testimony and make additional findings and conclusions with respect to the admissibility of Dowtin's videotaped statement in light of Missouri v. Seibert, 542 U.S. 600, 618, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and Ford v. United States, 931 A.2d 1045 (D.C.2007), and determine whether, assuming Dowtin's statement was inadmissible, the admission of the statement was harmless beyond a reasonable doubt as to each appellant. The trial court followed these instructions, ruling that Dowtin's statement was both admissible and harmless as to all three defendants. The case was returned to us following the trial court's findings and conclusions dated October 7, 2008. We then directed two rounds of supplemental briefing by the parties, first on the issues considered on remand and then in light of the Supreme Court's April 2009 decision in Corley v. United States, --- U.S. ----, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009), which was decided after the first round of briefs had been submitted.

II.

All three appellants challenge the admissibility of Dowtin's videotaped statement to police on Fifth Amendment grounds.2 We need not reach the merits of this argument in order to reject it, because any error in admitting the statement as to Dowtin was harmless, and Epps and Smith lack standing to challenge the admissibility of the statement.

1.

With respect to Dowtin's convictions, assuming arguendo that his statement was inadmissible, any error in admitting the statement does not require us to reverse if the error was harmless beyond a reasonable doubt....

To continue reading

Request your trial
3 cases
  • Walker v. United States
    • United States
    • D.C. Court of Appeals
    • 21 February 2019
    ...of a witness. In the latter situation the Fifth Amendment protection against self-incrimination does not apply. Dowtin v. United States , 999 A.2d 903, 909-10 (D.C. 2010) (recognizing that a defendant "lacks standing to challenge an asserted violation of his co-defendant's Fifth Amendment r......
  • Sanchez v. United States
    • United States
    • D.C. Court of Appeals
    • 19 January 2023
    ...that recross-examination is generally not required when defense counsel had a full opportunity to ask the question at issue. E.g., Dowtin, 999 A.2d at 912. In sum, Green not support a conclusion that Mr. Sanchez's Confrontation Clause right was violated when the trial court did not permit r......
  • Sanchez v. United States
    • United States
    • D.C. Court of Appeals
    • 19 January 2023
    ...precise point elicited on redirect examination. Our cases give substantial weight to this consideration. See, e.g. , Dowtin v. United States , 999 A.2d 903, 912 (D.C. 2010) (concluding that trial court appropriately refused request for recross-examination, where "redirect raised no new matt......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT