FREELAND v. U.S.

• Decision Date: 10 September 1993
• Docket Number: No. 88-CF-202,88-CF-202
• Parties: Larry FREELAND, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

631 A.2d 1186

Larry FREELAND, Appellant, v. UNITED STATES, Appellee.

No. 88-CF-202.

District of Columbia Court of Appeals.

Argued September 12, 1991.

Decided September 10, 1993.

APPEAL FROM THE SUPERIOR COURT, ROBERT A. SHUKER, J.

Elizabeth G. Taylor, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Bernadette C. Sargeant, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher and Thomas C. Black, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, STEADMAN, Associate Judge, and REILLY, Senior Judge.

ROGERS, Chief Judge:

Appellant Larry Freeland makes three separate, but related claims of trial court error in appealing from his convictions of second-degree murder. D.C.Code §§ 22-2403, -3202 (Repl. 1989). He contends that the trial judge erred in excluding evidence that (1) someone else was responsible for the murder of appellant's wife, (2) threats had been made against appellant's family, and (3) appellant had reported his fears to a prosecutor before the murder. The trial judge applied the Brown/Beale¹ test in concluding that appellant had not established the requisite nexus to allow admission of evidence that someone else had murdered his wife. But, the judge also ruled that threats made by William Hawthorne and his agents against appellant were relevant to appellant's state of mind in leaving and remaining away from the jurisdiction. Indeed, the trial judge also permitted appellant to testify that he thought Hawthorne's agents had killed his wife, in explaining why he had remained away from the jurisdiction. The judge drew the line, however, on defense efforts to bring to the jury's attention alleged threats against appellant's family and, in order to rebut the government's claim of recent fabrication, the fact that appellant had communicated his fears to the government prior to his wife's murder as shown in a pleading filed by Assistant United States Attorney Leiser in the Eastern District of Virginia in Hawthorne's murder case.

We hold that the trial judge too narrowly interpreted the Brown/Beale test and, hence, that the evidentiary line drawn by the trial judge line was based on legal error. We also hold that the judge erred in excluding the Leiser pleading as an admission of a party opponent. We conclude, in light of the prejudice to appellant's ability to present his defense and the emphasis placed by the government on appellant's failure to produce any corroboration of his pre-murder fears, that the errors were not harmless, and accordingly, we reverse.

I.

The body of appellant's wife, Louise, was discovered by her sister around 10 a.m. on May 13, 1984, after she went to the couple's apartment when Louise had failed to respond to successive telephone calls. Thesister, and two other relatives, found the front door of the couple's apartment was unlocked and saw their infant son asleep in his crib; the door to an adjacent bedroom was closed. Inside the bedroom they found Louise's body, lying under a bloody sheet, apparently bludgeoned to death by blows that had crushed her face and skull. The wall beside the bed was covered with blood.

Earlier that morning, neighbors had heard a loud and prolonged argument between appellant and his wife. The building manager had knocked on the couple's door in response to complaints, and she had told appellant, when he opened the door, to keep down the noise; the manager saw Louise inside of the apartment at the time, around 2 a.m. One neighbor also saw appellant leave and return to the couple's apartment, when the argument recommenced. Later, another neighbor saw him leave and return on two occasions around 7 a.m. that morning. Around 8 or 8:30 a.m. the apartment maintenance man saw appellant sitting outside of his apartment building; appellant said he was waiting for a ride to Waldorf, Maryland. Twenty minutes later appellant was gone.

On November 28, 1986, two and one-half years after his wife's murder, appellant was arrested in Atlantic City, New Jersey, for an unrelated offense, and the police discovered that he was wanted as a fugitive.

At trial for second-degree murder, the defense presented docket sheets for the Eastern District of Virginia through testimony of a defense investigator. The investigator read the entries that William Hawthorne was charged with assault with a dangerous weapon and first-degree murder. The investigator also referred to a government motion, filed May 25, 1984, to admit appellant's grand jury testimony at Hawthorne's murder trial, and a show cause order against appellant for failing to appear as a witness in that case.

Appellant testified that he had witnessed Hawthorne, a fellow inmate at the Lorton Reformatory in Lorton, Virginia, stab another inmate to death in a prison dormitory. He also referred to his statements to the FBI, that were admitted into evidence, and testified that Hawthorne had a reputation in Lorton as a "very dangerous guy." Appellant denied killing his wife and testified that he thought "the Hawthorne people had killed" her. After speaking to the FBI, appellant testified, he was approached by another inmate who asked if he was the Larry Freeman who had been speaking to the FBI about Hawthorne's murder case; appellant pretended not to be that person. After he was released from Lorton, appellant testified that he continued to receive threats, being approached by two men on the street. Each time appellant claimed that he had escaped by pretending that they had him mixed up with someone else. Appellant also testified that he and his wife were frightened by the threats and that he had told the Virginia prosecutor about his fears. Then, around midnight on May 13, 1984, when appellant was walking home from the grocery store, two men ran up from behind him, and when his usual dodge did not work, they grabbed him. Appellant pulled away and ran. When he arrived home, he tried to persuade his wife to leave town with him, admitting that they had argued about whether she would leave with him. Appellant explained that he had left his family because his wife would not come with him and that he thought that his wife and son would be safe after he left.

II.

We first address appellant's contention that the exclusion of evidence that someone other than appellant had killed his wife, on the grounds that the defense had failed to meet the "clearly link" test, was error. As appellant points out, "the [trial] court implicitly recognized [that] the [evidence regarding] Hawthorne . . . was inextricably intertwined with the question of appellant's guilt."

We conclude that in applying the Brown/Beale test, the trial judge set too high a standard. The test only requires a defendant to proffer evidence that clearly links another person's conduct to the murder. See Beale, supra note 1, 465 A.2d at803; Brown, supra note 1, 409 A.2d at 1097 ("evidence must clearly link that other person to the commission of the crime"). In Johnson v. United States, 552 A.2d 513, 516, 518 (D.C. 1989), decided after appellant's trial, the court explained that "[t]here is no requirement that the proffered evidence must prove or even raise a strong probability that someone other than the defendant committed the offense. Rather, the evidence need only tend to create a reasonable doubt that the defendant committed the offense." Id. at 517 (emphasis in original). The Johnson decision expounded on the meaning of the "clearly link" requirement of Brown/Beale, which a defendant must meet before evidence that a third person committed the crime for which he is charged will be introduced:

What we mean by "clearly link," as used first by this court in Brown . . . is proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense. . . . The proffered evidence may, of course, be either circumstantial or direct, and may include, for example, a third party's actions, motives, opportunity, statements and declarations against penal interest.

Id. at 516. Furthermore, a defendant may meet his burden under Brown/Beale by proffering evidence that in the aggregate establishes the necessary nexus between the proffered evidence and the crime. Id. Thus, no single factor is dispositive.

The defense proffered a combination of facts and circumstances in the instant case that were sufficient, under the Brown/Beale test, to warrant admission of the evidence tending to suggest that Hawthorne's agents had murdered appellant's wife. The proffer consisted of evidence that (1) appellant was a government witness in the prosecution of Hawthorne and others; appellant was an eyewitness to Hawthorne's killing of another inmate at Lorton, and he had testified before the grand jury for the government and was scheduled to testify at Hawthorne's trial; (2) persons claiming to be Hawthorne's agents had repeatedly made threats to appellant and his family in order to intimidate appellant and to retaliate for his grand jury testimony in a context that could reasonably be interpreted as related to Hawthorne's concern about appellant's testimony against him in his murder trial; (3) appellant had made statements, before his wife's murder, to law enforcement officials expressing his fears that Hawthorne and his agents would retaliate against appellant and his family; and (4) Hawthorne had a reputation and had committed prior acts of intimidation and retaliation against potential witnesses. Based on this proffer the defense argued that appellant had shown that his testimony for the government in Hawthorne's murder case was the reason that appellant and his family were being threatened and that there was a reasonable possibility that someone else had killed appellant's wife in order to silence appellant.

Given this proffer, the fact that the defense did not also proffer...