Gibson v. U.S., 83-1509.

Citation566 A.2d 473
Decision Date25 October 1989
Docket NumberNo. 83-1509.,No. 87-348.,83-1509.,87-348.
PartiesSteven GIBSON, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

Calvin Steinmetz, Washington, D.C., with whom Thomas K. Clancy and Kenneth J. Rose were on briefs for appellant.

N. Paul Patterson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. and Joseph E. DiGenova, U.S. Atty. at the time the brief was filed, Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and Mary Lou Leary, Donald Allison, Springfield, Mass., and Vincent W. Caputy, Washington, D.C., Asst. U.S. Attys., were on the briefs, for appellee.

Before NEWMAN, FERREN and STEADMAN, Associate Judges.

NEWMAN, Associate Judge:

A jury convicted Gibson of assault with intent to commit rape while armed; assault with intent to commit sodomy while armed; and kidnaping while armed. Judge Ryan sentenced Gibson to concurrent terms of five to fifteen years for the rape and kidnaping convictions, and twenty to sixty months for the sodomy conviction.

Gibson appealed his conviction (No. 83-1509), but subsequently filed discovery and new trial motions based on information that another person had committed the crimes for which he had been convicted; this court granted a stay of appeal (No. 83-1509) pending disposition of his motions in the trial court. In No. 87-348, Gibson appeals the denial of these motions. We have consolidated the two appeals for review purposes. We find no merit in the contentions raised on direct appeal (No. 83-1509).1 However, we vacate the denial of the new trial motion and the denial of the discovery motion; we remand for further proceedings thereon.

I.

At about 6 a.m. on the morning of March 9, 1982, sixteen-year-old Smith (not her real name) was on her way to school when a person she later identified as Gibson, approached her on the street and attempted to grab her bag. After struggling with Smith, her assailant pulled out a gun and forced her to accompany him to a wooded area nearby. On the way, her assailant attempted to shield his face with his left arm and Smith's bag and threatened to "blow [her] brains out" if she did not stop crying.

Once in the woods, her assailant made Smith remove her coat and pants, and then ordered her to lie down. He proceeded to touch her vagina and asked her whether she had ever had sex. After Smith responded no, he unzipped his pants, put his penis to her lips, and tried to insert his penis into her mouth. When Smith refused, her assailant stood, zipped up his pants, apologized for not knowing she was so young, and then left. Smith testified that the total time they were in the woods was one or two minutes, and that she was crying during most, if not all, of the entire assault.

After her assailant left, Smith put her clothes on and returned home, where her mother called the police. Later that day, the police brought a suspect and a set of photos to Smith's home, but she did not identify any of the men as her attacker. The next day, on March 10th, Smith viewed a large number of slides, none of which was a photo of Gibson, but she did not find a photo of her attacker. On September 27th, Smith looked at ten slides, one of them being a slide of Gibson. With respect to Gibson's photo, Smith stated that the eyes, complexion and mustache were the same as her attacker, but that he did not have a hat on. She ultimately concluded that she did not know if Gibson was her attacker; she did not think so. However, at a lineup fourteen days later, Smith identified Gibson as her attacker. Detective Green, who was involved in the investigation, was present during Smith's September 27th photo identification and the subsequent lineup identification of Gibson.

At trial, Gibson's defense was misidentification. He testified that although he could not specifically remember the events of March 9, 1982, he usually did not leave the house until after 10:00 a.m. Davis, with whom Gibson lived at the time of the offense, corroborated his testimony as to their daily routine, but could not remember the events of March 9th. The jury found Gibson guilty of assault with attempt to commit rape, assault with attempt to commit sodomy, and kirnapping, all while armed.

Following Gibson's conviction, Detective Green, a thirteen-year veteran police officer, approached defense counsel and told him that based upon his investigation of another person, Holt, in connection with a number of other sexual assaults, he was convinced that Gibson was not in fact Smith's assailant. Thereafter, defense counsel filed a new trial motion pursuant to Super.Ct.Crim.R. 33, on grounds of newly discovered evidence and a discovery motion to compel the government to disclose any information it had linking Holt to Smith's assault, and to provide a photo of Holt and a photo:, of the lineup at which Smith identified Gibson.

On October 31, 1985, at the first hearing on the discovery motion, defense counsel proffered that the prosecution had ordered the police officers engaged in the Holt investigation not to speak with him and furthermore, had told Detective Green not to sign an affidavit. The government conceded that an Assistant United States Attorney had been "concerned about ruining the investigation against Holt" and that he did not want Green to sign an affidavit, but maintained that no one had been ordered not to talk with defense counsel.

Nevertheless, the government argued that it had adequately responded to Gibson's concerns by reopening his case and thoroughly investigating any link between the Holt assaults and Smith's case. The government stated that as a result of its internal investigation, it remained convinced that there was no evidence linking Holt to Smith's assault. The government also proffered that upon questioning Smith again, she had reaffirmed her identification of Gibson; that Gibson had failed a lie detector test concerning the case; and that Detective Green had told the prosecutor that he did not have any evidence linking Holt to Smith's assault. Characterizing Gibson's discovery motion as a "fishing expedition" based on no more than a "hunch of some police officers," Judge Ryan denied the motion because it lacked a factual basis, there being no supporting affidavit or testimony. Judge Ryan did not rule on the new trial motion.

Thereafter, defense counsel filed an amended motion for discovery and an amended new trial motion. The new discovery motion requested the court to order the government "to produce all exculpatory information in its possession," including, but not limited to, a photograph of the lineup at which Smith identified Gibson as her assailant2; "identification and summary of knowledge of persons who know the modus operandi of Holt"; and information concerning which persons saw Holt in the area where Smith was assaulted, as well as what they saw and when they saw him.

On January 6, 1987, a hearing on the amended new trial and discovery motions was held before Judge Hannon. In support of the new discovery motion, Gibson submitted an affidavit from Detective Green and a copy of the government's opposition to a defense motion to sever offenses in its then pending case against Holt. Gibson argued that the discovery motion to compel the government to produce all exculpatory information in its possession should be granted based on 1) the affidavit, in which Detective Green swore, inter alia, that Holt was Smith's assailant, and 2) the opposition memo, which revealed similarities between Holt's modus operandi and Smith's assault.

The government reiterated the details of its reinvestigation into Gibson's claim and stated that on the basis of its own examination of the evidence, the crimes in which Holt was involved were dissimilar to Smith's assault. Judge Hannon denied the discovery motion on the basis that Gibson had failed to secure any new evidence since the earlier proceeding before Judge Ryan. Judge Hannon also denied the new trial motion.

II.

On appeal, Gibson concedes that on the evidence obtained thus far, he cannot make the necessary showing as to all five of the criteria for obtaining a new trial based on newly discovered evidence. See Smith v. United States, 466 A.2d 429, 432-33 (D.C. 1983); Godfrey v. United States, 454 A.2d 293, 299 n. 18 (D.C. 1982); Tillery v. United States, 419 A.2d 970, 972 (D.C. 1980); Wright v. United States, 387 A.2d 582, 587 (D.C. 1978). He claims that he can show 1) that the new evidence was discovered post trial; 2) that the evidence was made available to him by Detective Green, who had a working knowledge of both the Gibson and Holt cases, and that he was otherwise diligent in attempting to procure any new evidence; 3) that the evidence is not merely cumulative or impeaching; and 4) that the evidence is material to the issues involved. Without additional discovery, however. Gibson admits that he cannot meet the fifth and final requirement for a new trial; proof that the new evidence is "of such nature that in a new trial it would probably produce an acquittal." Wright, supra, 387 A.2d at 587 (quoting Thompson v. United States, 88 U.S.App.D.C. 235, 236, 188 F.2d 652, 653 (1951)); see, e.g., Smith, supra, 466 A.2d at 433.

Thus, Gibson does not assign error to the new trial ruling per se; rather, he claims that Judge Hannon erred in curtailing further investigation into the facts alleged in the motion and supporting documents by denying the discovery motion. In Gibson's view, the allegations set forth in these papers form the necessary predicate for granting the discovery request. In support of this assertion, Gibson proffers the affidavit, wherein Detective Green swore, inter alia, that "Holt has the same build, facial features, complexion, mustache, and the same piercing eyes as Mr. Gibson"; that a jacket matching the description of the jacket worn by Smith's assailant was found during the search of Holt's...

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