Greene v. United States, s. 19-CO-713 & 20-CO-349

• Court: D.C. Court of Appeals
• Writing for the Court: Deahl, Associate Judge
• Citation: Greene v. United States, 279 A.3d 363 (D.C. 2022)
• Docket Number: s. 19-CO-713 & 20-CO-349
• Decision Date: 04 August 2022
• Parties: Marquell GREENE, Appellant, v. UNITED STATES of America, Appellee.

279 A.3d 363

Marquell GREENE, Appellant,

v.UNITED STATES of America, Appellee.

Nos. 19-CO-713 & 20-CO-349

District of Columbia Court of Appeals.

Submitted November 19, 2021

Decided August 4, 2022

Thomas D. Engle and Sharon L. Burka for appellant.

Elizabeth Gabriel, Assistant United States Attorney, Michael R. Sherwin, Acting United States Attorney at the time, and Elizabeth Trosman, Chrisellen R. Kolb, Brittany Keil, John P. Gidez, Assistant United States Attorneys, for appellee.

Before Easterly, McLeese, and Deahl, Associate Judges.

Deahl, Associate Judge:

A jury convicted Marquell Greene of assault with intent to rob while armed and a host of subsidiary charges. The trial court sentenced him to thirteen years’ incarceration. Shortly after the jury rendered its verdict, Greene filed a motion for a new trial under D.C. Super. Ct. Crim. R. 33, which highlighted that two other men had confessed to the crimes. Greene later filed a motion to vacate and set aside his convictions under D.C. Code § 23-110. That motion argued, in part, that Greene's trial counsel was ineffective in failing to investigate a lead—and present evidence—that those same two men were the real perpetrators. The trial court denied both motions, and Greene now appeals. We vacate both orders and remand for further proceedings.

I.

A grand jury indicted Marquell Greene for assault with intent to rob while armed, among other offenses. The government alleged that Greene posted an online notice advertising a Lexus for sale, and then lured Donald Pinkney to a meeting place under the pretense of selling him that car. At trial, Pinkney testified that he arrived at the meeting place with his eight-year-old daughter in tow, and the two of them exited their car to inspect the Lexus. Greene then held the two of them at gunpoint and tried to rob Pinkney. Greene threw Pinkney to the ground, but eventually Pinkney escaped with his daughter into a nearby building. Pinkney was left with "some scrapes," and his daughter was uninjured.

Greene maintained that he was not the perpetrator and that Pinkney, who picked Greene as his assailant from a photo array, had misidentified him. But considerable evidence supported Pinkney's identification of Greene as his assailant. For instance, the "bait car" that was listed for sale and brought to the scene was registered to Greene; the username of the person selling the car online was marquell_greene@yahoo.com; and a GPS tracking device worn by Greene indicated that he was in the immediate area when the assault occurred.

In the lead-up to trial, Greene's girlfriend and a man named Deangelo Johnson approached Greene's trial counsel, Rebecca Bloch. Johnson told Bloch that it was he, rather than Greene, who committed the offenses. Bloch, who had viewed surveillance video capturing a portion of the assault, told Johnson that he was obviously not the perpetrator—Johnson was short with long hair, while the assailant caught on camera was tall with short hair. At that point, Johnson turned to Greene's girlfriend and said, "You didn't tell me they had it on video." Bloch then told Greene about the exchange, and Greene indicated he did not want to involve Johnson (a friend of his) or make him a co-defendant. Bloch did not pursue the lead any further. A jury convicted Greene of all charges.

Three days after the jury rendered its verdict, Greene submitted a pro se motion for a new trial in the "interest of justice" asserting that the real perpetrator had come forward and admitted his guilt, and that Bloch failed to investigate and present evidence of that alternative perpetrator. See D.C. Super. Ct. Crim. R. 33. Given the seeming conflict of interest, Bloch withdrew as Greene's counsel, and the court appointed post-trial defense counsel, John Carney, to assist with the new trial motion.

Carney then learned that Johnson—together with another man named Aubrey Wallace—had met with a defense attorney named Bryan Brown (otherwise unaffiliated with Greene's case) after the conclusion of Greene's trial, and that the two men said they had committed the offense together. Unlike Johnson, Wallace resembled the assailant captured on the surveillance video, and similarly resembled Greene. The two men said that Johnson created the bogus car listing and coordinated the fake sale. Johnson explained that he used Greene's email address, which he knew the password to, and Greene's Lexus, which he had a key to, having previously borrowed it. According to the two men, Wallace was the one with the gun who carried out the assault, sticking Pinkney up and tackling him, and is the one seen in the surveillance footage. While Johnson had come forward before trial, he made no mention of an accomplice at that point, and Wallace did not come forward until after the jury had rendered its verdict.

Carney filed a supplement to Greene's new trial motion on Greene's behalf, detailing the new information about Johnson and Wallace and requesting an evidentiary hearing. The trial court held the requested evidentiary hearing but denied the motion. The court indicated it was applying the more lenient "interest of justice" standard reserved for new trial motions filed within seven days of the jury's verdict, as Greene's initial pro se filing had been. See D.C. Super. Ct. Crim. R. 33(b)(2).¹ That standard, as applied to testimony from a new witness that came to light only after trial, asks whether "a fair trial requires that the [new witness’] testimony be made available to the jury." Benton v. United States , 188 F.2d 625, 627 (D.C. Cir. 1951) ; see also M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971) (D.C. Circuit opinions "rendered prior to February 1, 1971" are binding on this court). The court answered in the negative, reasoning that "[e]ven assuming arguendo that the Court credits the statements of the two witnesses" confessing to the crimes, Greene's motion must nonetheless fail because that evidence "could have been discovered with due diligence before trial."

In a prior appeal, we vacated that order and remanded back to the trial court. We observed that, despite its assertion to the contrary, the "court seemed to apply the more rigid five-factor test which governs motions for a new trial based on newly discovered evidence" outside of the narrow timeframe provided by Rule 33(b)(2). Greene v. United States , 17-CF-810, Mem. Op. & J at 1-2 (D.C. Feb. 15, 2019). It should have instead applied the more lenient interest of justice standard applicable to R. 33(b)(2) motions, given when Greene filed his motion.² Id . We highlighted that under the more lenient standard, a lack of diligence on the movant's part is not a fatal defect precluding relief, though it "remains a consideration." Id. at 2; see also Green v. United States , 164 A.3d 86, 95 (D.C. 2017) ("[A]ppellant is not required to demonstrate his own diligence under the interests of justice standard, [though] diligence is a valid factor for the trial court, and this court, to consider.").

On remand, the court denied Greene's new trial motion anew. The court again "assum[ed] the credibility of the statements of the two witnesses—Deangelo Johnson and Aubrey Wallace." But it reasoned that Greene's "motion must fail because there are no ‘exceptional circumstances’ which prevented him from receiving a fair trial." The court once more stressed Greene's lack of diligence in pursuing and presenting Johnson and Wallace's confessions, noting that "Wallace's testimony could have been discovered through due diligence" if defense counsel had only followed up on Johnson's lead. While the court was careful to note that the lack of diligence was "not a determinative factor," it weighed it heavily "among other factors" animating its decision. In closing, and contrary to its previously stated operating assumption that Johnson and Wallace were credible, the court articulated reasons to doubt Johnson and Wallace: Johnson "changed his version of the events," telling Greene's trial counsel that he was the perpetrator, but only after trial did he add that he had an accomplice in Wallace. As for Wallace, the court noted "he provided limited details," did not provide a sworn statement or allow himself to be recorded, and was biased because he was "either a friend or acquaintance" of Greene.³

In the meantime, Greene also filed a pro se motion under D.C. Code § 23-110 to vacate his convictions due to ineffective assistance of counsel, and Carney followed-up with a supplemental filing in support of the motion. The counseled supplement focused largely on trial counsel's failure to call a different witness, Lawrence Washington, who attested that he witnessed the assault and that Greene was not the person who committed it. It also claimed that trial counsel was ineffective for failing to investigate Johnson's confession to her that he had committed the crime, noting that if counsel had exercised "reasonable diligence" and followed up on that lead, she would have learned that Wallace aided Johnson and matched the person on the surveillance video. In denying Greene's § 23-110 motion, the trial court rejected Greene's argument that his counsel was ineffective for failing to call Washington as a witness. However, the court did not address the argument that Greene's trial counsel was ineffective in failing to investigate and present evidence about Johnson and Wallace as the true perpetrators.

Greene now brings this appeal, challenging both the trial court's order denying his Rule 33 motion for a new trial and its order denying his § 23-110 motion to vacate his convictions.

II.

A.

We begin with the court's denial of Greene's Rule 33 motion for a new trial. "A trial court's denial of a motion for new trial is reviewed for abuse of discretion," and "[w]e will not reverse if the denial is reasonable and supported by the record." Tyer v. United States , 912 A.2d 1150, 1166-67 (D.C. 2006). A defendant is entitled to a new trial in "the interest of justice" under Rule 33...