Heath v. United States

• Citation: 26 A.3d 266
• Decision Date: 21 July 2011
• Docket Number: No. 08–CF–347.,08–CF–347.
• Parties: Elliot HEATH, Appellant,v.UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

26 A.3d 266

Elliot HEATH, Appellant,

v.UNITED STATES, Appellee.

No. 08–CF–347.

District of Columbia Court of Appeals.

Argued Oct. 20, 2010.Decided July 21, 2011.

James Whitehead, Public Defender Service, with whom James Klein, Samia Fam, Jaclyn Frankfurt, and Alice Wang, Public Defender Service, were on the brief, for appellant.Ann K.H. Simon, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Mary B. McCord, Glenn L. Kirschner, and Lynn E. Haaland, Assistant United States Attorneys, were on the brief, for appellee.Before GLICKMAN and BLACKBURNE–RIGSBY, Associate Judges, and STEADMAN, Senior Judge.GLICKMAN, Associate Judge:

Elliot Heath appeals his convictions for armed first-degree pre-meditated murder, armed assault with intent to kill, and associated weapons offenses. He primarily contends that the trial court unconstitutionally deprived him of a meaningful opportunity to present a complete defense when it erroneously excluded expert testimony he sought to present on the subject of eyewitness identification. The government concedes, and we agree, that the court erred in failing to conduct the inquiry our cases have held necessary to support its exclusionary ruling. Even so, considering appellant's proffer, we see no reasonable probability that the excluded expert testimony would have led the jury to have a reasonable doubt of appellant's guilt that did not otherwise exist. We therefore are persuaded that appellant's constitutional right to present a defense was not violated by the exclusion of his expert's testimony, and we conclude that the trial court's error was harmless.¹

I.

The charges against appellant arose from the murder of Patrick Carter on the morning of November 17, 2005, as he sat with his girlfriend, Felicia Edwards, in his parked car outside his mother's house in the 1800 block of Corcoran Street, N.E. In the moments before the shooting took place, Ms. Edwards was entering information into the calendar of her mobile phone. She happened to look up and noticed two men standing near the bus stop at the end of the street, roughly 250 to 350 feet away. When she looked up again, she saw them walking down Corcoran Street in her direction. There appeared to be nothing amiss. Ms. Edwards did not recognize either individual. She later described one of them to police as a tall, dark-complected black man with hair in dreadlocks, and the other as shorter, lighter-skinned, and bald.

Unexpectedly, the two men stopped next to the car in which Mr. Carter and Ms. Edwards were sitting. Then, without warning, the men began shooting into the vehicle. Mr. Carter was hit seven times and mortally wounded. As Ms. Edwards reached across to shield Carter and try to start the car, she too was shot, though not fatally. After the shooting, the assailants fled. Their motive for the attack is unknown.

Appellant was implicated in the shooting eight months later, when two apparently unrelated events led to his identification and arrest. The first event occurred on July 20, 2006, when a woman named Courtnee Ervin, arrested for violating bail on pending drug and prostitution charges, told detectives she had witnessed the shooting. Ms. Ervin explained that she was present in the 1800 block of Corcoran Street, getting high on crack cocaine, when the shooting erupted. She looked up and, before fleeing, got a good look at the two shooters. Ms. Ervin was positive that one of them was “L,” a person she had known for some years from her frequent visits to Corcoran Street. When the detectives then showed Ms. Ervin a photograph of appellant, she confirmed that he was the “L” she knew.²

The second event leading to appellant's arrest occurred about a week after Ms. Ervin spoke to the police, when a tall, dark-skinned man with dreadlocks walked into the shoe store where Ms. Edwards worked as a salesperson. The man was a stranger to Ms. Edwards, but upon seeing him, she became very nervous and felt physically ill. She was so distressed that she ran into a back room and called both her parents and a police detective working on the investigation of the Corcoran Street shooting to report her sighting of the man. Two days later, on July 29, 2006, the detective showed Ms. Edwards an array of nine photographs of African–American men of approximately the same age and complexion, all with their hair in dreadlocks.³ Included in the array was the photo of appellant that Ms. Ervin had said depicted the shooter she knew as “L.” Ms. Edwards selected that same photo, saying it portrayed the man who had entered her store. At that time, she did not identify appellant as one of the men who had attacked her and Mr. Carter. However, when Ms. Edwards appeared before the grand jury a few months later, in November 2006, she had become certain that appellant was one of the assailants. In her subsequent testimony at trial, Ms. Edwards referred to him as “L,” the detectives having told her his nickname.

The government's case against appellant rested heavily on the mutually reinforcing identification testimony of Ms. Edwards and Ms. Ervin, neither of whom knew or had spoken with the other. A third witness corroborated their testimony.⁴ Danielle Carter, the decedent's sister, testified at trial that she was inside her mother's house on Corcoran Street when she heard what sounded to her like firecrackers. She looked out the second-story window and saw a man running away from her brother's car. Not having seen the fleeing man's face, Ms. Carter said she could not identify him definitively. Nonetheless, she thought he was appellant, a person whom she had seen before on Corcoran Street “almost every day,” because he had the same height, build, gait, and “shoulder-length dreads” as appellant had, and because he was wearing the same kind of dark winter coat she had seen appellant wear.⁵

In his defense, appellant denied any involvement in the shooting and claimed he had been misidentified—either mistakenly, in the cases of Ms. Edwards and Ms. Carter, or intentionally, in the case of Ms. Ervin. Appellant cross-examined Ms. Edwards extensively, focusing on her inability to see either assailant's face during the attack because her view was blocked by the roof of the car, and on her three-month delay in identifying him as one of the shooters after having observed him in her store. Ms. Edwards admitted telling the police that she “really didn't get to see” the shooter with the dreadlocks and explaining to the grand jury that she saw only “bits and pieces” of that individual. She acknowledged, moreover, that her nervous reaction when she encountered appellant in her store was not unusual, as she became upset and anxious in the months following the shooting when she saw other dark-complected men with dreadlocks. (She said her reaction to appellant was more intense, however.) Appellant probed whether Ms. Edwards's belated and sudden identification of him a year after the shooting was influenced by the recurrent nightmares she reported having experienced in the interim, in which, she said, she had relived the traumatic event and reconstructed its details.

In cross-examining Ms. Ervin, appellant impeached her with her prior convictions and with her inconsistent statements to the police and the grand jury regarding her location during the shooting and other details. Appellant also explored the effect of Ms. Ervin's heavy cocaine use on her ability to perceive and remember the event, and her motive to curry favor with the government in order to obtain a lenient sentence in her pending criminal case. (Ms. Ervin testified pursuant to a cooperation agreement with the government.) As to Ms. Carter, appellant focused primarily on her lack of certainty and her failure to link him to the shooting, even tentatively, prior to trial. Ms. Carter admitted telling the grand jury that she did not recognize the person she saw running from the scene of the shooting and could not tell whether that person was appellant.

Although appellant did not take the stand, he called several witnesses in his defense. Sontia Lemon, appellant's wife, testified that they were at home on the morning of the shooting—they lived about eight or nine houses away on Kendall Street, which is behind, and parallel to, Corcoran Street—and that appellant ran outside to investigate when they heard the gunfire. She followed him to the scene of the shooting and saw him use his cell phone to summon the police. A second defense witness, Desmond Belt, claimed he too heard appellant telephone from the scene for help.⁶ Officer Bryant Collins, one of the officers who responded to the crime scene, confirmed that he took down appellant's name there.⁷ Another defense witness testified to having seen someone other than appellant running from the 1800 block of Corcoran Street after the shooting. The fleeing man appeared to have “something concealed on his right-hand side of his back.” Finally, an analyst from a private testing facility testified that appellant was not the source of DNA found on cartridge casings and a piece of chewing gum recovered by the police from the vicinity of the shooting.⁸

To bolster his defense of misidentification, appellant had hoped to present the expert opinion testimony of Dr. Lori Van Wallendael, an associate professor of cognitive psychology at the University of North Carolina. Appellant's proffer described Dr. Van Wallendael's qualifications and stated she would testify “about the factors present in this case that are known to adversely affect eyewitness perception, memory, and identification ... includ[ing] stress, weapon focus, and deficient and unreliable identification procedures.” The proffer stated that “[t]here is a broad consensus among the researchers in this area that (1) violence causing stress and emotional arousal at the time of an encounter negatively affects the accuracy of an eyewitness identification;...