Johnson v. United States

Decision Date04 January 1989
Docket NumberNo. 86-47.,86-47.
Citation552 A.2d 513
PartiesWoredell JOHNSON, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

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

Michael D. Brittin, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell, Elizabeth Trosman, Washington, D.C., and William R. Martin, Asst. U.S. Atty., Dayton, Ohio, were on the brief for appellee.

Before ROGERS,1 Chief Judge, and NEWMAN and TERRY, Associate Judges.

NEWMAN, Associate Judge:

Johnson was convicted by a jury of armed robbery, felony murder while armed, and obstruction of justice. On appeal, he contends that the trial court erred in excluding cross-examination of and extrinsic evidence about a key government witness which, according to him, would have tended to establish that the witness committed the armed robbery and murder as well as showing the witness' bias and motive to testify falsely. We affirm.2

I.

The government's evidence showed that Johnson, Harrison, Brown, Sothern, Herring and a man known as Youngen spent the evening of January 3, 1985, drinking wine on the front porch of an abandoned house located on Fourth Street, N.W. This house is located near the Second and D Street homeless shelter, where Johnson, Harrison, Sothern and Herring occasionally stayed. The six men eventually went into one of the rooms of the abandoned house. Sothern, Brown and Herring all recounted that once inside the house they continued drinking together. Sothern and Herring also testified that Johnson, Harrison and Youngen were standing together, approximately five to twenty-five feet away from them. Sothern testified that Johnson and Harrison continued an argument (which had begun on the front porch) about whether Harrison owed Johnson ten dollars. He further testified that Youngen yoked Harrison while Johnson went through his pockets. Harrison started to struggle, kicking Johnson in the face. According to Sothern, Johnson then stabbed Harrison twice in the chest with a knife, and Youngen stole his watch. Herring, a good friend of Sothern's, recalled seeing Johnson's hand move twice, but did not notice what, if anything, he had in his hand. Brown, who was a good friend of the decedent, testified that he heard the decedent scream and saw him slump over. Sothern, Herring and Brown immediately ran out of the house. Neither Brown nor Herring contacted the police; Sothern claimed he attempted to contact the police.3

Officer Dyson of the Metropolitan Police Department discovered Harrison's body in the Fourth Street house on January 5th. On January 10th, while at Superior Court on an unrelated matter, Officer Dyson saw Sothern (whom he recognized) and asked him if he knew anything about the homicide. Initially hesitant, Sothern gave a statement to the Homicide Branch and identified Johnson from a photo array later that evening.

An autopsy revealed that Harrison died from strangulation, multiple cutting and stabbing wounds, and a loss of blood. The probable murder weapons included knives and broken bottle parts. Analysis of the fingerprints taken from the bottle parts recovered at the scene established that they were not those of Johnson, Sothern, Herring or Brown.

Johnson's probation officer testified that Johnson came to her office without a scheduled appointment on January 8th. He told her that he had heard that a murder had been committed, that the police were showing his photograph around the neighborhood, and that there was a warrant for his arrest. After making some inquiries, she informed Johnson on January 10th that there was no outstanding warrant. The investigating officer testified that Johnson was not a suspect until after the police had spoken to Sothern on January 10th.

In his defense, Johnson testified that at approximately 5:00 p.m., after returning from a job as a laborer (somewhere in Virginia), he had a brief conversation with Sothern, Brown, Herring and the decedent in front of a pawn shop located near an alley leading to the Fourth Street house. After this conversation, he arrived at the shelter at approximately 6:00 p.m., where he stayed the entire evening. On January 5th, after hearing about Harrison's death and recalling seeing Sothern with him, Johnson asked Sothern whether he knew anything about the murder. The following day he heard he was a suspect. He admitted speaking to his probation officer. He also admitted asking Sothern why he was getting him involved; he denied threatening Sothern, knowing Youngen, carrying a knife and killing Harrison.

II.
A.

The Due Process Clause and the Sixth Amendment afford a criminal defendant the right to confront and cross-examine witnesses against him. See Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-11, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1974); Stack v. United States, 519 A.2d 147, 151 (D.C. 1986). The due process clause also affords a criminal defendant the right to call witnesses on his own behalf. Chambers, supra, 410 U.S. at 294, 93 S.Ct. at 1045. For these reasons, evidence that someone other than the defendant committed the charged crimes may be presented through the testimony of defense witnesses, Brown v. United States, 409 A.2d 1093, 1097 (D.C. 1979), and by cross-examination, Stack, supra, 519 A.2d at 152.

With respect to the admissibility of exculpatory extrinsic evidence, we have said.

Evidence that someone other than the accused has committed the crime for which the accused is charged may be presented through the testimony of defense witnesses when there are sufficient indicia that the evidence is reliable, Chambers v. Mississippi, supra, 410 U.S. at 298-303, 93 S.Ct. 1038 [sic] . . . "When guilt of another person is inconsistent with the guilt of the defendant. it is always relevant for the defendant to present evidence that such other person committed the crime." 1 Wharton's Criminal Evidence § 195 at 404 (13th ed. 1972). However, before evidence of the guilt of another can be deemed relevant and thereby admissible, the evidence must clearly link that other person to the commission of the crime. See e.g., State v. Perelli, 125 Conn. 321, 5 A.2d 705 (1939); White v. State, 52 Nev. 235, 285 P. 503 (1930). Even when such evidence is relevant, the trial court must weigh its probative value against its prejudicial impact, including its propensity to mislead the jury or confuse them, to determine whether to admit the evidence. Punch v. United States, D.C.App. 377 A.2d 1353, 1358 (1977).

Brown, supra, 409 A.2d at 1097 (emphasis added); see Shepard v. United States, 538 A.2d 1115, 1117 (D.C. 1988); Beale v. United States, 465 A.2d 796, 803 (D.C. 1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984).

What we mean by "clearly link," as used first by this court in Brown, supra, 409 A.2d at 1097, is proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense. This proof permits the admission of evidence which otherwise is generally excluded because it is too remote in time and place, completely unrelated or irrelevant to the offense charged, or too speculative with respect to the third party's guilt. E.g., Stack, supra, 519 A.2d at 147; Beale, supra, 465 A.2d 796; Brown, supra, 409 A.2d 1093; United States v. Thornburg, 844 F.2d 573, 599 (8th Cir. 1988); United States v. DeNoyer, 811 F.2d 436, 440 (8th Cir. 1987); see 29 AM.JUR.2D Evidence § 441 (1967) (defendant should not be able "to indulge in conjectural inferences that some other person might have committed the 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. State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977); 1A WIGMORE ON EVIDENCE §§ 139-141 (Tillers Rev. 1983); WHARTON, CRIMINAL EVIDENCE § 134 (14th ed. 1979); 29 Am.Jux. 2D Evidence § 441 (1967). Such evidence may consist of one fact or circumstance, or a set of facts or circumstances, which, in the aggregate, establishes the necessary link, connection or nexus between the proffered evidence and the crime at issue. E.g., Stack, supra, 519 A.2d at 153; Beale, supra, 465 A.2d at 803; State v. LeClair, 425 A.2d 182, 187 (Me. 1981) (evidence must clearly connect third party with charged offense to be admissible) (citing Commonwealth v. Graziano, 368 Mass. 325, 331 N.E.2d 808, 811 (1975) ("evidence should not be too remote in time or place or too weak in probative quality, and it should be closely related to the facts of the case against the defendant")); see also United States v. Morgan, 189 U.S.App. D.C. 155, 157-59, 581 F.2d 933, 935-37 (1978) (trial court improperly excluded evidence which "suggested that a third person was guilty of crime charged"); Hawkins, supra, 260 N.W.2d at 159; Marrone v. State, 359 P.2d 969, 984 (Alaska 1961) (proffered evidence must have an "inherent tendency to connect [the third person] with the actual commission of the crime"); Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923) (evidence which tends to closely connect third party with crime at issue is admissible).

There 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. In this regard, our focus is on the effect the evidence has upon the defendant's culpability, and not the third party's culpability. Hawkins, supra, 260 N.W.2d at 158-59 (purpose of evidence is not to "prove the guilt of other person, but to...

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