Newman v. U.S.
| Decision Date | 07 August 1997 |
| Docket Number | No. 94-CF-1265,No. 94-CF-1263,No. 96-CO-1061,94-CF-1263,94-CF-1265,96-CO-1061 |
| Citation | 705 A.2d 246 |
| Parties | Michael L. NEWMAN and Delonte B. Samuels, Appellants, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
COUNSEL: Peter H. Meyers, appointed by this court, for appellant Newman.
Carol Garfiel Freeman, appointed by this court, for appellant Samuels.
Eumi Choi, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Thomas C. Black, and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.
Ferren, Associate Judge: This case concerns primarily the following issues: as to appellant Samuels, whether the trial court erred in excluding extrinsic impeachment evidence tending to show that a key government witness was biased, and that someone other than Samuels committed the charged murder and related crimes; and, as to appellant Newman, whether the court erred in denying without a hearing his motion for a new trial based on alleged ineffective assistance of counsel.
Newman and Samuels were indicted for the June 18, 1993, murder of Rudy Williams during an attempted robbery of Williams and his two friends, Robert Harvey and Reuben Nicholas. The case first went to trial before Judge Alprin on February 28, 1994. Because of a juror's illness, the court declared a mistrial when the defendants refused to proceed with eleven jurors. The case was tried again before Judge Alprin on July 18-21, 1994, and on July 22, 1994, the jury found Newman and Samuels guilty of two counts of felony murder, D.C. Code § 22-2401 (1996 Repl.); second-degree murder, id. § 22-2403; first-degree burglary while armed, id. § 22-1801; armed robbery, id. § 22-2901; possession of a firearm during a crime of violence (PFCV), id. §§ 22-3202 (a), -3204 (b); and carrying a pistol without a license (CPWL), id. § 22-3204. 1 (They both were acquitted on charges of first-degree murder.) Newman and Samuels filed timely notices of appeal. In addition, Newman appeals from the denial, without a hearing, of his motion for a new trial based on ineffectiveness of trial counsel. Id. § 23-110. For the reasons elaborated below, we remand the case in Samuels' Appeal No. 94-CF-1265 for reconsideration of Samuels' proffered extrinsic impeachment evidence. We affirm Newman's conviction in Appeal No. 94-CF-1263, but we remand Newman's § 23-110 claim in Appeal No. 94-CO-1061 for a hearing on the alleged ineffectiveness of trial counsel.
At trial, three eyewitnesses testified for the government: the two other victims (Harvey and Nicholas) and Theresa Hungerford. Harvey testified that he, Nicholas, and Williams had attended a picnic the day of the murder where they drank beer and brandy. After the picnic, the three went first to play lottery numbers and then to a liquor store to purchase more brandy. Williams and Harvey then followed Nicholas to the apartment of Sharon Bost, a prostitute Nicholas knew, to solicit sex. Bost asked the men for money to buy crack, which they provided. Bost then left to purchase the crack while the men remained to drink brandy. Bost returned, smoked the crack, then went into the back bedroom with Nicholas. While they were gone, Williams and Harvey smoked some of the crack. When Bost and Nicholas returned, Williams asked Bost if she had any friends. Bost left again, then returned in about ten minutes; the men continued drinking. Five minutes after Bost returned, Theresa Hungerford came to the apartment. Harvey and Hungerford went to the back room for fifteen minutes; they then returned to the main room where Bost, Williams, and Nicholas were waiting. After a conversation, Hungerford left angry. Ten minutes later, Hungerford returned and banged on the door, demanding that Bost open it. Hungerford and two men then "busted in" to the apartment; the shorter and lighter complected of the two -- identified by Harvey as Samuels -- pointed a black revolver in Harvey's face. Harvey noted that the taller of the two was armed with a "silver gun." Someone said "give it up mother fucker!" and ordered the men to take off their shoes and socks. In response to further commands, Harvey and Nicholas emptied their pockets and threw the money on the floor in front of them. Hungerford, meanwhile, patted down Williams. Williams refused to cooperate and began to struggle with the taller gunman. Williams was shot. Hungerford and the gunmen immediately fled; and Harvey ran out of the apartment to find a policeman. Harvey could not identify Newman as the second gunman, although Harvey described that gunman as darker complected and taller than Samuels.
Harvey's identification of Samuels, however, was weakened by Harvey's initial failure to select Samuels (as well as Newman) out of a photographic array. Harvey testified that he did not identify Samuels until he observed Samuels' picture in a newspaper article identifying Samuels as a suspect in several murders, including the murder of Williams. Even then, however, Harvey testified that he was only "80 percent sure" of his identification. Harvey further testified that, when he identified Samuels at a lineup, he had been "85 percent sure" that he was identifying the man who shot Williams. Finally, Harvey testified that he had never seen either gunman before the robbery and that neither had used a name during the course of the robbery.
Nicholas testified in a substantially similar fashion. Unlike Harvey, he identified both Newman and Samuels as the two gunmen. While he admitted to drinking alcohol both before and after arriving at Bost's apartment, he denied giving Bost money for crack or ever smoking crack. Nicholas also testified that the robbers ordered them to "give it up" and commanded the men to remove their shoes, socks, and pants. Nicholas further testified that Hungerford took the money the men had thrown on the floor and took a $ 20 bill from Williams' pocket. Nicholas also agreed that one of the gunmen -- whom he identified as Newman -- was significantly taller and darker complected than the other. The government then requested that Newman and Samuels stand, so that the jury could see that Newman was significantly taller and darker complected than Samuels. Nicholas's identification testimony, like that of Harvey, was weakened by his failure to identify either Newman or Samuels when shown a photographic array several weeks after the shooting. When counsel for Samuels asked Nicholas on cross-examination whether he had seen Samuels' photograph in the newspaper before identifying Samuels in a lineup, Nicholas replied in the negative.
Theresa Hungerford testified pursuant to an agreement in which she pleaded guilty to armed robbery in connection with the June 18 incident and agreed to testify about it for the government in exchange for the government's agreement to drop any other charge or investigation pending against her. Hungerford identified Newman and Samuels as the two gunmen. Hungerford testified that she had come to Bost's apartment because Bost had told her that men were there who wished to exchange money for sex. According to Hungerford, all three of the men smoked crack with her. Hungerford then went to the window and called outside to Newman that men were inside who had money. She testified that she knew Newman sold drugs and that she therefore anticipated he would come to the apartment to sell drugs to the men. Hungerford further testified that someone identifying himself as "Jeff" knocked on the door several minutes later, and that she thought it was Newman with another drug user/dealer Hungerford knew as "Jeff." Instead, she said Newman and Samuels entered with guns and demanded that the men "give it up." Hungerford at that point decided to join the robbery. She rifled the men's pockets and looked over the items they threw on the floor, but she denied taking any money.
The government also presented the following physical evidence and related testimony. Michael Newman's wallet containing photo identification was recovered from the crime scene. A Derringer pistol containing blanks also was recovered there, as was a spent bullet fired from a different weapon. The government called a weapons expert, who testified that the bullet was .38 caliber that must have been fired from a .38 special or from a .357 magnum. The government also introduced in evidence a silver gun with white handles found in Sharon Bost's apartment. A forensic expert testified that Rudy Williams died from a single gunshot wound.
Finally, the government called Officer Raymond Crawford, who had processed Newman after his arrest. Crawford testified that Newman spontaneously had remarked at the time: "You got the wrong one, just because my i.d. was found inside the house."
Newman and Samuels raise many allegations of error on appeal, three of which require detailed treatment. The first is Samuels' contention that the trial judge erred in refusing him permission to introduce evidence tending both to reveal Hungerford's bias against him -- her motive to lie -- and to show that another man, not Samuels, was among Hungerford's accomplices responsible for Williams' murder. 2
At the first trial, Samuels attempted to impeach Hungerford with an uncharged previous crime. According to the defense proffer, premised on a police report and on a victim's willing testimony, Hungerford committed a crime on June 3, 1993 -- just two weeks before the Williams shooting -- similar to the crime at issue here. Specifically, Samuels proffered that Hungerford had asked a stranger named Keith Bego to buy her beer and then accompany her back to her godmother's apartment to drink....
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