Shepard v. U.S., 86-234.

• Decision Date: 29 February 1988
• Docket Number: No. 86-234.,86-234.
• Parties: Demon SHEPARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1115

538 A.2d 1115

Demon SHEPARD, Appellant, v. UNITED STATES, Appellee.

No. 86-234.

District of Columbia Court of Appeals.

Argued October 15, 1987.

Decided February 29, 1988.

Mary E. Davis, Washington, D.C., with whom Patrick M. Donahue was on the brief, for appellant.

David Howard Saffern, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before MACK, ROGERS, and STEADMAN, Associate Judges.

MACK, Associate Judge:

After a jury trial, appellant was convicted of malicious destruction of property in violation of D.C.Code § 22-403 (1981). While he was also charged with arson (D.C. Code § 22-401 (1981)) and possession of a molotov cocktail (D.C.Code § 22-3215a(a) (1981)), the jury found appellant not guilty on these counts of the indictment. On January 17, 1986, appellant was sentenced to serve a term of imprisonment of seven to twenty-one years. The government represented that appellant had two previous felony convictions, and prior to trial, he was served with life papers pursuant to D.C. Code § 22-104a (1981). Under this recidivist provision, appellant's sentence was enhanced beyond the ten-year maximum limit mandated by D.C.Code § 22-403.

Appellant contends that the trial court improperly excluded the testimony of his only witness, thereby denying his fundamental right to present witnesses in his own defense. Additionally, appellant argues that he was improperly sentenced pursuant to the enhanced penalty provision of D.C.Code § 22-104a. We reject the first contention but, remand for resentencing view of procedural error flowing from the filing of an erroneous information.

I.

On August 20, 1984, appellant, who was a former resident and employee of the Salvation Army, attempted to enter its warehouse at 526 First Street, N.W. Another employee, William Gleason, informed appellant that he could not enter the warehouse because he was no longer an employee. Mr. Gleason testified that appellant angrily left the premises.

In the early morning hours of August 22, Joseph Hopkins, a Salvation Army resident, observed from his third floor window,¹ appellant with an object in his hand standing in an alley next to the window of the Salvation Army chapel. Mr. Hopkins called out to appellant warning him not to do anything, and at that point, appellant threw the object through the window. Mr. Hopkins ran downstairs to the chapel and saw a ball of fire inside of the chapel. Shortly thereafter the authorities were called.

At a pretrial hearing, the government moved to exclude the testimony of Ms. Amy Lucille Urbin, who was the only witness that appellant intended to use in his defense at trial. Appellant's attorney made a factual proffer, in opposition to the government's motion, and presented the following testimony:

Ms. Urbin worked at the Amoco service station located at 500 New Jersey Avenue, N.W. as a cashier on the 6:30 p.m. to 6:30 a.m. shift on August 22, 1984. During the early hours of August 22, 1984, a black man, having a small build, small features, and wearing blue jean type pants and a brown shirt with flowers on it, approached her for the purpose of purchasing a small quantity of gasoline. The man tendered a small amount of money and filled up two small plastic containers with gas. After obtaining a small quantity of gas from the pumps, the man walked in the direction of the Salvation .Army. Approximately forty-five minutes to an hour later, police officers arrived at the gas station and inquired whether Ms. Urbin had sold gas to anyone in a container. While Ms. Urbin recognized appellant in a line-up which she attended at the police's request, she stated that appellant was not the individual who purchased the gas.

The trial court found that this evidence was inadmissible to prove that someone other than appellant committed the crimes enumerated in the three-count indictment. After a jury trial, in which appellant was convicted of malicious destruction of property, this appeal followed.

II.

This court has stated that "[t]he trial court's decision that proffered evidence is not sufficiently relevant or probative is reviewable only for an abuse of discretion." Beale v. United States, 465 A.2d 796, 803 D.C.1983) (citing Randall a united States, 353 A.2d 12, 14 D.C.1976) (emphasis added)), On die record before us, it is clear that the trial court properly exercised its discretion in excluding the testimony of Ms. Urbin.

Beale stands for the proposition that in order for evidence to be introduced at trial that someone other than the accused committed the offense, the evidence must be probative and dearly link the other person to commission of the crime. Id. (citing Brown v. United States, 409 A.2d 1093, 1097 (D.C.1979)). There must be sufficient indicia that the evidence is reliable. Turning to the instant case we see no reason to question the reliability of the evidence; we can question, however, whether the evidence was probative. We cannot say that the trial court could not have reasonably concluded that the fact that a man, other than appellant, who bought small quantities of gas in plastic containers, was not so clearly linked to the charged arson as to be probative of appellant's defense. Certainly the conduct of this man, taken as a fact, could not have posed an inconsistency with the guilt of appellant.

We are sensitive to appellant's assertion of his constitutional right to present witnesses in his own defense. However, this right must function in harmony with the evidentiary safeguards that are integral to a fair trial. In Brown v. United States, supra, we noted the delicate balance that must be maintained between the fundamental right to call witnesses in one's own defense and the exclusion of evidence that threatens to undermine a fair trial:

Of course, the accused in a criminal prosecution has a fundamental right to call witnesses in his own defense. Chambers v. Mississippi, 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297] (1973); Washington v. Texas, 388 U.S. 14 [87 S.Ct. 1920, 18 L.Ed.2d 1019] (1967). 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 . One commentator has stated the rule to be: "When guilt of another person is inconsistent with 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. . . . Punch v. United States, D.C.App., 377 A.2d 1353, 1358 (1977).

409 A.2d 1097 (emphasis added); accord Hall v. United States, 454 A.2d 314, 319 (D.C.1982) (where no evidence of romantic relationship other than "talking," trial court properly excluded proffered testimony intended to show that another rejected suitor had a similar motive to kill).

In the instant case, the proffered testimony did not cross the constitutional threshold of "clearly linking that other person to commission of the crime." In short, all we have is two concrete facts — a man bought gas and walked in the direction of the Salvation Army — but these facts require tremendous inferential leaps in order for us to conclude that the man who bought gas committed the arson rather than appellant. The record underscores the lack of additional facts which are essential in establishing the probative value of the proffered testimony.

The trial court's reasoning is instructive: [W]ithout some other connection, other than the fact that someone else other than the [appellant] bought gasoline in a small quantity, I just don't see how that's probative of whether or not your client committed the offense. Conceivably, that other person may have had those two containers and got the gasoline because he — his car broke down. It's not an uncommon occurrence and he got gasoline in a small container so he could take it to his car.

The record further illustrates that appellant's attorney was unable to persuade the court that the person who bought gas could be connected to the instrumentality of the criminal offense — the molotov cocktail. The man who bought gas at the Amoco station used plastic containers while the molotov cocktail was made of glass. The trial court stated: "I just don't see it as being probative . . . because . . . the type of container that was used as the molotov cocktail is different than the type of container that the item was put into."

Another argument advanced by appellant was that because the man walked in the direction of the Salvation Army, a clear link was established between the other person and the crime. Again, the trial court rejected this proffer noting:

[W]e don't know in which direction that person went except for the fact that they walked in the general — in a general direction towards the Salvation Army.

Admittedly, it is difficult to ascertain what is probative and what is not, and the trial court must exercise its discretion cautiously, especially when fundamental rights are in the balance. However, on this record, we can agree that what we have is a conglomeration of innocent facts which do not clearly link the other person who bought gas to the crime; a man bought gas and put it in a plastic container, he walked in a direction that even appellant's witness could not see, and he bought gas forty minutes to an hour before the Salvation...