Thomas v. U.S., No. 04-CM-1281.

• Decision Date: 28 February 2008
• Docket Number: No. 04-CM-1281.
• Citation: 942 A.2d 1180
• Parties: Thomas H. THOMAS, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

942 A.2d 1180

Thomas H. THOMAS, Appellant v. UNITED STATES, Appellee.

No. 04-CM-1281.

District of Columbia Court of Appeals.

Argued October 5, 2007.

Decided February 28, 2008.

Jerry Ray Smith, for appellant.

Suzanne C. Nyland, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, Roy W. McLeese III and Lynn E. Haaland, Assistant United States Attorneys, were on the brief for appellee.

Before RUIZ, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.

BLACKBURNE-RIGSBY, Associate Judge:

After a bench trial, appellant Thomas H. Thomas was convicted of two counts of misdemeanor child sexual abuse under D.C.Code § 22-3006 (2001). Prior to his sentencing hearing, Mr. Thomas moved to set aside the guilty verdict, claiming that he received evidence, in the form of a letter, that exonerates him from the charges against him. The trial judge denied the motion without an evidentiary hearing and sentenced appellant to 220 days in jail. Additionally, he was required to register pursuant to the Sex Offenders Registration Act ("SORA")¹ for 10 years.

Mr. Thomas appeals his convictions based upon two grounds: (1) the trial court abused its discretion when it denied his motion for a new trial without a hearing (specifically, without hearing from Ms. Dobbins, the alleged author of the letter containing the information he claimed exonerated him); and (2) the trial court should have afforded him a jury trial because the additional penalty of registering as a sex offender pursuant to SORA removed this case from the kind the legislature deemed "petty." We agree with appellant that he was entitled to an evidentiary hearing on the newly discovered evidence and potentially exculpatory information contained in this letter. We disagree that the SORA requirement altered the legislature's determination that misdemeanor child sexual abuse is a non-jury demandable offense. Therefore, we reverse in part and remand for an evidentiary hearing on appellant's motion for a new trial, and we affirm the trial court's determination that appellant was not entitled to a jury trial.

I.

On or about August 9, 2003, appellant picked up E.M., his seven-year-old daughter, for their scheduled weekend visit and brought E.M. to his one-bedroom apartment in Washington, D.C. E.M. spent the entire weekend at appellant's house. Appellant's girlfriend Karlytta Wynn and his two-year-old son Ramir² stayed the weekend at Mr. Thomas's house as well. While Karlytta, E.M., and Ramir slept in the bedroom, Mr. Thomas slept on the couch.

E.M. testified³ that at some point during the weekend Mr. Thomas touched her private parts while they were both on the couch. She stated that she was wearing shorts and a T-shirt, and Mr. Thomas touched her with his hand. She did not say anything to him while it was happening and could not remember exactly how long it happened. She also testified to another incident, that same weekend, where Mr. Thomas asked her to touch his penis, and she complied.

E.M. returned to her mother's home on Sunday, but left shortly thereafter to go to summer camp. Upon returning from camp, E.M. told her mother, Diane Marcus, and grandmother "what daddy did, [he] touch[ed] my privates." Ms. Marcus called Mr. Thomas to discuss the event. Mr. Thomas denied the accusation, but said that "he woke up one night or one morning and there was E.M. laying there next to him with no panties on . . . he kept denying everything, but said can we get past this, we can get past this." Ms. Marcus testified that her response was, "If he didn't do anything what was there to get past."

The trial judge credited E.M.'s testimony. The judge stated that while E.M. was testifying about her father touching her private parts, her demeanor changed, and she began wringing her hands back and forth. She described the event with specificity and circled on a diagram, which the government introduced as an exhibit, where she was touched and where she touched her father. The trial judge also found Ms. Marcus to be credible, noting that prior to this event there was no evidence that she had any previous problems with Mr. Thomas and did not appear to have any motive to fabricate, misrepresent or exaggerate. The trial court did not credit the testimony of Mr. Thomas.

At the conclusion of the trial, the trial judge determined that the government had met its burden of proving misdemeanor sexual abuse and found that Mr. Thomas had touched. E.M.'s vagina and directed E.M. to place her hands on his penis to gratify sexual desires and also to humiliate, harass, degrade or arouse her.

On August 13, 2004, Mr. Thomas filed a Motion for a Hearing to Set Aside the Guilty Verdict, which the trial judge properly construed as a "Motion for New Trial." Attached to the motion was a three-page typewritten letter dated August 6, 2004 (the "August 6 Letter"), purportedly signed by appellant's ex-girlfriend Sylvia Dobbins, who is Ramir's mother. The letter asserted that Ms. Dobbins and Ms. Marcus had concocted a plan to coach and threaten E.M. into falsely accusing Mr. Thomas of sexual abuse. The letter also apologized for previously sending Mr. Thomas "a very nasty letter" while he was in jail awaiting sentencing. The August 6 Letter was accompanied by an undated cover letter addressed to Mr. Thomas's attorney, asking him to bring the August 6 Letter to the attention of the trial judge.

The government responded to the Motion for New Trial with an affidavit from Detective Maria Flores, who testified previously at trial and was found to be a credible witness by the judge. Her affidavit was based upon information she acquired after trial by interviewing both Ms. Dobbins and Ms. Marcus. According to Detective Flores's affidavit, Ms. Dobbins had denied authoring the August 6 Letter or signing it and further denied participating in any scheme to encourage E.M. to fabricate a charge of sexual abuse against Mr. Thomas. In addition, Ms. Dobbins provided Detective Flores with an undated letter that she sent to Mr. Thomas while he was incarcerated and awaiting sentencing. In the letter, she condemned him for "destroy[ing] the innocence of a beautiful little girl" and forcing their son, Ramir, into foster care "once again." Detective Flores also contacted Ms. Marcus about the allegations in the August 6 Letter, and Ms. Marcus flatly denied that she and Ms. Dobbins invented the abuse allegation.

At the sentencing hearing on September 15, 2004, the trial judge denied the Motion for New Trial, without a hearing, determining that the August 6 Letter did not provide an adequate basis for setting aside the convictions and ordering a new trial. In denying the Motion for New Trial, the trial judge stated that he had "fully credited [E.M.'s] testimony" at trial, finding that her testimony was "candid" with "forthright details." The trial judge also recalled "seeing clear fear of [Mr. Thomas] . . . during [E.M.'s] testimony." Against that evidence, the court considered the August 6 Letter, which came not from the mother of the complaining witness but from the mother of another of Mr. Thomas's children, purportedly claiming that E.M. had been coached in her testimony. The court found that the August 6 Letter was "almost incredible on its face," containing "a variety of conflicting and implausible motives . . . for . . . coaching" E.M. The court also found it significant that the August 6 Letter was "diametrically opposed" to the gist of the letter Ms. Dobbins admitted to writing and sending to Mr. Thomas while he was awaiting sentencing.

Lastly, the trial court found that, even if Ms. Dobbins testified to participating in a scheme to frame Mr. Thomas, "she would have been an incredible witness," and thus, her testimony could not be the basis for granting a new trial. The trial judge reasoned that Ms. Dobbins could not credibly claim to be the author of the August 6 Letter after denying it to Detective Flores. In addition, if she admitted to helping other witnesses lie to the court, she would have no credibility as a witness. On the other hand, the trial judge reasoned, if she continued to maintain she did not write the letter, then there would be no basis for a new trial.

II.

In order to be entitled to a new trial based on newly discovered evidence, the defendant must show that the evidence proffered was (1) newly discovered; (2) was not obtainable with due diligence by the moving party; (3) not be merely cumulative or impeaching; (4) material to the issue involved; and (5) of such a nature that an acquittal would likely result if the new evidence were presented to a jury. Herbin v. United States, 683 A.2d 437, 441 (D.C.1996) (internal quotation and citations omitted). We review the denial of a motion for a new trial without a hearing for abuse of discretion. Id. at 442 (citing Derrington v. United States, 488 A.2d 1314, 1341 (D.C.1985)). When issues of credibility are crucial to a determination of whether a defendant is entitled to a new trial, the judge must have an evidentiary basis — usually developed at a hearing where the relevant witnesses testify — before the new trial motion may be denied. See Arrington v. United States, 804 A.2d 1068, 1077 (D.C.2002) (noting that "whether the proffered evidence was newly discovered, whether [defendant] exercised diligence in his pursuit of the evidence, and whether the evidence was likely to lead to [defendant's] acquittal, could be illuminated by an evidentiary hearing").

In Arrington, we concluded that several of the factors set forth in Herbin, such as whether the evidence was newly discovered and whether the evidence would likely result in Mr. Arrington's acquittal, would be illuminated by an evidentiary hearing. Arrington, supra, 804 A.2d at 1077. Attached to Mr. Arrington's motion was an affidavit from Mr. Murray, whom Mr. Arrington met in prison after he was convicted. Id. at 1076. Mr. Murray admitted in his affidavit that he and not Mr....