Wynn v. United States

• Decision Date: 09 April 2020
• Docket Number: No. 17-CF-450,17-CF-450
• Citation: 241 A.3d 277
• Parties: Irik C. WYNN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

241 A.3d 277

Irik C. WYNN, Appellant,

v.UNITED STATES, Appellee.

No. 17-CF-450

District of Columbia Court of Appeals.

Argued December 6, 2018

Decided April 9, 2020

Gregory M. Lipper for appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Nicholas P. Coleman, and Natasha Smalky, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, and Glickman and Beckwith, Associate Judges.

Blackburne-Rigsby, Chief Judge:

Following a jury trial, appellant Irik C. Wynn was convicted of assault with a dangerous weapon ("ADW"), D.C. Code § 22-402 (2019 Supp.), of complainant Kevin Smith.¹ Appellant was tried jointly with codefendant Michael Benjamin, whose motion for acquittal was granted at the conclusion of the government's case. The government's evidence at trial included Smith's testimony and a redacted interview between codefendant Benjamin and a Metropolitan Police Department ("MPD") detective after Benjamin's arrest, which was introduced only against Benjamin. On appeal, appellant argues that the trial court erred in (1) admitting the redacted interview, and (2) preventing him from cross-examining Smith on potential bias. We hold that the trial court erred in admitting the redacted interview in violation of appellant's Sixth Amendment right to confrontation and Super. Ct. R. 14 (" Rule 14"), and that the error was not harmless. We also hold that the trial court did not abuse its discretion in limiting appellant's cross-examination of Smith. We reverse appellant's convictions and remand for a new trial.

I. Factual and Procedural Background

Appellant and codefendant Benjamin were charged with assaulting Smith on October 20, 2016. The government's theory at trial was that the assault was motivated by a drug debt Smith owed the two men. Smith testified that he regularly purchased synthetic marijuana on credit from both appellant and Benjamin and that, at the time of the assault, he owed both of them money. Smith also testified that, on the day of the assault, he and Benjamin argued over his drug debt and agreed that Smith would pay the debt in two days. After their argument, according to Smith, Benjamin left in his car. Smith testified that, approximately 20 to 30 minutes later, appellant approached Smith near the corner of 57th and East Capitol Streets, carrying what Smith believed to be a weapon. Smith testified that appellant asked him, "[W]here is the money that you owe me[?]" before hitting him on the head with a gun multiple times. He also testified that Benjamin was watching the assault from the corner.

Following his arrest, Benjamin gave a recorded interview to MPD Detective Chad Howard. In the interview, Benjamin referenced appellant by his given name and nickname, "E." Benjamin admitted to confronting Smith about the debt but denied apprising appellant of Smith's location or calling appellant after his argument with Smith. After Detective Howard told Benjamin that the police had his cellphone records, Benjamin acknowledged that his cellphone called appellant on the day of the assault, first stating that he called appellant but appellant did not answer, then suggesting that a third party used his cellphone to call appellant.

Appellant and Benjamin were indicted on January 25, 2017, for the assault on Smith. Before the indictment was filed, appellant filed a motion for severance. Appellant asserted that the government's introduction at their joint trial of Benjamin's interview with Detective Howard would violate his Sixth Amendment Confrontation Clause right. Because Benjamin did not intend to testify, appellant contended, Benjamin's statements would be "extremely prejudicial" under Bruton v. United States , which provides that, in a joint criminal trial, the admission of a nontestifying codefendant's statement that implicates a defendant violates the defendant's right to confrontation. 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Appellant argued that severance was necessary under the Confrontation Clause, as well as Super. Ct. R. 14 (" Rule 14"), which provides that "[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant ... the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." After a hearing, the trial court denied appellant's motion and allowed the government to introduce the interview with redactions, replacing references to appellant with neutral terms such as "he," "him," "the other guy," and "the other dude." At trial, the redacted interview was read to the jury by government counsel and Detective Howard.

Also at trial, appellant's counsel sought to cross-examine Smith on two issues: (1) a recent prior assault on Smith in the same neighborhood by a man named Cory, and (2) additional debts owed by Smith to others in the community. With respect to the incident with Cory, appellant's counsel denied that he was pursuing a Winfield defense,² even though he explained that cross-examination on those issues would show more than a "vague idea that somebody else is responsible," because it would show that there was "an actual person and an actual event." The trial court noted that even though appellant was "not necessarily saying that Cory was the one who attacked him on October 20," appellant sought the testimony "to show that there were other people who had a motive to assault the complaining witness and could have been responsible instead of Mr. Wynn and Mr. Benjamin." The trial court ruled that the proffer "that someone else committed the assault," suggesting "a hypothetical unidentified person who may have had his own motive for the attack was responsible," was "exactly what Gethers prohibits." To the extent appellant wanted to name Cory as Smith's possible assailant, the trial court concluded that the evidence would be prohibited under Winfield "without a proffer that Cory had both a motive and practical opportunity to commit the offense." The trial court similarly denied appellant's request to cross-examine Smith about his alleged community debts after appellant failed to proffer how the testimony would be relevant.

After the government rested its case, appellant and Benjamin moved for judgment of acquittal. The trial court granted Benjamin's motion and denied appellant's motion. At the conclusion of the trial, the trial court instructed the jury to disregard Benjamin's interview with Detective Howard in considering the case against appellant. During its deliberations later that day, the jury sent a note asking the court, "[W]hat portion of [D]etective Howard's time on the witness stand as a witness for the prosecution can we consider?" The trial court responded in writing and informed the jury, again, that it was not to consider any substantive part of Detective Howard's testimony as the government's witness, but that it was allowed to consider Detective Howard's testimony when he was called as appellant's witness.³ The jury convicted appellant of ADW, but acquitted him of the remaining charges. This appeal followed.

II. Legal Standard

A. Extrajudicial Statements Under the Confrontation Clause and Rule 14

The Sixth Amendment's Confrontation Clause provides a criminal defendant with the right "to be confronted with the witnesses against him," including the right to cross-examine those witnesses. U.S. Const. Amend. VI ; see Smith v. United States , 180 A.3d 45, 51 (D.C. 2018). The introduction of "incriminating extrajudicial statements of a codefendant" who renders himself unavailable for cross-examination by asserting his Fifth Amendment right not to testify violates the defendant's right to confrontation. Bruton , 391 U.S. at 135–36, 88 S.Ct. 1620 ; Thomas v. United States , 978 A.2d 1211, 1222–23 (D.C. 2009). "[A] major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him." Bruton , 391 U.S. at 126, 88 S.Ct. 1620 (citation omitted). That opportunity is absent as to incriminating extrajudicial statements of a codefendant admitted in a joint trial when, as is typical, the codefendant does not testify. Id. at 135, 88 S.Ct. 1620. Additionally, under Rule 14, the trial judge has a "continuing duty to take adequate steps to reduce or eliminate any prejudice arising from joinder." Thomas , 978 A.2d at 1223 (quoting Carpenter v. United States , 430 A.2d 496, 503 (D.C. 1981) (en banc)). In Carpenter , we held that Rule 14 requires the trial court to "take appropriate steps to minimize the prejudice inherent in codefendant confessions[,] which are inadmissible against the nondeclarant defendant." 430 A.2d at 502.

The issue in these circumstances is whether there was a "substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [appellant's] guilt." Bruton , 391 U.S. at 126, 88 S.Ct. 1620 ; see also Gray v. Maryland , 523 U.S. 185, 190, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) ("[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." (quoting Bruton , 391 U.S. at 135, 88 S.Ct. 1620 )); Thomas , 978 A.2d at 1233.

The remedial options—whether under the Confrontation Clause or Rule 14—are the same:

[U]nless the government agrees to forgo any use of the statement, it must be redacted to eliminate all incriminating references to the codefendant, or the co-defendant's motion for severance must be granted—whether or not the defendant who made the statement takes the stand and testifies.

Thomas , 978 A.2d at 1224 (citation and internal...