Greene v. United States ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 19-CO-713 & 20-CO-349
MARQUELL GREENE, APPELLANT,
V.
UNITED STATES OF AMERICA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2016-CF3-11579)
(Hon. Kimberley S. Knowles, Trial Judge)
(Submitted November 19, 2021 Decided August 4, 2022)
Thomas D. Engle and Sharon L. Burka for appellant.
Elizabeth Gabriel, Assistant United States Attorney, Michael R. Sherwin,
Acting United States Attorney at the time, and Elizabeth Trosman, Chrisellen R.
Kolb, Brittany Keil, John P. Gidez, Assistant United States Attorneys, for appellee.
Before EASTERLY, MCLEESE, and DEAHL, Associate Judges.
DEAHL, Associate Judge: A jury convicted Marquell Greene of assault with
intent to rob while armed and a host of subsidiary charges. The trial court sentenced
him to thirteen years’ incarceration. Shortly after the jury rendered its verdict,
Greene filed a motion for a new trial under D.C. Super. Ct. Crim. R. 33, which
2
highlighted that two other men had confessed to the crimes. Greene later filed a
motion to vacate and set aside his convictions under D.C. Code § 23-110. That
motion argued, in part, that Greene’s trial counsel was ineffective in failing to
investigate a lead—and present evidence—that those same two men were the real
perpetrators. The trial court denied both motions, and Greene now appeals. We
vacate both orders and remand for further proceedings.
I.
A grand jury indicted Marquell Greene for assault with intent to rob while
armed, among other offenses. The government alleged that Greene posted an online
notice advertising a Lexus for sale, and then lured Donald Pinkney to a meeting place
under the pretense of selling him that car. At trial, Pinkney testified that he arrived
at the meeting place with his eight-year-old daughter in tow, and the two of them
exited their car to inspect the Lexus. Greene then held the two of them at gunpoint
and tried to rob Pinkney. Greene threw Pinkney to the ground, but eventually
Pinkney escaped with his daughter into a nearby building. Pinkney was left with
“some scrapes,” and his daughter was uninjured.
Greene maintained that he was not the perpetrator and that Pinkney, who
picked Greene as his assailant from a photo array, had misidentified him. But
3
considerable evidence supported Pinkney’s identification of Greene as his assailant.
For instance, the “bait car” that was listed for sale and brought to the scene was
registered to Greene; the username of the person selling the car online was
marquell_greene@yahoo.com; and a GPS tracking device worn by Greene indicated
that he was in the immediate area when the assault occurred.
In the lead-up to trial, Greene’s girlfriend and a man named Deangelo Johnson
approached Greene’s trial counsel, Rebecca Bloch. Johnson told Bloch that it was
he, rather than Greene, who committed the offenses. Bloch, who had viewed
surveillance video capturing a portion of the assault, told Johnson that he was
obviously not the perpetrator—Johnson was short with long hair, while the assailant
caught on camera was tall with short hair. At that point, Johnson turned to Greene’s
girlfriend and said, “You didn’t tell me they had it on video.” Bloch then told Greene
about the exchange, and Greene indicated he did not want to involve Johnson (a
friend of his) or make him a co-defendant. Bloch did not pursue the lead any further.
A jury convicted Greene of all charges.
Three days after the jury rendered its verdict, Greene submitted a pro se
motion for a new trial in the “interest of justice” asserting that the real perpetrator
had come forward and admitted his guilt, and that Bloch failed to investigate and
4
present evidence of that alternative perpetrator. See D.C. Super. Ct. Crim. R. 33.
Given the seeming conflict of interest, Bloch withdrew as Greene’s counsel, and the
court appointed post-trial defense counsel, John Carney, to assist with the new trial
motion.
Carney then learned that Johnson—together with another man named Aubrey
Wallace—had met with a defense attorney named Bryan Brown (otherwise
unaffiliated with Greene’s case) after the conclusion of Greene’s trial, and that the
two men said they had committed the offense together. Unlike Johnson, Wallace
resembled the assailant captured on the surveillance video, and similarly resembled
Greene. The two men said that Johnson created the bogus car listing and coordinated
the fake sale. Johnson explained that he used Greene’s email address, which he
knew the password to, and Greene’s Lexus, which he had a key to, having previously
borrowed it. According to the two men, Wallace was the one with the gun who
carried out the assault, sticking Pinkney up and tackling him, and is the one seen in
the surveillance footage. While Johnson had come forward before trial, he made no
mention of an accomplice at that point, and Wallace did not come forward until after
the jury had rendered its verdict.
5
Carney filed a supplement to Greene’s new trial motion on Greene’s behalf,
detailing the new information about Johnson and Wallace and requesting an
evidentiary hearing. The trial court held the requested evidentiary hearing but
denied the motion. The court indicated it was applying the more lenient “interest of
justice” standard reserved for new trial motions filed within seven days of the jury’s
verdict, as Greene’s initial pro se filing had been. See D.C. Super. Ct. Crim. R.
33(b)(2). 1 That standard, as applied to testimony from a new witness that came to
light only after trial, asks whether “a fair trial requires that the [new witness’]
testimony be made available to the jury.” Benton v. United States, 188 F.2d 625,
627 (D.C. Cir. 1951); see also M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (D.C.
Circuit opinions “rendered prior to February 1, 1971” are binding on this court). The
court answered in the negative, reasoning that “[e]ven assuming arguendo that the
Court credits the statements of the two witnesses” confessing to the crimes, Greene’s
motion must nonetheless fail because that evidence “could have been discovered
with due diligence before trial.”
1
In 2017, Rule 33 was amended so that this standard now applies to motions
filed within fourteen days of the jury’s verdict. See D.C. Super. Ct. Crim. R. 33
comment to 2017 amendments. Motions based on newly discovered evidence, by
contrast, may be filed within three years of the jury’s verdict. D.C. Super. Ct. Crim.
R. 33(b)(1). But the movant must satisfy “stricter standards” when a new trial
motion is filed outside of Rule 33(b)(2)’s more abbreviated timeline. Green v.
United States, 164 A.3d 86, 91-94 (D.C. 2017).
6
In a prior appeal, we vacated that order and remanded back to the trial court.
We observed that, despite its assertion to the contrary, the “court seemed to apply
the more rigid five-factor test which governs motions for a new trial based on newly
discovered evidence” outside of the narrow timeframe provided by Rule 33(b)(2).
Greene v. United States, 17-CF-810, Mem. Op. & J at 1-2 (D.C. Feb. 15, 2019). It
should have instead applied the more lenient interest of justice standard applicable
to R. 33(b)(2) motions, given when Greene filed his motion. 2 Id. We highlighted
that under the more lenient standard, a lack of diligence on the movant’s part is not
a fatal defect precluding relief, though it “remains a consideration.” Id. at 2; see also
Green v. United States, 164 A.3d 86, 95 (D.C. 2017) (“[A]ppellant is not required to
demonstrate his own diligence under the interests of justice standard, [though]
diligence is a valid factor for the trial court, and this court, to consider.”).
2
The more lenient interest of justice standard applies to all motions filed
within Rule 33(b)(2)’s narrow timeframe (seven days prior to the 2017
amendments), including those based on newly discovered evidence. Sellars v.
United States, 401 A.2d 974, 978-79 (D.C. 1979). The more exacting five-factor
test for claims based on newly discovered evidence and filed outside of Rule
33(b)(2)’s abbreviated window is: “(1) the evidence must have been discovered
since the trial; (2) the party seeking the new trial must show diligence in the attempt
to procure the newly discovered evidence; (3) the evidence relied on must not be
merely cumulative or impeaching; (4) it must be material to the issues involved; and
(5) of such nature that in a new trial it would probably produce an acquittal.” Heard
v. United States, 245 A.2d 125, 126 (D.C. 1968).
7
On remand, the court denied Greene’s new trial motion anew. The court again
“assum[ed] the credibility of the statements of the two witnesses—Deangelo
Johnson and Aubrey Wallace.” But it reasoned that Greene’s “motion must fail
because there are no ‘exceptional circumstances’ which prevented him from
receiving a fair trial.” The court once more stressed Greene’s lack of diligence in
pursuing and presenting Johnson and Wallace’s confessions, noting that “Wallace’s
testimony could have been discovered through due diligence” if defense counsel had
only followed up on Johnson’s lead. While the court was careful to note that the
lack of diligence was “not a determinative factor,” it weighed it heavily “among
other factors” animating its decision. In closing, and contrary to its previously stated
operating assumption that Johnson and Wallace were credible, the court articulated
reasons to doubt Johnson and Wallace: Johnson “changed his version of the events,”
telling Greene’s trial counsel that he was the perpetrator, but only after trial did he
add that he had an accomplice in Wallace. As for Wallace, the court noted “he
provided limited details,” did not provide a sworn statement or allow himself to be
recorded, and was biased because he was “either a friend or acquaintance” of
Greene. 3
3
The record is thin on this last point. When Carney was asked about the
extent to which Wallace and Greene knew each other, he answered (based on
Wallace’s telling) that “[i]t was just like they go into a particular area and on
Wilmington Street and they hang out.” Similarly, the Rule 33 motion Carney filed
8
In the meantime, Greene also filed a pro se motion under D.C. Code § 23-110to vacate his convictions due to ineffective assistance of counsel, and Carney
followed-up with a supplemental filing in support of the motion. The counseled
supplement focused largely on trial counsel’s failure to call a different witness,
Lawrence Washington, who attested that he witnessed the assault and that Greene
was not the person who committed it. It also claimed that trial counsel was
ineffective for failing to investigate Johnson’s confession to her that he had
committed the crime, noting that if counsel had exercised “reasonable diligence” and
followed up on that lead, she would have learned that Wallace aided Johnson and
matched the person on the surveillance video. In denying Greene’s § 23-110 motion,
the trial court rejected Greene’s argument that his counsel was ineffective for failing
to call Washington as a witness. However, the court did not address the argument
that Greene’s trial counsel was ineffective in failing to investigate and present
evidence about Johnson and Wallace as the true perpetrators.
on Greene’s behalf indicated that Wallace “knows Marquell Greene.” When pressed
further on the subject, Carney said he did not know the extent of any relationship
between Wallace and Greene.
9
Greene now brings this appeal, challenging both the trial court’s order
denying his Rule 33 motion for a new trial and its order denying his § 23-110 motion
to vacate his convictions.
II.
A.
We begin with the court’s denial of Greene’s Rule 33 motion for a new trial.
“A trial court’s denial of a motion for new trial is reviewed for abuse of discretion,”
and “[w]e will not reverse if the denial is reasonable and supported by the record.”
Tyer v. United States, 912 A.2d 1150, 1166-67 (D.C. 2006). A defendant is entitled
to a new trial in “the interest of justice” under Rule 33 if the motion is made in the
timeframe set forth in Rule 33(b)(2), and “‘exceptional circumstances’ prevented the
defendant from receiving a fair trial.” Id. at 1167 (quoting Huggins v. United States,
333 A.2d 385, 387 (D.C. 1975)). “Perhaps unsurprisingly, our precedents do not
cabin or clearly describe the ‘exceptional circumstances’ that will justify granting a
new trial in the interests of justice.” Green, 164 A.3d at 93. It is, instead, a fact-
intensive inquiry. Id.
10
“The interest of justice standard calls for a new trial if ‘a fair trial requires that
the new witness’ testimony be made available to the jury.” Sellars v. United States,
401 A.2d 974, 979 (D.C. 1979) (quoting Benton, 188 F.2d at 627 (parentheses
omitted)). Put another way, “the interest of justice calls for a new trial when a new
witness with important testimony is found” within the brief post-verdict timeframe
provided by Rule 33(b)(2). Id. To illustrate the point, in Benton, a defendant was
convicted of “taking indecent liberties with a child” based primarily on the child’s
account of what occurred. Benton, 188 F.2d at 626. Four days after the guilty
verdict, the defense filed a new trial motion along with an affidavit from the child’s
mother in which she cast doubt on several details in her daughter’s account, and
further stated, “my conscience does not allow me to believe that anything happened
to my girl on that night.” Id. at 627. The trial court denied the motion. The D.C.
Circuit reversed, holding that “a fair trial requires that the mother’s testimony be
made available to the jury.” Id.Applying those same principles, we conclude the trial court abused its
discretion in denying the new trial motion. The trial court’s express operating
assumption, both in its initial denial and again on remand, was that Johnson and
Wallace were credible and telling the truth. In other words, the court started from
the premise that Greene was innocent. From that premise, and contrary to the trial
11
court’s conclusion, no reasonable sense of justice would require Greene to spend
more than a decade in prison simply because he or his counsel could have been more
diligent in pursuing exonerating evidence before trial. “[C]oncern about the injustice
that results from the conviction of an innocent person has long been at the core of
our criminal justice system.” Schlup v. Delo, 513 U.S. 298, 325 (1995); cf. Benton,
188 F.2d at 627. “That concern is reflected . . . in the ‘fundamental value
determination of our society that it is far worse to convict an innocent man than to
let a guilty man go free.’” Schlup, 513 U.S. at 325 (quoting In re Winship, 397 U.S.
358, 372 (1970) (Harlan, J., concurring)). Moreover, because a Rule 33(b)(2)
“motion must be filed so soon after trial,” a trial court’s consideration of it should
be “substantially unaffected by the usual considerations favoring finality of
judgments.” Godfrey v. United States, 454 A.2d 293, 299 (D.C. 1982).
The trial court is free to revisit, on remand, its starting premise that Greene
was innocent. But if the court concludes there is a reasonable probability that jurors
would hear and credit Johnson and Wallace’s account, then there is necessarily “a
reasonable probability that the outcome of a new trial would be different from the
12
result in the first trial,” and a new trial should follow. See Whitley v. United States,
783 A.2d 629, 635 (D.C. 2001). 4
We recognize that the trial court, at one point, seemed to disregard its
operating premise that Johnson and Wallace were credible, providing several
reasons to doubt their account. In concluding its analysis, the court opined that
Johnson had “changed his version of events,” while Wallace provided “limited
details,” would not provide a sworn or recorded statement, and was biased because
he was “either a friend or acquaintance” of Greene’s. 5 But the court never posited
this as an alternative basis for its ruling, stripped of the express premise that Johnson
4
Whitley concerned a motion for a new trial filed more than two years after
the verdict based on newly discovered evidence, and thus applied a more exacting
standard than the one we confront here. 783 A.2d at 632. It therefore may not be
necessary for Greene to satisfy Whitley’s “reasonable probability” of acquittal
standard to satisfy the more relaxed standard applicable in this context, that “a fair
trial requires that the [new witness’] testimony be made available to the jury.”
Benton, 188 F.2d at 627; see also Green, 164 A.3d at 93; Sellars, 410 A.2d at 979;
Brodie v. United States, 295 F.2d 157, 160 (D.C. Cir. 1961). But such a showing
would certainly suffice, at least absent evidence that Greene was aware of Wallace’s
confession before trial and simply made a strategic decision not to introduce it.
5
As explained supra note 3, there is little support for this last conclusion. It
is not clear the extent to which Wallace knew Greene at all, as the evidence suggests
only that he was familiar with him from the neighborhood. Assuming that is some
bare evidence of “bias,” as the trial court concluded, it is not much. A casual
familiarity with another is typically not the type of relationship that would prompt
one to falsely confess to a serious crime on the other’s behalf.
13
and Wallace were credible. Nor did it address whether its own doubts meant there
was no reasonable probability that a new jury would credit Johnson and Wallace’s
account. See supra note 4 and accompanying text. It is therefore unclear whether
this credibility discussion was an independent basis for the trial court’s decision,
though even if it were, we would have no assurance that its ruling was not infected
by its overly exacting view of what satisfies the interest of justice standard, as
discussed above.
We therefore view this internal inconsistency in the court’s reasoning—
having abandoned its own premise sub silentio—as another reason to vacate its order
and remand for reconsideration. See Subsalve USA Corp. v. Watson Mfg., Inc., 462
F.3d 41, 45 (1st Cir. 2006) (“Ordinarily, an appellate court confronted with an
internally inconsistent order would vacate the offending order and return the case to
the authoring court for clarification.”).
B.
Turning to the trial court’s denial of Greene’s § 23-110 motion, we again
vacate and remand for reconsideration. A key aspect of Greene’s argument was that
his trial counsel was ineffective in failing to investigate Johnson’s confession, and
had she done so in the exercise of “reasonable diligence,” she “could have learned
14
the identity of Aubrey Wallace, the individual who in fact committed the offense.”
That argument echoed the trial court’s own reasoning—in denying Greene’s Rule
33 motions—that Wallace “could have been discovered before trial” through the
exercise of “due diligence.” 6
Greene now correctly points out that, in ruling on his § 23-110 motion, the
trial court made no mention of Wallace and entirely ignored this aspect of his claim. 7
“[B]ecause the trial court did not rule on this issue, we remand to allow the court to
consider [it] in the first instance.” Arrington v. United States, 238 A.3d 218, 221
(D.C. 2020).
6
In denying his Rule 33 motion, the trial court faulted Greene for directing
his counsel not to speak with Johnson because he “didn’t want to make him a co-
defendant.” It is not at all obvious that a defendant’s direction would relieve counsel
of their duty to investigate an exonerating lead. “Our law is clear ‘that counsel for
the accused has ultimate responsibility for many tactical trial decisions, such as
which witnesses to call.’” Blackmon v. United States, 146 A.3d 1074, 1079 (D.C.
2016) (quotation omitted). Those judgment calls themselves must be predicated on
reasonable investigation. See Cosio v. United States, 927 A.2d 1106, 1123 (D.C.
2007) (en banc) (“‘[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable,’ but ‘strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.’”) (quoting Strickland v. Washington, 466 U.S. 668, 690-91 (1984)).
7
Greene also contends that the trial court erred in concluding, without holding
an evidentiary hearing, that his counsel was not ineffective for failing to call
Washington as a witness. In light of our disposition otherwise vacating the court’s
orders and remanding, we do not opine on that contention.
15
The government counters that a remand is unwarranted because “appellant did
not raise trial counsel’s alleged errors respecting Johnson and Wallace in his
§ 23-110 motion,” or at least did not do so in a manner that “suffice[d] to raise the
. . . issue as an independent ground for relief.” We disagree. The counseled
supplement to Greene’s § 23-110 motion repeatedly argued that trial counsel’s
failure to investigate Johnson’s lead and track down Wallace amounted to ineffective
assistance. Page two of the five-page supplement argued (1) that trial counsel “failed
to call witnesses that would have established that defendant did not commit the
offenses,” highlighting Wallace as one of those two witnesses, and (2) that trial
counsel “through reasonable diligence pretrial could have learned the identity of
Aubrey Wallace, the individual who in fact committed the offense.” Counsel then
dedicated the penultimate paragraph of his argument to detailing Johnson and
Wallace’s account and how it could have been uncovered before trial through
diligent investigation. The supplement’s final substantive sentence—its parting
shot—was that “if this evidence had been presented at trial the result of the
proceeding would have been different.”
16
Greene more than adequately presented the argument for the trial court’s
consideration. The court simply failed to rule on it. 8
III.
The trial court’s order denying Greene’s Rule 33 motion for a new trial, and
its order denying his § 23-110 motion, are hereby vacated. We remand the case for
further proceedings.
So ordered.
8
The government also points out that Greene “expressly declined to present
an ineffective-assistance claim” “during the course of the new-trial-motion
litigation,” as if that somehow waived this aspect of his subsequent § 23-110 claim.
It did not. Greene sought a new trial under Rule 33 in the interest of justice,
regardless of whether his trial counsel was ineffective. The government responded
that his Rule 33 claim was, in substance, an ineffective assistance of counsel claim,
and that the court should treat it as such. Greene disagreed, and replied that he was
not asserting ineffective assistance of counsel at that time, while expressly noting
that he could always do so later. Nothing about that procedural history alters the
fact that Greene did later raise a § 23-110 claim that his trial counsel was ineffective
for failing to investigate Johnson’s lead and uncover Wallace as the real perpetrator.