Troy D. Richardson v. United States ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-CF-755
TROY D. RICHARDSON, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-11069-09)
(Hon. Gerald I. Fisher, Trial Judge)
(Argued December 5, 2013 Decided August 28, 2014)
Edward F.C. Gain, Jr. for appellant.
Peter S. Smith, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello,
Laura Bach, and Melinda Williams, Assistant United States Attorneys, were on the
brief, for appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and BELSON,
Senior Judge.
BELSON, Senior Judge: Troy Richardson appeals from a judgment of
conviction of voluntary manslaughter while armed and carrying a dangerous
2
weapon (prior felon) (CDW).1 He contends that the trial court abused its discretion
both in excluding evidence that supported his self-defense claim and in admitting
evidence that, in the months and years before the stabbing, he regularly used PCP,
and that the drug caused him to behave bizarrely. We agree that the trial court
erroneously exercised its discretion in excluding certain evidence that supported
Richardson‘s self-defense claim, that the error was not harmless, and that reversal
is therefore required. Richardson does not mention the CDW conviction in his
appeal brief, but because a finding that Richardson acted in self-defense would
control the resolution of the CDW conviction,2 we conclude that a new trial on
both charges is appropriate.
The trial that we order today will be Richardson‘s third on these two
charges. On January 8, 2010, Richardson was charged by indictment with first-
1
D.C. Code §§ 22-2105, -4502, -4504 (a) (2012 Repl.).
2
D.C. Code § 22-4504 (a) (2001). Self-defense is a defense to a CDW
charge for a person who is not carrying the weapon before the danger arises. See,
e.g., Mack v. United States, 6 A.3d 1224, 1229-30 (D.C. 2010) (―[We have] long
recognized that one is not guilty of carrying an unlicensed gun during the period it
is actually used in self-defense. However, this doctrine is inapplicable where one
anticipating harm carries a pistol in public for a period of time before the actual
danger arises.‖ (internal quotation marks and citations omitted)).
3
degree murder while armed3 and CDW in the May 17, 2009, stabbing of Tyrone
Wheaton. On September 17, 2010, a jury found Richardson not guilty of first-
degree and second-degree murder while armed, but was unable to reach a verdict
on the charges of voluntary manslaughter while armed and carrying a dangerous
weapon, and the court declared a mistrial. On April 6, 2011, a second jury found
Richardson guilty of those charges. As we will explain, the first jury heard
evidence that Richardson had ―snitched‖ on Wheaton and his family, and that
Richardson believed that Wheaton knew that he had done so. The trial court did
not allow Richardson to present most of this evidence to the second jury, ruling
that Richardson‘s speculation about what Wheaton believed was not relevant.4
Because Richardson‘s self-defense claim was premised substantially on his own
reasonable perceptions about what was happening between Wheaton and him, and
because evidence that Richardson snitched on Wheaton and his family was
relevant to whether his fear of imminent death or serious bodily harm at Wheaton‘s
3
D.C. Code § 22-2101 (2012 Repl.).
4
The first jury heard this ―snitch‖ evidence, but only because the
government ―opened the door‖ to it during the first trial by asking Richardson why
he didn‘t tell the police that Wheaton‘s brother had given him drugs that morning,
allowing him to explain that he had already told police that Wheaton‘s family was
selling drugs from their apartment. Although the jury heard this evidence, trial
counsel did not argue or explain its relevance at closing.
4
hands was reasonable, Richardson should have been permitted to present this
evidence to the jury.
I.
In the early evening of May 17, 2009, police responded to a 911 call from
2424 Elvans Road in Southeast, D.C., and found Tyrone Wheaton lying motionless
and nonresponsive in the doorway to apartment 203, where he lived. The Chief
Medical Examiner for the District of Columbia, who performed an autopsy on
Wheaton, testified that he died from acute blood loss from a stabbing that
punctured his aorta and left a wound seven to eight inches deep.
Earlier that afternoon, Wheaton had brought his girlfriend and their two
sons, then twelve and thirteen, to dinner at his apartment, where he had lived for
some years with his mother, Deborah Sparks, and two siblings. Appellant
Richardson, another long-time resident, lived across the hall in apartment 202.
According to Deontrae Ingram, a sixteen year-old neighbor, Richardson was
outside on the porch in front of 2424 Elvans Road that afternoon smoking a
―dipper‖ (a tobacco or marijuana cigarette dipped in PCP) when Wheaton
5
approached him. The two fought,5 and a crowd gathered to watch. Ingram, the
only member of that crowd to testify, said that after the fight Wheaton returned to
his apartment, and Richardson ran up the stairs after him, yelling, ―I‘m a kill you
bitch, I‘m a kill you.‖
Ingram continued inside to an inner stairwell which gave him a view of the
landing between Richardson‘s and Wheaton‘s apartments. He said that while
Wheaton was standing in the hallway between apartments 202 and 203 talking to
his mother, Richardson ―peeked‖ out of his door, then stepped out into the hallway
and punched Wheaton.
Deborah Sparks, Wheaton‘s mother, had been inside apartment 203 that
afternoon preparing dinner, and she testified that Wheaton went outside the
building briefly and returned a few minutes later, appearing upset, and then went
into the hallway. Hearing a commotion in the hall, she went to her apartment
doorway. She heard Richardson say, ―call the police, call the ambulance, because
he‘s about to die.‖ She then saw Richardson emerge from his apartment, stab
5
Testimony left it unclear who started the fight.
6
Wheaton, and quickly return to his apartment.6 Wheaton‘s sister, Jessica Sparks,
who also lived in apartment 203, said that she was returning home when she heard
about the stabbing from a neighbor, at which point she ran up the stairs, retrieved a
yellow and black crowbar that the family kept in the living room, and banged on
Richardson‘s door with it.
Wheaton‘s sons were called by the defense. They saw the events from the
living room of apartment 203, which gave them a partial view into the hallway.7
At trial, one son testified that after Richardson, unarmed, took a swing at Wheaton,
Wheaton entered apartment 203, grabbed a yellow and black crowbar from the
living room, and returned to the hallway. Richardson, then armed with a knife,
swung at Wheaton and missed, and Wheaton swung the crowbar at Richardson. He
did not see whether Wheaton hit Richardson with the crowbar. Richardson then
backed up and took a third swing at Wheaton with the knife. The other son
testified that he saw Wheaton, angry and yelling, grab the crowbar from behind the
TV in the living room, and return to the hallway. He said that Richardson stabbed
his father twice, and his father then walked back into apartment 203.
6
Another witness, a neighbor, gave a similar account of the events.
7
Their view of the hallway was obscured by a partial wall, and by their
mother and grandmother who were standing in the doorway.
7
Richardson testified at trial, saying that Wheaton approached him when he
was sitting on the porch outside 2424 Elvans Road that afternoon.8 He said that
Wheaton ―came up the steps, stood over top of me. And I looked up and he said
‗You snitch-ass bitch.‘‖ Then Wheaton attacked him. Seeking safety, he went
upstairs to his apartment. He said he was unlocking his apartment door when he
heard a woman‘s voice say, ―kill his ass, kill his ass,‖ and he then felt ―something
hard hit my back.‖9 Richardson said he grabbed a knife that was sitting on a ―half-
wall‖ or a ledge by his door as Wheaton was trying to force his way into
Richardson‘s apartment. He admitted to stabbing Wheaton with it. Afterward,
Richardson said he returned to his apartment, locked the door, and stayed there for
several hours. During that time, according to Officer Kelan Edwards who
responded to the 911 call, Richardson was listening to music and popping popcorn.
Edwards testified that he banged on Richardson‘s door with his fist and with a
baton, and identified himself as a police officer, only to hear a man‘s voice say,
8
Richardson said that he used cocaine and marijuana that day, but denied
smoking a ―dipper.‖ He did admit to regular PCP use.
9
Richardson also said that Wheaton ―grabbed me and slammed me on the
ground, pinned me down, began to choke me, smacked me, picked me up and try
to throw me down the steps‖ outside, but officers who responded to the 911 call
noticed no signs that Richardson had been injured, even though they asked him to
turn around and lift his shirt. Nor did he claim to be injured.
8
―get the fuck away from my door.‖ Richardson finally emerged only after police
cut the power supply to his apartment.
II.
As the jury in Richardson‘s first trial learned, but the jury in the trial before
us did not, the Sparks-Wheaton family occasionally sold drugs out of apartment
203, and Richardson, a longstanding drug addict, was a regular buyer.
Approximately six months before he stabbed Wheaton in May of 2009, Richardson
informed police about drug sales from apartment 203. He spoke several times with
Sergeant Yurell Washington of the Metropolitan Police Department, providing
Wheaton‘s name and the make and license plate number of the car Wheaton drove.
According to Richardson, after he spoke with Sergeant Washington, but well
before the stabbing, police executed a search warrant at apartment 203 and arrested
at least one family member for drug crimes on the basis of that search.10
In the first trial, Richardson called as a witness Sergeant Washington, who
confirmed that he spoke to Richardson several times by phone, and sent
undercover investigators to the area based on Richardson‘s information, but that
10
In the first trial, Richardson indicated that apartment 203 was searched in
November 2008, and the government also indicated in colloquy with the court
during the second trial that there was a search of the apartment that fall.
9
information never ―panned out.‖ Sergeant Washington testified that he did not
execute a warrant on apartment 203, and he heard about the executed warrant only
from Richardson himself.
This evidence came in during Richardson‘s first trial when his counsel asked
him why he did not tell the police that he stabbed Wheaton in self-defense. He
explained,
I didn‘t feel comfortable with the two detectives . . .
because I gave the police information—the Narcotic
Division about narcotics being sold out apartment 203
and when I first spoke with the Narcotic Detective I
didn‘t want to give out my name because I didn‘t want
my name leaked out because once you‘re known in the
neighborhood as being a snitch its repercussions behind
it.
Richardson also explained that he never met with Sergeant Washington in
person, because ―I didn‘t want to sign no papers to be—like I explained to you,
your name gets leaked in the community as a snitch. Once you give information
up, somehow, some way people find out that you‘re giving information up.‖
At the outset of the second trial, the government moved to exclude as
irrelevant Richardson‘s statements that he spoke to Sergeant Washington about
10
drug sales from apartment 203 months before the stabbing, that he believed that the
search subsequently executed on that apartment was based on information he
provided, and that Wheaton‘s brother sold him drugs the morning of the stabbing.
Richardson opposed the motion, saying that the point of introducing the evidence
was ―to just go with the whole idea that he was still trying to help the police and
that his theory of why Tyrone Wheaton was coming after him was because the
family had decided he was a snitch.‖ The court responded as follows:
[Court]: But what would be your evidence of that?
[Defense Counsel]: This was Mr. Richardson‘s –
[Court]: That doesn‘t matter, though. That‘s not relevant
on that issue, that he thought that they believed he was a
snitch. I don‘t see how that has anything to do with who
sold him the drugs or anything of that nature.
...
[Defense Counsel]: Well, very well, you know, I‘ll keep
away from that on direct, . . .
[Court]: . . . And what about the search warrant issue,
which is a little bit related to this?
[Defense Counsel]: It‘s the same thing. It‘s related in
Mr. Richardson‘s mind that he got – this attack was
happening because of him cooperating with the police.
We‘re not going to go into that. I won‘t go into it on
direct.
[Court]: Right, but Mr. Richardson needs to know that
unless specific approval has been given for that subject
matter, he can‘t testify. Even if you don‘t ask the
11
question, Mr. Richardson can‘t testify about that because
it‘s not relevant without more.
[Defense Counsel]: Very well.
The court then went on to address Richardson directly, and in doing so
expanded the scope of its ruling.
[Court]: Mr. Richardson, . . . what you think people may
have thought about you, just that view without more, is
not relevant. If you think somebody was doing
something because you believe they had a particular
thought, that‘s not relevant unless you can prove that, in
fact, they did have that thought. . .
...
[Defendant]: But that‘s part of the theory of my defense–
[Court]: . . . [B]ut just because you think something was
happening doesn‘t necessarily mean that you get to
testify about it just because you want to make that part of
your theory.
Later, before he testified, Richardson asked the court directly whether he
could explain why he thought Wheaton had attacked him. The court said that
Richardson could testify that Wheaton called him a ―snitch-ass bitch‖ when they
fought that afternoon, but he could not present his ―speculation about what Mr.
Wheaton, why he might have been angry at you or what was going on in his mind
12
as opposed to what he said or did. And so what you might think he was thinking is
not a proper topic for you to testify about.‖ The court explained that,
[Court]: Well, but you see the problem with that, Mr.
Richardson, is . . . you have to show a link between that
and these events. Not that you think there‘s a link, but
that there actually is a link.
[Defendant]: Well, actually from the incident and me
speaking with the police. Giving the police information
about —
[Court]: But that‘s not a sufficient link, in my view, . . .
Thus, the trial court allowed Richardson to say that Wheaton called him a
―snitch-ass bitch‖ that afternoon, but it excluded (1) evidence that Richardson
obtained drugs from Wheaton‘s brother the morning of the stabbing; (2) evidence
that, months before the stabbing, Richardson spoke to police about drug sales from
apartment 203 and that police executed a search warrant there; and (3) testimony
by Richardson that he believed that Wheaton knew that he actually talked to the
police.
III.
The trial court excluded this evidence (the ―snitch‖ evidence) as irrelevant.
A trial court has broad discretion to make evidentiary rulings because of its
13
familiarity with the details of the case and expertise in evidentiary matters, and we
review that ruling for abuse of discretion. (Markus) Johnson v. United States, 960
A.2d 281, 294 (D.C. 2008). When we review for abuse of discretion, we apply a
five-part test in which we consider: ―(1) whether the decision at issue was
committed to the trial court‘s discretion; (2) whether the trial court recognized that
it had discretion and whether it purported to exercise it; (3) whether the record
reveals sufficient facts upon which the trial court‘s determination was based . . . ;
(4) whether the trial court . . . failed to consider a relevant factor [or] relied upon
an improper factor, and whether the reasons given reasonably support the
conclusion; and (5) whether the error, if any, was harmless.‖ Dawkins v. United
States, 41 A.3d 1265, 1270 (D.C. 2012) (internal quotation marks omitted)
(quoting Johnson, 960 A.2d at 295).
Relevant evidence is evidence that ―tend[s] to make the existence or
nonexistence of a fact more or less probable than would be the case without that
evidence.‖ In re L.C., 92 A.3d 290, 297 & n.21 (D.C. 2014) (internal quotation
marks, brackets, and citation omitted); accord Campos-Alvarez v. United States, 16
A.3d 954, 959-60 (D.C. 2011). The trial court enjoys particularly broad discretion
in determining the relevance of a piece of evidence because the inquiry is fact-
specific and proceeds under a flexible standard. United States v. Mosby, 495 A.2d
14
304, 305 (D.C. 1985) (citing United States v. Kearney, 420 F.2d 170, 171 n.1 (D.C.
Cir. 1969)).
Our general rule is to grant broad deference to the trial court‘s determination
of relevance, but we do not regard relevance as a particularly high bar for the
proponent of the evidence to clear, see Street v. United States, 602 A.2d 141, 143
(D.C. 1992), and we are more searching in our review of a ruling that a piece of
evidence is irrelevant if the appellant makes a showing that it was central to his or
her defense. Riddick v. United States, 995 A.2d 212, 216 (D.C. 2010) (―An
evidentiary ruling . . . is a highly discretionary ruling that will be upset on appeal
only upon a showing of grave abuse. But such discretion does not extend to the
exclusion of crucial relevant evidence establishing a valid defense.‖ (quoting Price
v. United States, 697 A.2d 808, 818 (D.C. 1997) (internal quotation marks and
citations omitted))).
It is undisputed that the trial court recognized and exercised its discretion.
The trial court granted the government‘s specific requests to exclude Richardson‘s
testimony that he acquired drugs from a member of Wheaton‘s family earlier that
day, and that police had executed a search warrant at apartment 203 in the fall of
2008. After granting those requests, the court extended its ruling to exclude
15
Richardson from testifying that he informed police about drug sales from
apartment 203. The trial court explained that evidence that Richardson informed
on Wheaton cannot bridge the gap to establish, or even support, any factual
conclusion about what Wheaton actually knew, and that absent any additional
independent evidence about what Wheaton actually knew or believed,
Richardson‘s speculation about what he believed would be deemed by the court to
be irrelevant.
We next consider whether the trial court‘s ruling was based on a sufficient
factual foundation in the record, and whether the trial court considered every
proper factor and no improper factors, and whether the court‘s reasoning actually
supports its ruling. We conclude that the trial court required Richardson to prove
too much. The trial court said that the ―snitch‖ evidence could not bridge the gap
between what Richardson believed about what Wheaton thought and what
Wheaton actually thought. However, in order to raise self-defense in this case,
Richardson did not have to show that his beliefs underlying his self-defense claim
were true, only that they were reasonable and honestly held. Swann v. United
States, 648 A.2d 928, 930 (D.C. 1994).
16
As this court has observed, the standards for making a self-defense claim in
a homicide case are exacting: Richardson was entitled to an acquittal on that basis
only if the jury concluded (1) that he honestly believed that, when he stabbed
Wheaton, he was in imminent danger of serious bodily harm or death, and that he
had to use lethal force to save himself from that harm; and (2) that both beliefs
were objectively reasonable. Id. (citing cases and the Criminal Jury Instructions
for the District of Columbia, Nos. 5.12, 5.13 (4th ed. 1993)).11 Furthermore, the
first aggressor in a conflict cannot claim self-defense. Martin v. United States, 452
A.2d 360, 363 (D.C. 1982). In excluding the ―snitch‖ evidence for irrelevance, the
trial court implicitly concluded that the proffered evidence was not relevant to any
part of Richardson‘s self-defense claim.
11
Once the defendant has established sufficient evidence to justify giving
the jury a self-defense instruction, the burden shifts to the government to disprove
beyond a reasonable doubt the defendant‘s self-defense claim by showing that
these conditions are not met. See Comber v. United States, 584 A.2d 26, 41 & n.17
(D.C. 1990). As this court has explained, see id. at 41, self-defense claims fall into
two categories: ―perfect‖ and ―imperfect.‖ To make out a ―perfect‖ self-defense
claim, the defendant‘s beliefs that that lethal force was required to prevent
imminent death or serious bodily harm must be objectively reasonable. If they are
objectively unreasonable but honestly held, then the claim is ―imperfect.‖ Here,
because Richardson is facing a voluntary manslaughter charge, he must make out a
―perfect‖ self-defense claim to be entitled to an acquittal. See generally id. at 37-
40 (explaining the two types of self-defense claims and their interaction with the
various types of homicide charges).
17
A person‘s right of self-defense, and especially the degree of force the
victim is permitted to use to prevent bodily harm, is premised substantially on the
victim‘s own reasonable perceptions of what is happening. Fersner v. United
States, 482 A.2d 387, 391 (D.C. 1984); see also Johnson, 960 A.2d at 297. The
court‘s self-defense instruction put at issue Richardson‘s beliefs about what was
happening and the objective reasonableness of these beliefs.
Here the trial court concluded, in effect, that the ―snitch‖ evidence was not
relevant to what Wheaton actually believed. However, it is Richardson‘s beliefs,
rather than Wheaton‘s, and the objective reasonableness of those beliefs, that are at
issue in his self-defense claim; the trial court‘s failure to consider this factor was
error.
The ―snitch‖ evidence was relevant to Richardson‘s self-defense claim in
several ways. First, Richardson said he believed that people who become known
as ―snitches‖ in the community face repercussions, and that he therefore tried to
hide his dealings with the police. He was reluctant to meet Sergeant Washington
in person, because he feared that it would get ―leaked‖ to the community, and
―once you give information up, somehow, some way people find out that you‘re
giving information up.‖ Richardson gave police specific information about
18
Wheaton, and the police subsequently searched Wheaton‘s apartment and arrested
at least one family member. Because Richardson indicated that he believed that
people would somehow learn what he did, the jury could find that Richardson
honestly believed that Wheaton knew what he had done, and that he therefore
feared ―repercussions‖ from Wheaton, in the form of serious bodily harm or death,
and that the lethal force he actually used was necessary to prevent that harm.
Second, the ―snitch‖ evidence is relevant to Richardson‘s credibility, in that
it supports and explains Richardson‘s testimony that Wheaton called him a ―snitch-
ass bitch‖ when they fought outside. A jury that heard the other ―snitch‖ evidence
might be more inclined to credit that piece of Richardson‘s testimony, which might
otherwise appear to be an isolated and perhaps not credible attempt on
Richardson‘s part to fabricate a motive and impute it to the deceased Wheaton,
who is not in a position to contradict his testimony. The fact that Richardson
actually had talked to the police about Wheaton could be viewed as explaining to
the jury why Wheaton might indeed have made that remark.
The ―snitch‖ evidence is also relevant to the objective reasonableness of
Richardson‘s beliefs. First, it provides context for Wheaton‘s ―snitch-ass bitch‖
remark that makes that remark seem more ominous and threatening. Even if the
19
jury credited Richardson‘s statement that Wheaton called him a ―snitch-ass bitch‖
that afternoon, the jury might find it speculative to conclude from that evidence
alone that Richardson reasonably believed that Wheaton thought that Richardson
had spoken to the police and had given them information about Wheaton and his
family. The other ―snitch‖ evidence gives the jury at least a tentative basis from
which to draw that inference and a context that makes it more plausible. It also ties
in with Richardson‘s testimony that he felt ―something hard‖ hit his back when he
and Wheaton were in the hallway. The snitch evidence is relevant to what
Richardson believed was happening in that moment. Although the objective
reasonableness of Richardson‘s beliefs is a jury question, the factual backgrounds
of some of our cases demonstrate that the consequences of being perceived as a
―snitch‖ can be serious indeed. See, e.g., Winfield v. United States, 676 A.2d 1, 3
(D.C. 1996) (en banc) (victim survived being abducted, stabbed, shot, and left for
dead in the woods only to be fatally shot on the street weeks later because she co-
operated with the government in its investigation of an armed robbery).
For the foregoing reasons, we conclude that the trial court failed to take into
account certain factors that it should have considered in deciding whether the
20
―snitch‖ evidence was relevant. 12 Its ruling was therefore an erroneous exercise of
discretion.
IV.
Because the court erroneously exercised its discretion in excluding the
―snitch‖ evidence described above, we consider whether the error was harmless—
the fifth part of the five part test we apply in order to determine whether the court
abused its discretion. The government urges that we apply harmless error review
and affirm if ―we can say, ‗with fair assurance, after pondering all that happened
and without stripping the erroneous action from the whole, that the judgment was
not substantially swayed by the error.‘‖ Clark v. United States, 639 A.2d 76, 84
(D.C. 1996) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946))
(internal alterations omitted). Richardson argues that we should instead apply the
more stringent constitutional harmless error test of Chapman v. California, and
affirm only if we are convinced beyond a reasonable doubt that the error was
12
We have recognized that the victim‘s beliefs are also relevant to a self-
defense claim. See, e.g., Riddick, 995 A.2d at 217 (―[W]here the defendant in a
murder case admits killing the victim but has asserted a complete defense such as
accident or self-defense, the victim‘s mind is of particular concern to the jury.‖
(citing (David) Clark v. United States, 412 A.2d 21, 25 (D.C. 1980)); Hairston v.
United States, 500 A.2d 994, 997-98 (D.C. 1985); Hill v. United States, 600 A.2d
58, 61 n. 3 (D.C. 1991)).
21
harmless. Clark, 639 A.2d at 81 (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). Review of the error under the Chapman standard is appropriate if the
exclusion of evidence prevented Richardson from presenting a complete defense.
We conclude that under the circumstances reversal is required under either
Kotteakos or Chapman. As we will explain, we reach that conclusion by applying
the test for reversible error set forth in Heath v. United States, 26 A.3d 266 (D.C.
2011).
Defendants have a constitutional right to present a complete defense. See
Crane v. Kentucky, 476 U.S. 683, 690 (1986). Our interpretation and application
of the rules governing admissibility of evidence must therefore accommodate that
right. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (―[W]here
constitutional rights directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the ends of justice.‖).
While this principle applies to our interpretation of the rules governing relevance,
those rules do not mutate to accommodate theories of defense. However, even
where a defendant‘s constitutional right to present a complete defense is not at
stake, ―[i]t is well settled that if the evidence offered conduces in any reasonable
degree to establish the probability or improbability of the fact in controversy, it
should go to the jury. It would be a narrow rule, and not conducive to the ends of
22
justice, to exclude it on the ground that it did not afford full proof of the non-
existence of the disputed fact.‖ Home Ins. Co. v. Weide, 78 U.S. (11 Wall.) 438,
440 (1870).
Over the past two decades our case law has refined the contours of the
concept of the complete defense that a defendant has a right to present. Defendants
do not have an unfettered right to present any evidence whatsoever. See, e.g.,
Roundtree v. United States, 581 A.2d 315, 327 (D.C. 1990) (exclusion of evidence
about the appearance of sexual assault victim‘s genitals did not prevent defendant
from presenting a complete defense when defendant could not articulate a
legitimate basis for its admission). Rather, defendants have a right to present
―crucial relevant evidence establishing a valid defense.‖ Price v. United States,
697 A.2d 808, 813 (D.C. 1997) (internal quotation marks omitted). Not all
relevant evidence meets this bar. For instance, in Riddick, 995 A.2d at 216, the
trial court excluded the victim‘s handwritten note revealing her distress that
appellant was ―pulling away . . . more and more.‖ The defendant wanted to use the
note to establish that the victim‘s distress could have led her to react aggressively
toward him, but he was able to present other more persuasive evidence of the
victim‘s anger and jealousy toward him in the months before her death. Id. at 220.
In Clark v. United States, 639 A.2d 76, 81 (D.C. 1993), the trial court excluded
23
from evidence a photo array from which a witness identified appellant. The
defendant wanted to use the photo array to undermine the government‘s assertion
that he reason the witness was hesitant about her identification of the defendant
was that the photos in the array looked so similar. Id. at 82. We affirmed in both
Riddick and Clark, having concluded that neither exclusion prevented the
defendant from presenting a complete defense because the defendant had ample
opportunity to present other evidence supporting those defenses. Id.
Generally, our inquiry into whether an exclusion of evidence prevented a
defendant from presenting a complete defense is highly fact-specific. We have
found, for instance, that exclusions of relevant evidence have constitutional
implications when they limit the defendant‘s ability to explain a witness‘s potential
biases to the jury. See, e.g., Scull v. United States, 564 A.2d 1161, 1166 (D.C.
1989) (limits imposed on appellant‘s cross examination prevented appellant from
presenting complete defense when ―there was a realistic chance that the proposed
cross-examination had an impact on the outcome of the trial [because] it might
have led the jury to doubt dispositive testimony against appellant . . . .‖); Bassil v.
United States, 517 A.2d 714, 716 (D.C. 1986) (exclusion of evidence about
witness‘s reputation for untruthfulness prevented appellant from presenting
complete defense). The right to present a complete defense also entitles the
24
defendant to present fully its theory of the case. See, e.g., McDonald v. United
States, 904 A.2d 377, 382 (D.C. 2006) (exclusion of evidence of extent of
appellant‘s injuries sustained during arrest deprived appellant of right to present
complete defense where defendant‘s theory was that police fabricated charges
against him to cover up their use of excessive force); Howard v. United States, 656
A.2d 1106, 1118 (D.C. 1995) (exclusion of testimony from appellant and another
witness that victim had previously threatened appellant with a gun and fired a shot
at appellant deprived appellant of ―meaningful opportunity‖ to present evidence on
provocation defense and therefore violated defendant‘s right to present complete
defense).
Until the time this court issued its opinion in Heath, 26 A.3d 266, there
remained the question how the court should determine whether excluded evidence
was so critical to the defense that its exclusion violated a defendant‘s constitutional
right to present a defense. In Heath, we adopted a modified version of an objective
materiality test that the United States Court of Appeals for the Second Circuit,
borrowing from the materiality standard set forth in United States v. Agurs, 427
U.S. 97 (1976), had adopted in Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996). In
Heath, we wrote,
25
[W]hether an erroneous exclusion of defense evidence
violates the defendant‘s constitutional right to present a
defense depends upon whether there exists a reasonable
probability that the omitted evidence, evaluated in the
context of the entire record, would have led the jury to
entertain a reasonable doubt that did not otherwise exist.
Heath, 26 A.3d at 281 (emphasis in original to indicate the difference between this
rule and the Second Circuit‘s rule articulated in Agard v. Portuondo, 117 F.3d 696,
705 (2d Cir. 1997), rev’d on other grounds, 529 U.S. 61 (2000)).13
In Heath, we observed that we reach the same result under Kotteakos or
Chapman whenever exclusion of evidence reaches reversible error of constitutional
magnitude. Heath, 26 A.3d at 281.14 The evidence that a defendant is
constitutionally entitled to present is precisely that evidence that, in the context of
the entire record, stands a reasonable chance of turning the trial. And where that is
the case, when we turn to harmlessness review of either stripe, we will be unable to
say with fair assurance that the exclusion of such evidence did not substantially
13
Because Heath was decided on July 21, 2011, several months after
Richardson‘s trial, the trial judge in this case did not have the benefit of this
decision when trying this case.
14
We observe that ―commission of a constitutional error at trial alone does
not entitle a defendant to automatic reversal.‖ Washington v. Recuenco, 548 U.S.
218 (2006) (citing Neder v. United States, 527 U.S. 1, 8 (1999)).
26
sway the outcome, and or that its exclusion was harmless beyond a reasonable
doubt.
We apply the Heath test to determine whether the trial court‘s exclusion of
the ―snitch‖ evidence restricted Richardson from presenting a complete defense.
Richardson‘s defense was, in part, that he feared that Wheaton knew that he had
given police information about drug sales from apartment 203, and that that is why
Wheaton attacked him on the porch, and also why, when the fight continued inside
the apartment building, he reasonably believed that Wheaton might kill or inflict
serious bodily harm on him, and that lethal force was required to prevent that. The
court prevented Richardson from presenting certain evidence that would have
helped him explain to the jury why these fears were reasonable. Although
Richardson was allowed to testify that Wheaton called him a ―snitch-ass bitch‖
when they fought outside their apartment complex, this single piece of evidence
did not go far in explaining why Richardson might reasonably have feared that
Wheaton knew that he had given police information about Wheaton‘s drug sales.
See Howard, 656 A.2d at 1118 (appellant‘s single statement that the victim had
shot at him in the past was ―so cryptic [and] so devoid of details‖ that appellant
was deprived of a meaningful opportunity to present a provocation defense). That
isolated piece of testimony would not have given the jury adequate reason to
27
believe that Richardson feared that Wheaton knew what he had done and sought to
retaliate, and no context from which to consider whether that fear was a reasonable
one.15 The excluded evidence also has the potential to make Richardson‘s
testimony that Wheaton called him a ―snitch-ass bitch‖ more credible.
Furthermore, the government‘s evidence against Richardson was not
overwhelming, and this matters when we consider what effect the additional
excluded evidence could have had on the outcome. There was already evidence in
the record that Wheaton hit Richardson with a crowbar, and the ―snitch‖ evidence
could have led the jury to re-evaluate the relevance and credibility of that
testimony. The excluded evidence would have provided the jury with additional
reasons to credit parts of Richardson‘s testimony and that of other defense
witnesses, and it would have provided evidence that Richardson honestly and
reasonably feared imminent death or serious bodily harm at Wheaton‘s hands, and
that he honestly and reasonably believed that lethal force was necessary to prevent
15
We note that appellant‘s argument that the ―snitch‖ evidence was crucial
to the defense is undercut somewhat by the fact that at the first trial defense
counsel did not mention the admitted evidence about snitching in his closing
argument, yet won acquittal on the murder charge. We also note, however, that in
the first trial, appellant was able to assert a defense of imperfect self-defense to the
charges of first-degree and second-degree murder, but not to the lesser-included
offense of manslaughter. To succeed with a self-defense theory as to manslaughter
appellant had to make a showing that his fear of death or serious bodily harm was
objectively reasonable, and the ―snitch‖ evidence could have helped establish this.
28
that harm. We therefore conclude that there is a reasonable probability that the
omitted evidence, evaluated in the context of the entire record, would have led the
jury to entertain a reasonable doubt that did not otherwise exist, and that the
exclusion therefore prevented Richardson from presenting a complete defense in
violation of his constitutional rights. See Heath, 26 A.3d at 281. For these same
reasons, we are not convinced that the trial court‘s erroneous exercise of discretion
in excluding the ―snitch‖ evidence was harmless beyond a reasonable doubt.
Reversal of these convictions is therefore required.16
Accordingly, for the foregoing reasons we reverse Richardson‘s convictions
for voluntary manslaughter while armed and carrying a dangerous weapon and
remand the case to the trial court for further proceedings.
16
As Richardson‘s convictions are being reversed and the case will most
likely be tried again, the trial court will be called upon again to make the highly
discretionary rulings concerning the evidence of past crimes and other bad acts
attributed to Richardson. The rulings will be made on the basis of the record at
that trial. While we will comment that the rulings that admitted evidence of
Richardson‘s acts on the day of the homicide appear well within the court‘s
discretion, we remark that rulings on appellant‘s use of PCP on the days and
months before the homicide, and his behavior after such use, may present more
difficult questions. Accordingly, the trial court should state the basis of its rulings,
applying the principles regarding such matters in Drew v. United States, 331 F.2d
85 (D.C. Cir. 1964); (William) Johnson v. United States, 683 A.2d 1087 (D.C.
1996) (en banc); United States v. Morton, 50 A.3d 476 (D.C. 2012); Harrison v.
United States, 30 A.3d 169 (D.C. 2011), and other cases.
29
So ordered.