Wint v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-116
DARON D. WINT, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(2015-CF1-7047)
(Hon. Juliet McKenna, Trial Judge)
(Argued March 30, 2022 Decided December 15, 2022)
Lee R. Goebes, Public Defender Service, with whom Samia Fam and Stefanie
Schneider, Public Defender Service, were on the brief, for appellant.
Nicholas P. Coleman, Assistant United States Attorney, with whom Channing
D. Phillips, Acting United States Attorney, and Elizabeth Trosman, Chrisellen R.
Kolb, and Laura Bach, Assistant United States Attorneys, were on the brief, for
appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, EASTERLY, Associate Judge, and
FISHER, Senior Judge.
Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.
2
Opinion by Associate Judge EASTERLY, concurring in part and dissenting in
part, at page 30.
BLACKBURNE-RIGSBY, Chief Judge: This appeal stems from a brutal
quadruple homicide, in which three family members and their housekeeper were
kidnapped, held hostage over the course of two days, extorted for cash, and tortured.
Firefighters ultimately found part of the family’s home engulfed in flames and all
four victims’ bodies burned.
In 2016, appellant was indicted on four counts of first-degree murder while
armed (D.C. Code §§ 22-2101, -4502), and related charges. 1 At trial, appellant
presented a third-party perpetrator defense, arguing that his two brothers, Darrell
Wint and Steffon Wint, were the actual perpetrators. During its rebuttal case, the
government introduced evidence that Darrell Wint was outside the District of
Columbia for part of the day when the crimes occurred. Appellant moved for
surrebuttal, proffering evidence that would purportedly contradict Darrell’s alleged
whereabouts that day. The trial court denied the motion for surrebuttal, and the jury
1
Appellant was also indicted on charges of first-degree burglary (D.C. Code
§ 22-801(a)); kidnapping (D.C. Code § 22-2001); aggravated kidnapping (D.C. Code
§§ 22-2001, -3611); extortion (D.C. Code § 22-3251); aggravated first-degree felony
murder while armed (D.C. Code §§ 22-2101, -4502); arson (D.C. Code § 22-301);
and first-degree theft (D.C. Code §§ 22-3211, -3212).
3
convicted appellant of all counts. Appellant was sentenced to four terms of life
imprisonment without release.
On appeal, appellant argues that the trial court committed reversible error
when it denied his motion for surrebuttal. We affirm appellant’s premeditated
murder convictions for the deaths of Savvas Savopoulous, Amy Savopolous,
Veralicia Figueroa, and Philip Savopolous. As we discuss, while the trial court
should have allowed appellant to present surrebuttal evidence, the weight of the
other overwhelming evidence against appellant rendered any error by the trial court
in denying surrebuttal harmless. Finally, we remand this case to the trial court so
that appellant’s felony-murder convictions may be merged into his premeditated
murder convictions, with any decisions on resentencing left to the trial court. In all
other respects, the judgment is affirmed.
I. Background
Early in the afternoon of May 14, 2015, first responders arrived at a house in
a neighborhood in the Northwest quadrant of D.C. after receiving reports of a house
fire. When the firefighters arrived, they discovered that one of the bedrooms on the
second floor was engulfed in flames, and they searched for victims. In a separate
4
bedroom, firefighters found the bodies of Amy and Savvas Savopoulos, the
homeowners, and Vera Figueroa, their housekeeper. In another room, firefighters
found the body of Philip Savopoulos, Amy and Savvas’s ten-year-old son.
When the smoke cleared, one of the firefighters described seeing a
“bloodbath” because blood covered the floor of one of the bedrooms and a bloody
baseball bat was on the bed. A medical examiner testified that all four victims were
stabbed, and the three adults had been beaten, restrained, and doused with gasoline.
A. The Government’s Case-in-Chief
Police found appellant’s DNA at the Savopoulos home. A Domino’s pizza
box was found in the bedroom with the adult victims, and appellant’s DNA was on
the pizza crust. Appellant’s partial genetic profile was on the back of a knife that
was propping open a window in the basement. Two hairs matching appellant’s DNA
profile were recovered from a hard hat in the garage and a bedroom. 2
Appellant was aware of the Savopolous family. Savvas was the owner of
2
American Iron Works, where appellant worked as a welder from 2003 until 2005.
5
The government’s theory was that appellant kidnapped, restrained, and
extorted the decedents for cash before killing them and setting the house on fire. The
government contended that appellant broke into the Savopoulos home sometime
between 11:29 a.m. and 3:14 p.m. on May 13, 2015, and cut their home phone lines.
During that timeframe, Philip was home with the housekeeper, Mrs. Figueroa, while
his mother Amy was out walking, so the government posited that appellant first
restrained the child and the housekeeper. Then, when Amy came home, he was able
to restrain her as well, followed by the restraint of the father, Savvas, after he
returned home from work. 3 While they were held captive, the victims were
subjected to various forms of violence, including being beaten, stabbed, and
asphyxiated, doused with gasoline, and their bodies were burned. The government
argued that appellant forced Savvas to obtain $40,000 in cash from his company’s
bank account and have it delivered to the house. After the cash was delivered the
following day, all in $100 bills, the government contended that appellant burned the
house to destroy the evidence.
The government presented the following additional evidence that appellant
had been at the Savopoulos home and was exhibiting consciousness of guilt. At
3
The idea that appellant restrained each hostage one at a time, at different
points in the day, was important to the government’s case because the defense
contended throughout trial that this could not have been a “one man job.”
6
about 12:10 p.m. on May 14, two people visiting a nearby house saw appellant walk
into the Savopouloses’ garage. Later that afternoon, around 5:00 p.m., two different
people saw appellant pacing in a parking lot shortly before firefighters recovered the
Savopouloses’ Porsche burning in the woods nearby. Around 6:00 p.m. that same
day, appellant began using his iPhone to search for information about how to remove
its iCloud feature and whether it had a memory card. Appellant also called his
girlfriend and asked if cell phones could be traced. That night, appellant used his
phone to search for information on how to beat a lie detector test and looked up a
fire at Woodland Drive (the Savopouloses’ street). The following day, on May 15,
appellant went to the gym with his friend and flashed $1,200 in cash, all $100 bills.
Later that evening, appellant called the same friend to ask for help burning his
minivan, which the friend declined. Shortly thereafter, firefighters found appellant’s
minivan on fire.
Appellant’s girlfriend, Vanessa Hayles, testified that on May 16, appellant
went to visit her in New York City, where he continued to pay for items using $100
bills. He also continued to search for information about the murders on his cell
phone and searched for “hideout cities for fugitives” and extradition law. While in
New York, appellant and Hayles saw a news report about the Savopoulos murders
7
that included appellant’s photograph. The next day, appellant chartered a taxi back
to D.C. and told Hayles that he was going to self-surrender.
Later that day, appellant’s brother, Darrell, contacted a friend, Chelsea Nunez,
and asked her to get money orders for a “friend” who needed to hire a lawyer. Nunez
picked Darrell up in her car, and he gave her $2,800 in $100 bills to purchase the
money orders. Afterwards, they picked appellant up from a hotel just outside of
D.C. Appellant got into the car with Nunez, but Darrell exited Nunez’s car and got
into a different car, and told Nunez to follow him. As both cars were driving, law
enforcement stopped both vehicles and arrested appellant. When police searched
the two cars, they found $7,300 in cash in the car Darrell was riding in, but no cash
in the car appellant was in.
The government presented cell-site data for Darrell’s primary cell phone
showing that it did not connect with any cell towers near the Savopoulos house on
May 13 or 14. Steffon Wint testified that he had no memory of where he was on
May 13 or 14. The government introduced time sheets from May 13 showing that
Steffon worked from 6:00 a.m. to 4:30 p.m., and from May 14 showing that Steffon
worked from 6:00 a.m. to midnight. The only signatures on the time sheets were
Steffon’s, suggesting that his supervisor did not certify the hours worked.
8
B. The Defense
Appellant presented a third-party perpetrator defense, arguing that his
brothers, Darrell and Steffon, were the actual perpetrators. Appellant testified that
Darrell brought him to the Savopoulos home on May 14 (the day after the
kidnappings) under the premise that Darrell and Steffon needed help completing a
construction project. Appellant testified that he went inside the home, but once he
realized that his brothers were burglarizing it, he left, and did not realize the extent
of their plan to murder anyone.
Appellant responded to much of the evidence against him. In appellant’s
version of events, he left his house in the early morning hours on May 13, to meet
up with Darrell, who asked him for help with a painting and drywall project that he
was working on with Steffon. Appellant testified that he met Darrell around 6:00
a.m. near PCM Services, a construction company in Beltsville, Maryland, but Darrell
had changed the plan. Darrell told appellant that he and Steffon no longer needed
appellant’s help, but would pay to borrow appellant’s minivan. Appellant agreed,
and asked Darrell to drop him off at his friend Ed’s house and pick him up in the
minivan later. Appellant testified that he did not sleep at home the night of May 13
because he spent the afternoon at Ed’s house and fell asleep there after drinking too
9
much alcohol. Appellant testified that Darrell returned the next morning, May 14,
to pick appellant up, but he was driving a Porsche instead of appellant’s minivan.
Darrell told appellant that he and Steffon now needed appellant’s help completing
the drywall and painting job, and drove him to the job site, which turned out to be
the Savopouloses’ house. Appellant went inside with Darrell and sat in the dining
room while Darrell went upstairs. Darrell then came downstairs with a pizza box,
and appellant took a bite before putting the crust back in the box because it was cold.
Appellant then realized he left his phone in the Porsche, and Darrell told him to go
out and get it, but to come back in through the garage. When appellant got back
inside, Darrell gave him a hard-hat and construction vest and explained that they
were going to “unload” the house, which appellant understood to mean rob it.
Appellant testified that he told Darrell he wanted no part in the robbery, so he left
and tried to find a bus.
Later that evening, appellant saw reports of the house fire on the news and
recognized it as the house Darrell had taken him to earlier in the day. He explained
that he began looking up information about beating lie detectors so he could protect
his brother if the police contacted him. Appellant similarly explained that he looked
10
up information on extradition and asked for help burning his minivan because he
was afraid of being blamed for a crime he did not commit. 4
C. The Government’s Rebuttal
Darrell testified for the first time in the government’s rebuttal case. Darrell
denied playing any role in the murders. He recalled visiting his friend, Anthony
Anderson, at his home in Gaithersburg, Maryland, on a day in May before
appellant’s arrest, but he could not remember the exact date. Darrell testified that
he went to Gaithersburg to watch a music video Anderson had recently published on
the internet. Darrell also recalled that Anderson’s cousin and roommate, Ikia
Williams, was home that day. Darrell recalled that he stayed at Anderson and
Williams’ house for a couple of hours and then left to pick up his son from school.
The government sought to corroborate Darrell’s testimony by calling
Anderson, who testified that Darrell came to his house in Gaithersburg to watch a
music video called “Haters Hate,” which he had just produced and uploaded to
YouTube. Anderson could not recall how long Darrell stayed or what time he left.
4
Appellant did not admit to burning the minivan himself; he said he woke up
the next day and it was gone.
11
The government presented YouTube data showing that the “Haters Hate” video was
uploaded on May 13. The government did not present any evidence indicating what
time the video was uploaded.
D. The Proffered Surrebuttal and Trial Court’s Ruling
After the government’s rebuttal, the defense moved for surrebuttal to present
the testimony of Ikia Williams, who was originally on the government’s witness list.
Defense counsel informed the trial court that she had planned to introduce the
proffered surrebuttal evidence during her cross-examination of Williams. However,
the government decided not to call Williams after Anderson testified, so defense
counsel had no opportunity to examine Williams.
In the grand jury, Williams testified that she remembered Darrell coming over
one day in May around 11:00 a.m. to watch one of Anderson’s music videos.
Williams did not remember exactly which day in May it was, but testified that
Darrell texted her before coming over and then called her when he arrived:
Q: . . . [D]o you know what specific date that was in May?
A: No, I’m not quite sure.
12
Q: All right. Did he either text you or call you prior to coming to
your house?
A: He texted me.
Q: Darrell did?
A: Yes.
Q: And when he was outside of your house, did he text you or
call you; as best as you can recall?
A: I believe he called me and told me he was at the door.
…
Q: And why do you think he called you to let you know he was
at the door?
A: It could’ve been because I was upstairs, but – I mean, Anthony
was downstairs – but he usually does that. Like, if he’s at the
door, he’ll tell me. He won’t knock. He’ll just tell me he’s at the
door, and I’ll just open it.
Phone records, however, showed that Williams did not receive a call or text from
Darrell on May 13; the only communication between Darrell’s and Williams’ phones
in that general timeframe was on May 19. Defense counsel therefore believed that
Williams’ testimony, combined with the phone records, supported an inference that
Darrell was in Gaithersburg on May 19, not May 13.
Before the trial court, defense counsel argued that the proffered surrebuttal
concerned a “critical issue” that could impeach Darrell’s alibi. As defense counsel
13
stated: “I mean, I dare to say that this is probably the most critical issue in the trial.
If the jury believes that Darrell Wint was at the home of Ikia Williams and Anthony
Anderson in those morning hours [of May 13], instead of where Daron Wint says he
was, we lose.”
The trial court rejected the defense’s request for surrebuttal, stating that the
proffered testimony: (1) did not pertain to a new matter first raised in the
government’s rebuttal, and (2) would not have rebutted Anderson’s testimony in the
government’s rebuttal case. This appeal followed.
II. Discussion
Appellant argues that the trial court committed reversible error in denying his
request for surrebuttal. Specifically, appellant contends that the government’s
presentation of Darrell’s “Gaithersburg alibi” was a new evidentiary matter first
raised by the government in its rebuttal case, and that he had a right to rebut that
evidence with Williams’ testimony and cell phone records. In light of the weight of
the overwhelming evidence against appellant, the trial court’s error in not allowing
surrebuttal was harmless.
14
A. Surrebuttal
This court has not had many opportunities to discuss surrebuttal. Other courts
have explained that “[i]n a criminal case, the purpose of surrebuttal evidence is to
give the defendant an opportunity to rebut or respond to the State’s rebuttal
evidence.” State v. Ousley, 419 S.W.3d 65, 70 (Mo. 2013) (en banc). “Most
jurisdictions allow surrebuttal evidence only to meet new matter[s] introduced by
the prosecution on rebuttal.” People v. Brockman, 699 P.2d 1339, 1342 (Colo.
1985). The reason for this limitation is that “[p]rejudice occurs only if the
prosecution witness goes beyond rebuttal and injects fresh issues on which the
defendant is denied the right to present evidence.” United States v. Sadler, 488 F.2d
434, 435 (5th Cir. 1974).
Although our case law on surrebuttal is limited, this court has held that “where
new matters are introduced in rebuttal, . . . the [defendant] has a right to surrebuttal.”
Gregory v. United States, 393 A.2d 132, 137 (D.C. 1978) (emphasis in original)
(internal citations omitted); see also Chaabi v. United States, 544 A.2d 1247, 1250
n.6 (D.C. 1988). The right to present surrebuttal evidence is not unqualified,
however, because “[t]he trial court ‘has a duty to exclude confusing and distracting
evidence on collateral issues.’” Cannon v. United States, 838 A.2d 293, 299 (D.C.
15
2003), as amended (Mar. 2, 2004) (quoting Carr v. United States, 585 A.2d 158, 163
(D.C. 1991)).
Appellant focuses heavily on our holding in Gregory to argue that he was
entitled to surrebuttal as of right because the government raised a “new matter” in
its rebuttal. But because it has been so briefly stated, our case law may be
misunderstood. Relying on two cases from outside of this jurisdiction, appellant
asserts that he had a right to surrebuttal because the government presented new
evidence on rebuttal that the defense would not have had reason to address
previously, either as a matter of logic or evidentiary relevance. See United States v.
Murray, 736 F.3d 652, 658-59 (2d Cir. 2013); Edge v. State, 393 So. 2d 1337, 1341
(Miss. 1981).
We have never established a per se rule that any new fact introduced in
rebuttal warrants surrebuttal as a matter of right. On this point, we pay particular
attention to the conclusion in Gregory that no surrebuttal was required because
“there were no material issues injected for the first time in rebuttal.” Gregory, 393
A.2d at 137 (emphasis added). For example, if the government in this case
introduced new evidence on rebuttal that appellant had a pet dog, we doubt that the
trial court was required to consider evidence from the defense disproving that he had
16
a dog. Similarly, if the government introduced evidence on rebuttal that appellant’s
minivan was a Toyota, the trial court would not have been required to allow appellant
to present surrebuttal evidence that his minivan was a Honda. Thus, it is not enough
simply to say that evidence is “new;” further analysis is required.
The two cases relied on by appellant further support this point. In Murray,
736 F.3d at 659, the Second Circuit’s conclusion that the trial court erred by denying
surrebuttal was based, in part, on the fact that the “evidence put forth by the
government on rebuttal could easily have influenced the jury significantly to reject”
appellant’s version of events. (Indeed, Murray applied the prevailing federal test
that we discuss in more detail below.) Likewise, in Edge, 393 So. 2d at 1341, the
Mississippi Supreme Court’s conclusion that surrebuttal should have been allowed
was due to the fact that the government’s rebuttal evidence “tore the heart out” of a
“key part of the appellant’s evidence in support of his claim of justifiable homicide.”
In Gregory, 393 A.2d at 137, we did not need to analyze the proffered
surrebuttal because no “material issues” were injected for the first time in rebuttal,
though we noted that, in any case, if “appellant had been allowed to take the stand
again he would have been able to reiterate only what he had testified to previously.”
Id. In Bynum, we concluded that the trial court erred in denying a surrebuttal request
17
both because the government raised a “new matter” in rebuttal and because of the
“importance of that [surrebuttal] testimony to appellant’s defense.” Bynum v. United
States, 799 A.2d 1188, 1194 (D.C. 2002) (emphasis added). Importantly, in this
context, “the determination that evidence is relevant does not exhaust the trial
judge’s responsibility in deciding whether to admit it.” Winfield v. United States,
676 A.2d 1, 5 (D.C. 1996) (en banc). Rather, “the trial judge will have discretion to
exclude marginally relevant evidence” that might “distract the jury from the issue in
this case.” Id.Additionally, our holding in Gregory relied on Sadler, 488 F.2d at 435, in
which the Fifth Circuit Court of Appeals explained how a trial should proceed when
new matters are introduced on rebuttal:
By objection, defense counsel should call to the court’s
attention that a prosecution witness is going into new
material which, if admitted, raises questions of rebuttal by
the defense. If defense counsel makes no such objection,
but waits until the prosecution witness steps from the
stand, the court may properly require him to point out the
new matter covered and show how he intends to refute it.
The objective is efficiently to conclude a trial when each
side has had the opportunity to present his view of all
issues fairly raised.
Id. at 435. In sum, our case law suggests that “[a] decision whether to allow
surrebuttal generally lies within the discretion of the trial court. However, the court
18
should allow a defendant to introduce evidence on surrebuttal that tends to meet new
matter presented by the prosecution on rebuttal.” Brockman, 699 P.2d at 1342.
Several federal courts of appeals have adopted a two-part test to determine
whether a trial court should grant the defense’s request for surrebuttal. Under this
formulation, surrebuttal evidence is merited where (1) the government’s rebuttal
testimony raises a new issue, which broadens the scope of the government’s case,
and (2) the defense’s proffered surrebuttal testimony is not tangential, but capable
of discrediting the essence of the government’s rebuttal testimony. United States v.
Moody, 903 F.2d 321, 331 (5th Cir. 1990); Murray, 736 F.3d at 657; United States
v. Sorensen, 801 F.3d 1217, 1239 (10th Cir. 2015); United States v. Pon, 963 F.3d
1207, 1242-43 (11th Cir. 2020) (Martin, J., concurring in part). 5
5
Additionally, at least two other circuits have acknowledged the test with
some approval. See United States v. Burgess, 691 F.2d 1146, 1152 n.14 (4th Cir.
1982); United States v. Wilson, 134 F.3d 855, 867 (7th Cir. 1998). We have not
found a circuit that has explicitly disapproved of the two-part test.
19
This two-part test is consistent with our case law on surrebuttal. 6 As
explained, our case law suggests that examination both of the issue raised in rebuttal
and of the defendant’s proffered surrebuttal is proper. This two-part test preserves
a defendant’s right to respond to new matters presented by the government on
rebuttal, Gregory, 393 A.2d at 137, while also allowing the trial court to “exclude
confusing and distracting evidence on collateral issues.” Cannon, 838 A.2d at 299
(internal quotation marks and citation omitted). We therefore follow this framework
for our analysis of whether the trial court abused its discretion by denying appellant’s
request for surrebuttal.
6
The limitation that surrebuttal is only merited where the government’s
rebuttal evidence “broadens the scope” of its case may appear inconsistent with
Bynum, 799 A.2d at 1194. In Bynum, this court concluded that surrebuttal was
merited because a “new matter” was introduced on rebuttal, which “gutted the
defense,” but there was no indication that the government’s rebuttal broadened the
scope of its case. Cf. Moody, 903 F.2d at 331 (rebuttal evidence raised a new issue
that broadened the scope of the government’s case because rebuttal concerned events
charged in a separate indictment and expanded the government’s case into the realm
of bankruptcy fraud). However, both Bynum and Gregory suggest that it is proper
for the trial court to assess the materiality of the government’s new rebuttal evidence
before giving the defense an opportunity for surrebuttal. See Gregory, 393 A.2d at
137; Bynum, 799 A.2d at 1194.
20
1. Whether the government’s rebuttal testimony raised a new issue
We generally agree with appellant that the specific implication that Darrell
was in Gaithersburg on the morning of May 13, as opposed to the general issue of
Darrell’s whereabouts on May 13 and May 14, “did not arise until . . . rebuttal to
appellant’s testimony.” See Bynum, 799 A.2d at 1194. Additionally, appellant did
not have a meaningful opportunity earlier in the trial to rebut Darrell’s presence in
Gaithersburg on May 13. It would have made little sense for appellant, during his
defense case, to call a witness to testify about where Darrell was not on May 13.
Likewise, for appellant to introduce evidence that Darrell was in Gaithersburg on
May 19—several days after the murders took place—“would have done nothing to
advance his case or clarify any issue then relevant.” Murray, 736 F.3d at 658.
However, we understand the trial court’s resistance to call the government’s rebuttal
a “new issue,” since the defense asserted that Darrell was at the house, participating
in the burglary and murders, while the government maintained throughout the trial
that appellant acted alone, thereby implying that Darrell and Steffon Wint were not
in the vicinity of the crimes when they occurred.
Though we ultimately agree with appellant that the government introduced a
new issue on rebuttal, we disagree that surrebuttal was per se required, as of right,
21
on that basis alone. Instead, we must consider the second part of the test: whether
the proffered surrebutal was capable of discrediting the essence of the government’s
rebuttal testimony.
2. Whether the proffered surrebuttal was capable of discrediting the
essence of the government’s rebuttal testimony
Surrebuttal is merited when a new matter arises and when the defense’s
proffered surrebuttal testimony is not tangential, but rather is capable of discrediting
the essence of the government’s rebuttal testimony. E.g., Sorensen, 801 F.3d at
1239. The second part of this analysis properly allows the trial court to exercise its
discretion over the admissibility and scope of surrebuttal. See Cannon, 828 A.2d at
299. “Our review of the trial court’s decision in this regard is considerably
deferential because of its superior vantage point during the course of the trial.”
Shelton v. United States, 983 A.2d 979, 986 (D.C. 2009) (analyzing discretion in
admitting rebuttal evidence).
The government put forth rebuttal evidence to support the assertion that
Darrell was in Gaithersburg on May 13 and could not have participated in the crimes.
22
The government first called Darrell, who recalled visiting Anderson to watch a
music video that Anderson had recently made. Darrell also recalled seeing Williams
but could not remember the date of the visit. The government also called Anderson,
who testified that Darrell visited him to watch the “Haters Hate” video Anderson
had just created and uploaded to YouTube; however, Anderson also could not
remember the exact date but acknowledged that a time stamp showed that the video
was uploaded on May 13. Thus, the “essence” of the government’s rebuttal evidence
was that Darrell visited Anderson in Gaithersburg on May 13. See Murray, 736 F.3d
at 659.
In contradiction, Williams’ grand jury testimony implies that Darrell visited
on May 19. Williams testified that Darrell usually called or texted prior to coming
to Williams’ house, and she recalled that Darrell had texted her prior to coming to
her house. The phone records showed that Williams did not receive a call or text
from Darrell on May 13. Instead, phone records show communication between
Darrell and Williams on May 19. Thus, assuming that Williams would have testified
consistent with her grand jury testimony, her testimony was capable of discrediting
the government’s assertion that Darrell was in Gaithersburg on May 13.
23
The trial court concluded that Williams was testifying based on her memory
of what Darrell “usually” does, and was equivocal about whether Darrell called or
texted her the exact day he went to her house to watch music videos with Anderson.
Therefore, the trial court implicitly concluded that the proffered cell phone records
showing a lack of communication between Williams and Darrell on May 13 would
not squarely meet and call into question the government’s suggestion that Darrell
was in Gaithersburg on that date.
We disagree that Williams was too “equivocal” for her testimony to squarely
meet and question the Gaithersburg alibi. Williams did not remember the specific
date in May, but she stated, unequivocally, “[Darrell] texted me[,]” before coming
over to the house. Then, when Darrell was at the front door, she answered, less
certainly, “I believe he called me and told me he was at the door.” However, she
was clear that Darrell had texted before leaving for her house. The cell phone
records, showing only communication on May 19, supported appellant’s assertion
that Darrell was in Gaithersburg on May 19 instead—not May 13.
Williams’ testimony made it “less probable” that Darrell had visited
Gaithersburg on May 13. This evidence should have gone to the jury. See Jones v.
24
United States, 625 A.2d 281, 284 (D.C. 1993). To the extent that Williams’
testimony conflicted with the testimony of either Darrell or Anderson, both of whom
were also equivocal about the exact date of the visit, “it is the jury’s job . . . to
evaluate . . . credibility[.]” See Bynum, 799 A.2d at 1194.
Finally, appellant wanted to present evidence from one witness and the
relevant phone records from May 19. The surrebuttal therefore would not have been
too lengthy or distracting and would not have risked turning the proceedings into a
“trial-within-a-trial.” See Winfield, 676 A.2d at 5.
The proffered surrebuttal evidence did squarely meet and call into question
the government’s suggestion that Darrell was in Gaithersburg on the date of the
murders. “Although surrebuttal is indeed within the sound discretion of the trial
court, it should have been permitted under the circumstances presented here.”
Chaabi, 544 A.2d at 1249 (internal citation omitted). We conclude that the trial
court erred in denying appellant’s request to present surrebuttal evidence.
25
B. Harmless Error
We next review the trial court’s error to determine whether we must reverse.
First, we briefly address the proper standard of review. While both appellant and
the dissent maintain that a denial of a surrebuttal request is generally of constitutional
dimension, they cite no case law for that broad proposition. Moreover, as the dissent
acknowledges, appellant’s constitutional claim was not preserved. Thus, we would
apply a plain error test even if the error were of constitutional dimension, and
appellant would be unable to meet that demanding standard. But we disagree with
appellant’s contention that a constitutional error analysis applies.
Although the erroneous exclusion of evidence proffered by the defense—“the
type of problem we confront in the present case”—“may violate a defendant’s
constitutional right to present a defense[,] [n]ot every such error will do so.” Heath
v. United States, 26 A.3d 266, 276 (D.C. 2011) (internal quotation marks omitted).
see Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001) (“Erroneous evidentiary
rulings rarely rise to the level of harm to this fundamental constitutional right to
present a meaningful defense.”) (internal quotation marks omitted). “‘Only when
the error deprives a defendant of a fair trial does it amount to a constitutional
26
violation.’” Heath, 26 A.3d at 276 (quoting United States v. Lathern, 488 F.3d 1043,
1076 (D.C. Cir. 2007)).
Under the non-constitutional error standard, this court would need to “say
with fair assurance that any such presumed trial court error did not substantially
influence the jury’s determination.” Roundtree v. United States, 581 A.2d 315, 328-
29 (D.C. 1990) (citing Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Cf.
Bynum, 799 A.2d at 1194 (reversing because we could not say “with fair assurance”
that the verdict was not influenced by trial court’s error in denying appellant’s
request to present witness in surrebuttal). We conclude that there was no reversible
error.
The proffered surrebuttal evidence certainly undercut Darrell’s alibi
somewhat, but it did not affect the weight of the other evidence against appellant.
Genetic evidence implicating appellant was found in several locations in the
Savopolous home: on the pizza delivered to the home on the night the victims were
held captive, on the knife propping open the basement window, and on two hairs
found in the garage and in a bedroom. Appellant was seen entering the
Savopolouses’ garage just an hour before the house was set on fire. Appellant was
27
also seen pacing in a parking lot near where the Savopouloses’ Porsche was found
burning. In the week after the murders, appellant displayed large sums of cash in
$100 bills. Appellant also searched online for information on beating lie detector
tests and restoring cell phones to factory settings. He also searched for news stories
on the fire at the Savopolous house.
Additionally, Darrell’s trip to Gaithersburg only provided an alibi for a short
period of time in the morning or early afternoon of May 13. The government’s
evidence indicated that the perpetrator of the crime broke into the Savopoulos home
sometime before 3:14 p.m. on May 13. Even if the jury believed that Darrell was in
Gaithersburg for a couple of hours that morning, the rebuttal evidence did not
preclude him from returning to D.C. to participate in the crimes. In closing, defense
counsel herself stated:
What Daron told you is that, after he met up with Darrell
[in Beltsville] on May 13th in the morning and they go to
Ed’s house, he’s left at Ed’s house sometime around 9 a.m.
in southeast D.C. And then Darrell drives off. [Appellant]
has no idea where Darrell [went] after that. There’s no
reason that Darrell Wint couldn’t have left there and gone
to Gaithersburg at 10:20 a.m. to meet up with whoever it
is that he needed to meet up with to get the rest of his day
done. It actually doesn’t particularly matter, anyways.
28
Defense counsel also pointed out other inconsistencies in Darrell’s testimony
and alibi. Therefore, the jury was aware that Darrell only had, at most, a partial alibi
from the Gaithersburg trip, and yet the jury still did not credit appellant’s third-party
perpetrator defense.
There was ample evidence to convict appellant. In light of the strength of the
combined evidence against appellant, we can say with fair assurance that the trial
court’s error did not substantially influence the jury’s decision.
C. Merger
Finally, we address appellant’s argument that we must remand for merger and
resentencing. The government concedes that appellant’s felony and premeditated
murder convictions must merge. See Jackson v. United States, 750 A.2d 551, 552
(D.C. 2000). Appellant argues that the predicate felony offenses must merge into
his felony murder convictions, and the premeditated murder convictions must merge
into the felony murder convictions. The government argues that the felony-murder
convictions should be vacated instead, allowing the burglary and kidnapping charges
to stand.
29
We agree with the government that the felony murder convictions must merge
into the premeditated murder convictions. The trial court imposed concurrent
sentences of life without release for the homicide convictions. She also imposed
additional sentences of 96 months for the burglary and the kidnappings of the adult
victims, 144 months for the kidnapping of Philip, 28 months for extortion and first-
degree theft, and 66 months for arson. She specified that the non-homicide sentences
will run concurrent to the life sentences. “Vacating the felony murder conviction,
not the premeditated murder and [predicate felony] convictions, best effectuates the
trial court’s sentencing plan.” Lester v. United States, 25 A.3d 867, 872 (D.C. 2011)
(emphasis in original).
We remand the case for the sole purpose of providing the trial court with the
opportunity to vacate the felony murder convictions with respect to each decedent.
See Baker v. United States, 867 A.2d 988, 1010 (D.C. 2005). We leave decisions on
resentencing to the trial court. See Lee v. District of Columbia, 22 A.3d 734, 737
n.2 (D.C. 2011). We affirm and do not disturb the premeditated murder convictions
or the burglary and kidnapping convictions.
30
III. Conclusion
In sum, we affirm appellant’s premeditated murder convictions for the deaths
of Savvas Savopoulous, Amy Savopolous, Veralicia Figueroa, and Philip
Savopolous. We remand with the instructions to vacate appellant’s felony murder
convictions. In all other respects, the judgment is affirmed. As we explained,
appellant should have been granted the opportunity to present surrebuttal evidence.
The government introduced a new factual issue in its rebuttal, and the proffered
surrebuttal evidence was “capable of discrediting the essence of the government’s
rebuttal testimony.” See, e.g., Murray, 736 F.2d at 657. However, in light of the
overwhelming weight of other evidence against appellant, there are no grounds for
reversal.
It is so ordered.
EASTERLY, Associate Judge, concurring in part and dissenting in part: The
majority holds that the trial court erred in denying Mr. Wint surrebuttal. I concur in
that determination as well as the determination that we must nevertheless affirm, but
I write separately to explain why I reach these conclusions.
31
Specifically, I believe we must follow our binding precedent, which provides
that when the government has raised a “new matter”—which by definition is
material—in its rebuttal case, an individual has a right to present surrebuttal
evidence that is undergirded by a defendant’s Fifth and Sixth Amendment right to
present a defense. To the extent that the majority’s new test for surrebuttal seeks to
limit that right or downgrade it to a matter of trial court discretion, I disagree that (1)
we have either the constitutional leeway or the power as a division of this court to
impose such a limitation, (2) the record or the briefing in this case call for such a
limitation, and (3) the out-of-jurisdiction decisions cited by the majority provide
much in the way of support for such a limitation. But I hasten to add that it is not
clear that this is what the majority opinion is doing with its new test, and for this
reason too I decline to sign on to its surrebuttal analysis.
Nevertheless, I agree that affirmance is warranted, but not because the trial
court’s erroneous denial of surrebuttal in this case is subject to harmless error review.
Instead, because Mr. Wint did not argue that his right to surrebuttal had
constitutional implications in the trial court, that claim is subject to plain error
review. Under the test for plain error, Mr. Wint has neither argued nor demonstrated
that he can make a showing that the trial court’s ruling affected his substantial rights.
32
I. The “Right” to Surrebuttal Under Our Law
Understanding the ordinary sequence of the presentation of evidence and
attendant constitutional concerns is critical to discerning when surrebuttal must be
permitted—as a constitutional matter and under our case law—versus when it is
discretionary. The government in a criminal case has the burden to prove a
defendant’s guilt of the charged crimes beyond a reasonable doubt. See Griffin v.
United States, 144 A.3d 34, 36 (D.C. 2016) (citing Sullivan v. Louisiana, 508 U.S.
275, 277-78 (1993)). Typically, the government carries this burden by presenting
all of its evidence in its case-in-chief. As a constitutional matter, a defendant has a
right to respond to the government’s case and present their own evidence. Facebook,
Inc. v. Wint, 199 A.3d 625, 633 (D.C. 2019) (“Whether rooted directly in the Due
Process Clause, or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” (brackets omitted)); see also Chambers
v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial
to due process is, in essence, the right to a fair opportunity to defend against the
State’s accusations.”).
33
If, after the government presents its case, a defendant opts to put on a defense,
the government may seek to present rebuttal evidence. The government does not
have a constitutional right to present such evidence, so whether the government may
extend the evidentiary phase of the trial by presenting a rebuttal case is “committed
to the discretion of the trial judge.” Rowland v. United States, 840 A.2d 664, 680
(D.C. 2004). The government is only supposed to use rebuttal evidence to “explain,
repel, counteract, or disprove” the defense evidence. Gregory v. United States, 393
A.2d 132, 137 (D.C. 1978). The government is generally not supposed to use
rebuttal to “advance new arguments” and thereby undercut a defendant’s right to
present a defense. Shelton v. United States, 983 A.2d 979, 985 (D.C. 2009). But, as
evidenced by this case, sometimes the government seeks to delve into an entirely
new matter on rebuttal, not in an effort to sandbag the defense, but in order to
respond to a defendant’s affirmative defense and carry its burden of proof.
Regardless, if the government is permitted to introduce “new matters” on
rebuttal, which are by definition material, our court has clearly stated that a
defendant has a concomitant “right” to surrebuttal. Gregory, 393 A.2d at 137(providing that “where new matters are introduced in rebuttal, [the defense] has a
right to surrebuttal” and concluding that, because the government had not injected
any “material issues . . . for the first time in rebuttal,” the defendant’s right to
34
surrebuttal was not violated); accord Chaabi v. United States, 544 A.2d 1247, 1249
n.6 (D.C. 1988) (stating that, when the government introduces a new matter on
rebuttal, surrebuttal is “mandatory”); see also Bynum v. United States, 799 A.2d
1188, 1194 (D.C. 2002) (finding error in denial of surrebuttal where it was important
to the defense to respond to the new matter introduced by the government on
rebuttal). This right to surrebuttal as acknowledged by our court is clearly
constitutionally compelled as a product of a defendant’s rights to due process and to
present a defense, see Chambers v. Mississippi, 410 U.S. at 294, notwithstanding
that we have not explicitly drawn the connection to the relevant constitutional
provisions.
Here, Mr. Wint put forth a third-party perpetrator defense. In response, the
government presented what the majority characterizes as “at most[] a partial alibi”
for the potential third-party perpetrator. Ante at 28. The fact that the proffered
rebuttal evidence was not terribly strong might have given the trial court grounds to
exclude it. But once the court permitted rebuttal of this nature, addressing what was
unquestionably a new matter, it triggered Mr. Wint’s right under our case law and
the Constitution to put responsive evidence before the jury attacking the partial alibi.
35
II. The Majority Opinion’s Surrebuttal Analysis
For reasons that are not clear to me, the majority opinion makes this more
complicated. Although it acknowledges that pursuant to Gregory a defendant has a
“right” to surrebuttal where the government introduces a new matter on rebuttal, it
contradictorily asserts that the “decision whether to allow surrebuttal generally lies
within the discretion of the trial court.” Ante at 15, 17 (emphasis added). The
majority opinion then seeks to structure that perceived discretion by borrowing one
or both parts of a two-part test from case law outside this jurisdiction and requiring
that a defendant seeking to present surrebuttal show that the proffered testimony is
“not tangential, but rather is capable of discrediting the essence of the government’s
rebuttal testimony.” Id. at 18, 19-21. I am opposed to the majority’s new test for
three reasons.
First, I disagree that we have either the constitutional leeway or the power as
a division of this court to convert the “right” to surrebuttal into a discretionary call.
Gregory expressly states that it is only when the government has not introduced a
new matter on rebuttal that the court has discretion to decide whether or not to permit
surrebuttal; otherwise, a defendant has a “right” to present such evidence:
36
[W]here new matters are introduced in rebuttal, . . . the
witness has a right to surrebuttal. United States v. Sadler,
488 F.2d 434 (5th Cir.), cert. denied, 417 U.S. 931 (1974);
Turner v. United States, 441 F.2d 736 (5th Cir. 1971); 6 J.
Wigmore, Evidence § 1874 (Chadbourne rev. 1976). In
all other cases, surrebuttal is within the sound discretion
of the judge.
393 A.2d at 137 (second emphasis added) (parallel citations omitted). As a division
of this court, we are bound by our prior precedent. M.A.P. v. Ryan, 285 A.2d 310,
312 (D.C. 1971).
Gregory’s citation to United States v. Sadler, 488 F.2d 434 (5th Cir. 1974),
does not, as the majority suggests ante at 17, undercut its categorical holding. To
the contrary, the Fifth Circuit in Sadler applied the new-matter test and held that the
government had not presented a new matter on rebuttal. 488 F.2d at 436 (adopting
the reasoning from Turner, 441 F.2d at 739, that “[t]he testimony of the
government’s rebuttal [witness] in this case does not appear to us to be ‘new’”). 1
1
The passage from Sadler that the majority opinion block-quotes, ante at 17
(quoting 488 F.2d at 435), has nothing to do with the substantive test for surrebuttal,
but rather relates to the procedural history of the case where counsel asked for
surrebuttal but at no point identified a new matter raised on rebuttal. Id. at 435-36.
In this context, the Fifth Circuit opined that defense counsel should have objected
during rebuttal to any new matter raised and that, if counsel waited until the rebuttal
witness left the stand, counsel would have to persuade the court that the government
had presented a new matter and that the defense had evidence that was responsive.
Id. But that is nothing more than the basic new-matter and relevance tests at work,
37
Apart from Sadler, the majority opinion finds support for its test in a trial
court’s duty to “exclude confusing and distracting evidence on collateral issues.”
Ante at 14. But that duty derives from basic rules of relevance and the balancing of
probity versus prejudice. 2 See, e.g., Parker v. United States, 249 A.3d 388, 404
(D.C. 2021) (affirming the exclusion of “distracting or confusing” testimony as more
prejudicial than probative); Williams v. United States, 571 A.2d 212, 215 (D.C.
1990) (explaining that evidence must be relevant to avoid “time-consuming and
confusing . . . collateral issues” (quoting Williams v. New York, 337 U.S. 241, 246-
47 (1949)). These rules constrain the universe of surrebuttal evidence the defense
can use after the government’s introduction of a new matter triggers the right
recognized in Gregory; they cannot not qualify the right to present surrebuttal
evidence itself. 3
and the procedural concern at issue in Sadler has nothing to do with the substantive
question presented in this case.
2
The cases the majority cites—Cannon and Winfield—illustrate this
proposition. Ante at 14, 17; see Cannon v. United States, 838 A.2d 293, 299 (D.C.
2004) (citing Carr v. United States, 585 A.2d 158, 163 (D.C. 1991), which cites
Smith v. Executive Club, Ltd., 458 A.2d 32, 41 (D.C. 1983), which in turn cites cases
discussing Federal Rules of Evidence 401 and 403); Winfield v. United States, 676
A.2d 1, 3, 5 (D.C. 1996) (en banc) (discussing the District’s one standard of
relevance).
3
The majority opinion quotes Cannon as if it applied this limitation to the
right of surrebuttal. Ante at 14. But in Cannon, this court concluded that the
38
Second, I disagree that the record or briefing in this case call for this recasting
of the surrebuttal right as a matter of discretion. The majority opinion asserts that
this court “ha[s] never established a per se rule that any new fact introduced in
rebuttal warrants surrebuttal as a matter of right.” See ante at 15. That statement is
correct, but inapposite in the context of this discussion. The issue before us is not
whether the government presented evidence regarding some new extraneous fact on
rebuttal (though query why it should be permitted to do so, given the limitations on
rebuttal, as discussed supra). Here, as the majority acknowledges, the government’s
rebuttal clearly went beyond mere extraneous new facts and met the “new matter”
threshold established in Gregory. See ante at 20-21. Mr. Wint was therefore entitled
to surrebuttal as a matter of right, within the bounds of the rules of evidence. See
supra. Further, the government never challenged the Gregory rule in this case or
urged the imposition of a more stringent test for allowing surrebuttal. The trial court
denied surrebuttal because it concluded that the government’s rebuttal evidence was
“not a new matter that[ wa]s being introduced,” and the government exclusively
defendant had no right to surrebuttal because the government’s rebuttal evidence had
been stricken. 838 A.2d at 299. In other words, because there was no new matter
to respond to, the right to surrebuttal was not triggered.
39
defends that ruling. 4 It does not try to argue that, if there is a right to surrebuttal,
that right is somehow qualified or discretionary.
Third and finally, I disagree that the out-of-jurisdiction decisions on which
the majority relies provide much in the way in the support for such a limitation. The
majority looks to “several” federal court of appeals decisions that allow presentation
of surrebuttal evidence only “where (1) the government’s rebuttal testimony raises
a new issue which broadens the scope of the government’s case, and (2) the defense’s
proffered surrebuttal testimony is not tangential, but capable of discrediting the
essence of the government’s rebuttal testimony.” Ante at 18 (citing United States v.
Moody, 903 F.2d 321, 331 (5th Cir. 1990); United States v. Murray, 736 F.3d 652,
657 (2d Cir. 2013) (citing Moody); United States v. Sorensen, 801 F.3d 1217, 1239
(10th Cir. 2015) (citing Murray); and United States v. Pon, 963 F.3d 1207, 1243
(11th Cir. 2020) (Martin, J., concurring in part)). The majority opinion says “[t]his
two-part test is consistent with our case law on rebuttal” but then immediately
acknowledges, ante at 19 n.6, that the first part of this test “may appear inconsistent
4
The court also stated that it “[did]n’t think [the proffered surrebuttal]
testimony would rebut testimony . . . provided in the Government’s rebuttal case,”
but as the government acknowledged in its brief, the court made this remark in
denying the defense’s request for a missing witness instruction, not with regard to
the request for surrebuttal.
40
with Bynum, 799 A.2d at 1194.” 5 For the reason the majority identifies, it is
inconsistent with Bynum, where the rebuttal evidence impeaching the theory of
defense did not broaden the scope of the government’s case, but we nevertheless
held the defendant had a right to surrebuttal. 799 A.2d at 1194. Moreover, the
second part of this test is likewise incompatible with our precedent because it
squarely conflicts with Gregory. See supra. The majority ignores the fact that a
comparable number of circuits to have considered the issue of surrebuttal do not
require special scrutiny of proffered surrebuttal testimony 6 —aligning with this
court’s approach in Gregory and with the approach endorsed in Wigmore. 6
Wigmore on Evidence § 1874 (“[E]vidence explaining away the effect of new facts
5
Although the majority opinion acknowledges the tension between the first
part of its test and Bynum, it is not entirely clear where the majority opinion lands.
It seems ultimately to conclude that the trial court should assess not only whether
the government has introduced a new matter on rebuttal (as authorized by Gregory),
but also somehow assess the materiality of the government’s rebuttal evidence,
notwithstanding that any “new matter” introduced on rebuttal is by definition
material.
6
See United States v. Purkey, 428 F.3d 738, 759 (8th Cir. 2005) (stating that
surrebuttal is appropriate “when new matters are raised in the rebuttal testimony”);
United States v. Barnette, 211 F.3d 803, 821 (4th Cir. 2000) (“Surrebuttal evidence
is admissible to respond to any new matter brought up on rebuttal.”); United States
v. Leon-Delfis, 203 F.3d 103, 114 (1st Cir. 2000) (stating that surrebuttal is allowed
“to explain away new facts brought forward by the proponent in rebuttal, or evidence
to impeach a witness who testified in rebuttal” (internal quotation marks omitted));
see also United States v. Butcher, 926 F.2d 811, 817 (9th Cir. 1991) (assessing the
district court’s denial of surrebuttal solely as to whether the evidence would be
cumulative, not under a heightened standard of materiality).
41
brought forward by the proponent in rebuttal . . . is . . . entitled to be received,
without depending on the court’s discretion.”).
Ultimately, it is unclear what function the majority opinion’s new test serves
other than to sow confusion. Employing it in this case, the majority concludes that,
because the proffered surrebuttal testimony “implie[d]” that the “essence” of the
government’s rebuttal evidence was incorrect and “made it less probable that” the
alleged third-party perpetrator’s partial alibi was true, this evidence was “capable of
discrediting the government’s” rebuttal within the meaning of this test and should
have been put before the jury. Ante at 22-24. In other words, the proffered
surrebuttal evidence was not required to be a conclusive or total refutation of the
government’s rebuttal for Mr. Wint’s right to surrebuttal to adhere even under the
majority’s test. Furthermore, the majority opinion holds that the trial court “erred,”
ante at 24—not that it abused its discretion. This is just as well. A defendant’s right
to present a defense and to respond to the evidence against them must take
precedence over any desire to facilitate efficient courtroom management, and it
therefore limits any more extensive application of this test.
42
III. Harmlessness
Although I agree with the majority opinion that the trial court erred in ruling
that Mr. Wint could not present evidence in surrebuttal, I part ways again with the
majority opinion in analyzing whether the trial court’s ruling denying Mr. WInt
surrebuttal constitutes reversible error. The majority opinion analyzes this ruling
under the standard for non-constitutional errors set forth in Kotteakos v. United
States, 328 U.S. 750, 765-66 (1946). Ante at 26. I would instead consider this as
constitutional error, given that the right to surrebuttal when the government has
introduced a new matter on rebuttal is constitutionally grounded, see supra, meaning
the standard for constitutional errors set forth in Chapman would apply. See
Chapman v. California, 386 U.S. 18, 24 (1967) (holding constitutional errors to a
standard of “harmless beyond a reasonable doubt”). The problem is that Mr. Wint
did not preserve a constitutional claim. While he asked for surrebuttal, he never
mentioned the right to due process or to present a defense, or cited to the Fifth or
Sixth Amendments of the Constitution; he never mentioned the Constitution at all. 7
7
Not every request is one of constitutional dimension. See Mack v. United
States, 6 A.3d 1224, 1234 (D.C. 2010) (“Mr. Mack did not mention the Second
Amendment in the trial court, and his reliance on the common law doctrine of self-
defense was not sufficient to raise a constitutional claim.”); Comford v. United
States, 947 A.2d 1181, 1188 (D.C. 2008) (explaining that “a hearsay objection [will
not] preserve a Confrontation Clause claim”); see also Paige v. United States, 25
A.3d 74, 81 (D.C. 2011) (explaining that “[o]bjections must be made with reasonable
43
And thus our review should be for plain error. See Marquez v. United States, 903
A.2d 815, 817 (D.C. 2006) (“Because counsel objected at trial to the admission of
the statement on purely evidentiary grounds and did not raise a Confrontation Clause
objection, we must review the claim for plain error.” (footnote omitted)). Mr. Wint
did not attempt to satisfy the test for plain error, but even if he had, I would conclude
that he could not meet the third prong of the test requiring a showing that the trial
court’s ruling adversely affected his substantial rights, for the same reasons the
majority provides in its Kotteakos analysis ante at 26-28. See Pérez v. United States,
968 A.2d 39, 93 (D.C. 2009) (citing United States v. Dominguez Benitez, 542 U.S.
74, 81 (2004)) (stating that the “substantial rights” standard is “similar to the
Kotteakos formulation,” except that “it is the defendant rather than the [g]overnment
who bears the burden of persuasion with respect to prejudice” (brackets and internal
quotation marks omitted)).
In sum, although I agree with the majority opinion’s determination that the
trial court erred but that that error does not warrant reversal, I disagree with
substantial components of its reasoning. The new test the majority opinion adopts
for surrebuttal only complicates and confuses this area of the law and threatens to
specificity; the judge must be fairly apprised as to the question on which he is being
asked to rule”).
44
impinge on a defendant’s constitutional rights should it be literally construed.
Further, its analysis concluding that the trial court’s error does not warrant reversal
disregards the constitutional aspect of Mr. Wint’s claim. For these reasons, I
respectfully concur in part and dissent in part.