Carlos Melendez appeals from his conviction for second-degree murder as the lesser-included offense of his charged crime, first-degree murder. Because we find none of his arguments to have merit, we affirm his conviction.
I.
On March 7, 2006, Carlos Melendez was charged with five counts: (1) kidnapping while armed (of Mayra Margot Gutierrez); (2) kidnapping (of Moisés Cardoza); (3) carjacking while armed; (4) first-degree felony murder; and (5) first-degree premeditated murder. After a jury trial, Melendez was found guilty of second-degree murder as a lesser-included offense of first-degree premeditated murder (count 5) and of the kidnapping of Moisés Cardo-za. He was acquitted of the kidnapping while armed of Mayra Margot Gutierrez (“Margot”) and of first-degree felony murder, as well as its lesser-included offense of second-degree murder. The carjacking charge was dismissed at trial. After the trial, the trial court granted Melendez’s motion for a judgment of acquittal on the kidnapping charge. Thus, the only conviction that resulted from Melendez’s trial was for second-degree murder as a lesser-included offense of first-degree premeditated murder.
All of the charges against Melendez stemmed from the June 5, 2005 murder of Margot, whose body was found in a stairwell at 3132 16th Street, Northwest. Melendez had previously lived with Margot and her three children in Baltimore, Maryland. Celino Marcia, the father of the three children, had also previously lived with Margot but moved out around the time Margot began dating Melendez. While Melendez was living with Margot, Margot’s friend Keila Gonzalez (“Keila”) also moved into Margot’s home.
At trial, Keila testified that she overheard many arguments between Melendez and Margot that usually took place in their bedroom, often as a result of Melendez’s jealousy. According to Keila, Margot would often look disheveled after such arguments and asked Keila multiple times to call the police. In March or April of 2005, Margot asked Keila to move out because of Margot’s troubles with Melendez, and Kei-la moved five or six houses away to stay with her friend, Myra Cardoza, and Myra’s four-year-old child, Moisés Cardoza (“Moisés”). Soon thereafter, Melendez and Margot broke up and, according to Melendez’s friend Salvador Blanco, Melendez sought to make amends with his previous long-time lover, Rosario Ventura, by moving in with Ventura’s brother in Wood-bridge, Virginia. Ventura lived at the 16th Street address where Margot’s body was ultimately found.
On June 4, the day before Margot’s murder, Keila overheard a phone call in which Melendez told Margot that he wanted to see her to return her rings to her. Maribel Varíela, Margot’s mother, also tes
On the morning of June 5th, the day Margot was murdered, Margot invited Keila to a barbeque hosted by Margot’s cousin, Yamileth Torres, in Silver Spring. Varíela also testified that she spoke to Margot that morning and that Margot had told Varíela that she intended to go to Torres’ barbeque later that afternoon. Keila declined to attend but instead took one of Margot’s children shopping, while Margot took Moisés with her to the barbeque. Margot never arrived at the barbeque, and Torres’ calls to Margot seeking an explanation were never answered.
At about 2:80 or 8:00 on the afternoon of June 5, Fausto Arguta discovered Mar-got’s body in the stairwell of the apartment building in which he lived at 3132 16th Street, Northwest. The body was located in the second-floor stairwell about thirty feet from Ventura’s apartment. It appeared to the police detective who responded that the body had been placed in the stairwell after the attack and that the attack had not taken place far away. Mar-got’s car was found in the parking lot behind the apartment building the next day. An autopsy revealed that Margot had been strangled to death and that there were marks on her body consistent with being dragged while unconscious.
Keila testified that later that afternoon in Baltimore, around 5:30 or 6:00, she was at the home she shared with the Cardozas when she saw Moisés running alone down the alley behind the home looking very upset. Keila asked where Margot was, and he told her Margot was “with [Melendez]” and to “call the doctor.” Moisés told Keila that he and Margot had gone to a park to get some rings from Melendez and that Melendez had put a knife to Margot’s neck and taken them to Melendez’s house. According to Keila, Moisés said that he had “seen” Melendez punching Margot as they came out of the bathroom of Melendez’s house, that Margot’s hands and mouth had been taped, and that she had been “thrown to the ground.” Moisés also told Keila that Melendez had then driven Moisés home to Baltimore. At that point, Keila called Margot many times but got no answer, and also called Baltimore police and Margot’s mother, Varíela, to tell her that Margot was missing.
Moisés also testified at trial. He identified Melendez in the courtroom and said that although he did not know how Margot died on June 5, he knew Melendez had killed her. Melendez had taken Moisés to a room, where Moisés sat, and gone into another room where Moisés could hear Margot screaming to help her. Moisés did not help because he was scared Melendez would harm him too, since Melendez had a knife, tape, some gloves, and a bag. Mois-és testified that he did not see what Melendez did with these items, but that Melendez later took Moisés back to his home in Baltimore in Margot’s car, without Mar-got, at which point Moisés told Keila everything that had happened.
The day after the murder, in an interview with Baltimore Police Detective Donald Bradshaw, Moisés orally identified “Carlos Melendez” through a translator as the one who harmed Margot. Two days later, D.C. Police Detective Maria Flores also interviewed Moisés, who told her that he had witnessed Margot’s murder and that “Carlos” was the one who hurt her. Flores conducted a second interview of Moisés two days after that and showed him a confirmation, photograph, in which he identified Melendez as “Carlos.”
At trial, two Sprint employees testified regarding Margot’s and Melendez’s cell phone records. The records revealed that Margot received a call from Melendez at 1:20 p.m. on June 5, and that both phones were transmitting from the same tower in Northwest D.C., located 1.5 blocks from where Margot’s body was found. Both continued to use that tower until 2:15 p.m.; by 5:04 p.m. that day, both phones were transmitting from a different tower in Baltimore less than a half-mile from Margot’s home. By 6:31 p.m., they were transmitting from the same Northwest D.C. tower as previously, and after 7:30 p.m. from a different tower in Woodbridge, Virginia, about five miles from Melendez’s home.
In his defense, Melendez introduced evidence that it was Margot’s former lover Celino Marcia who was Margot’s true murderer and not him. First, Melendez called his former girlfriend, Ventura, who testified that she received a call from Marcia in 2005, telling her that Melendez was hanging out with “his wife” Margot and that they should do something to break the two up and also asking for Ventura’s address. Ventura testified that Marcia said he “was going to do whatever was possible” to separate Margot and Melendez. Melendez also called two Baltimore police officers who testified that on separate incidents, they had responded to calls at Margot’s house that she shared with Marcia at the time, each time in response to an alleged assault by Marcia.
Melendez’s final witness was Marcia himself. He testified as to his prior relationship with Margot and said that while he was upset when Margot began dating Melendez, he got over it. Marcia admitted calling Ventura to say that Melendez should leave Marcia’s home alone and asking for Ventura’s address, but denied threatening Ventura or saying that he would do everything in his power to break Margot and Melendez up. Marcia testified that on the morning of the murder, he saw Margot with Moisés at a gas station but did not ask where she was going. During the same gas station encounter, Marcia asked Margot why she was out with other people’s children (Moisés) and not her own, but testified that he was not angry about it. Marcia also testified that although Margot was the complainant in a court case pending against him stemming from a domestic violence incident between the two, it had been dropped before her death. Although he met with the prosecutor about Margot’s homicide in 2005, Marcia did not learn that he would be a witness in this case until three days before his testimony. Finally, Marcia denied killing Margot and testified that he loved her very much.
II.
Melendez’s primary argument on appeal is that the trial court abused its discretion by precluding Melendez from presenting, from the start of trial, a third-party perpetrator defense: that Marcia, rather than Melendez, killed Margot. The trial court did eventually allow Melendez to make this very argument, but not until the government had rested its case-in-chief. Melendez contends that the error occurred as a result of a combination of the trial court’s failure to: (a) allow Melendez to mention
We review a trial court’s determination on the admissibility of a third-party perpetrator defense for abuse of discretion, and that determination “will be upset on appeal only upon a showing of grave abuse.” Gethers v. United States,
Melendez’s failure to provide a sufficient proffer before his initial efforts to introduce evidence of a third-party perpetrator defense dooms his appeal on this issue. Before a trial court will allow evidence of a third-party perpetrator defense, it must be confident that the evidence “tend[s] to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” Winfield v. United States,
Here, we are satisfied that the trial court did not abuse its discretion by withholding a final ruling on the Winfield third-party perpetrator issue until Melendez had provided a more concrete proffer. While Melendez was able to provide evidence that Marcia may have had a motive to harm Margot, he could not initially provide sufficient evidence that Marcia had the opportunity to do so on June 5th. In Melendez’s original pretrial Winfield proffer, Melendez proffered five pieces of evidence: (1) that Baltimore police officers would testify that they had responded to previous reports of domestic violence by Marcia against Margot; (2) that Melendez had placed the 911 call for one of these incidents, placing him and Marcia in “adversarial posture;” (8) that Marcia called Ventura seeking her help in preventing Melendez from seeing Margot; (4) that Marcia and Margot had a chance meeting at the gas station on the morning of her murder; and (5) that Melendez received a phone call in the days after the murder in which a male voice indicated he had harmed Margot and that Melendez would get a “big surprise,” after which Melendez allegedly received Margot’s cell phone in the mail.
Without more, the fact that Marcia had a chance meeting with Margot at a gas station in Baltimore on June 5 is insufficient to show that he had the opportunity to kill her later in the day in the District of Columbia, merely because it theoretically would have been possible for Marcia to follow her there. Thus, we are satisfied that the trial court properly exercised its
A. Opening Statement
Having determined that the trial court’s exclusion of evidence of a third-party perpetrator defense was a proper exercise of its discretion, the trial court’s decision to preclude Melendez from making such an accusation in his opening statement could not be considered an abuse of discretion. While defendants are entitled to present opening statements, “the scope and extent of [a] defendant’s opening statement rests largely within the discretion of the trial judge.” Jennings v. United States,
B. Cross-Examination of Government Witnesses
Similarly, the trial court’s parallel limitation upon Melendez’s cross-examination of government witnesses was also proper. Where a trial court appropriately precludes introduction of evidence of a third-party perpetrator defense due to an insufficient Winfield proffer, its limitation on cross-examination of witnesses to exclude questioning about that defense is not an abuse of its discretion. McCullough v. United States,
C. Prosecutor’s Remarks in Rebuttal
After the government rested its case-in-chief, Melendez provided a final, more concrete Winfield proffer which the trial court ultimately found sufficient. This proffer contained one additional piece of evidence that tended to indicate that Marcia had the opportunity to commit the murder: according to Rosario Ventura, Melendez’s “common law wife” who lived in the building where Margot’s body was found, Marcia had telephoned Ventura and asked for her address a few months prior to the murder. Melendez’s counsel added that when Ventura asked why Marcia wanted this information, Marcia said “because I want to get him out of the way.” This newly-proffered evidence swayed the trial court to accept Melendez’s Winfield proffer since, in the trial court’s opinion, Ven-tura’s testimony was “the single most important aspect” of the proffer because it provided most of the “factual basis” of the “threats, et cetera, from Mr. Marcia to Ms. Ventura about the defendant and Margot.” The trial court concluded that Marcia’s request of Ventura’s address was “arguably a point of opportunity or tend[ed] to show some opportunity” and thereafter allowed Melendez to introduce a third-party perpetrator defense implicating Marcia.
After this ruling, Melendez presented his week-long defense case, arguing in closing that the evidence showed that Marcia, not Melendez, was Margot’s murderer. In rebuttal, the prosecutor discredited this theory, telling the jury that
the defense does not put Celino Marcia on the radar screen until last week when [Ventura] testified.... It’s only after, you know, that that whole little jail scam[1 ] does not work out, they probably figure out let’s get Celino Marcia on the stick.... Why would [any other witnesses] mention anything about [Marcia] ... if the defense did not think to put him as a suspect until last week? That is absurd.
Without any defense objection, the trial court sua sponte convened a bench conference and expressed its displeasure at this line of argument in the wake of extended Winfield litigation prior to trial. When the trial court admonished her, the prosecutor said she would move on, and defense counsel asked for “a correction.” The trial court indicated that it was “open to the idea” of issuing some sort of corrective statement, but was not sure what the substance would be; defense counsel was also at a loss for what would be an appropriate limiting instruction. At that point, the
Because the trial court intervened immediately upon hearing the prosecutor’s improper argument and offered to provide a limiting instruction if Melendez could devise one that would cure the error, Melendez’s failure to offer a curative instruction means that we review this incident for plain error. See Irick v. United States,
Assuming arguendo that the prosecutor’s comment was improper, it only related to the issue of Melendez’s guilt by inference — namely, that since the defense’s claim that Marcia was the killer was a recent fabrication, Melendez was the actual killer. In light of the strength of the government’s case against Melendez, including Moisés’ eyewitness testimony and identifications, the cell phone records, and the physical evidence, the prosecutor’s statement was not so grave as to warrant a finding of plain error based upon the trial court’s response. Most importantly, the trial court itself intervened sua sponte to prevent any further improper argument and provided Melendez an opportunity to craft a suitable limiting instruction, which he declined to do. Under these circumstances, we cannot say that the trial court’s response to the prosecutor’s remark “seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceeding.” See Daniels v. United States,
In sum, the trial court properly exercised its discretion by excluding evidence of a third-party perpetrator defense until Melendez provided a sufficient Winfield proffer, and it did not plainly err by responding to the prosecutor’s remarks in rebuttal. We therefore deny Melendez’s appeal on this issue.
III.
Melendez’s second argument is that the trial court abused its discretion by admitting, as excited utterances, testimony from Keila regarding Moisés’ statements to her upon his arrival at her home after Melendez dropped him off. Under the circum
When an appellant challenges the trial court’s admission of hearsay-statements as excited utterances, “[t]he underlying factual findings are reviewed under the ‘clearly erroneous’ standard .... ” Odemns v. United States,
(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.
Id. at 776. Moisés clearly experienced a “serious occurrence” when he witnessed Margot’s murder and was driven directly home, in silence, by the man he witnessed commit the murder. According to Keila, once Moisés arrived home, he ran up to her and appeared “very scared,” “excited, nervous, and cold,” “tired, very shocked, greenish,” and “very upset” when he told her what happened. Moisés himself confirmed that he was “a little scared” and “nervous” at the time. Thus, the admissibility of Keila’s testimony as to what Mois-és told her depends on the second and third excited utterance elements.
With respect to the reasonableness of the interval between the underlying event and the later statements, “the time element is not controlling, [but] it is of great significance.” Alston v. United States,
Although there was a significant time gap of at least an hour and forty-five minutes between Margot’s murder and Mois-és’ statements to Keila, the statements were sufficiently spontaneous to qualify under the excited utterance exception. After four-year-old Moisés witnessed the murder, he was driven straight back from the District to Baltimore by Melendez, the murderer, without stopping. Moisés feared saying anything because he believed Melendez might kill him too. When he finally arrived home in Baltimore after a silent, uninterrupted car ride, Keila testified that he ran up to her and she asked him “Who are you with? Where’s Mar-got?” Moisés responded that Margot was “with Carlos” and that Keila should “call the doctor.” He then relayed what had happened earlier that day to Keila, who was interjecting her own questions with his statements in order to understand what he was saying and to calm him down. Under these circumstances, there is no indication that Moisés’ statements to Keila were made under the impetus of reflection. Moisés endured hours of terror, ran up to the first trusted individual he encountered, and blurted out what happened. Although this took place well after the murder occurred, under these facts, we are satisfied that Moisés’ initial statements to Keila qualified as excited utterances, and we cannot find that the trial court abused its discretion by admitting Keila’s testimony regarding those statements. Therefore, Melendez’s appeal on this issue fails.
IY.
Melendez next challenges the trial court’s admission of Detective Bradshaw’s testimony that on the day after the murder, Moisés told him that “Carlos Melendez” was the one who harmed Margot. Assuming arguendo that Melendez did not waive this claim, we review this appeal for plain error since Melendez did not object to the admission of this statement at trial. See, e.g., Bacchus v. United States,
Under D.C.Code § 14-102(b)(8) (2001), “[a] statement is not hearsay if the declarant testifies at the trial ... and is subject to cross-examination concerning the statement and the statement is ... an identification of a person made after perceiving the person. Such prior statements are substantive evidence.” See also, e.g., (Larry) Brown v. United States,
y.
Melendez also challenges the trial court’s admission of the testimony of Detective Flores, who testified that she showed Moisés a single photograph that included Melendez (among a larger group of people) and that Moisés identified Melendez from that photograph. At trial, while Moisés provided inconsistent testimony about whether he had met Melendez prior to the day of the murder, Keila testified that he “of course” had met Melendez before that day, and the trial court expressly credited her testimony on the issue. The trial court also viewed the entire photographic identification procedure between Moisés and Flores on videotape and determined that Flores’ testimony was admissible. Melendez claims that the single-photograph identification, as opposed to a photo-array identification, was unreliable and unduly suggestive.
Under the circumstances, we are confident that Moisés’ identification of Melendez from a single photograph was proper and that Flores’ testimony regarding that identification was admissible. Our general two-step inquiry under Adams v. United States,
YI.
Melendez’s final two issues arise from the trial court’s response to the in
We addressed this precise situation in Fisher v. United States,
Because under Fisher the trial court committed no error in its response to the inconsistent verdicts, Melendez’s final claim — that his trial counsel was constitutionally deficient for failing to react to the inconsistent verdicts — is without merit. See Artis v. United States,
VII.
For the foregoing reasons, all of Melendez’s claims on appeal fail, and we affirm the trial court’s decision.
Affirmed.
Notes
. This "jail scam," which is irrelevant to this appeal, involved an incident in which a handwritten note was confiscated from Melendez while he was in jail and returning from a social visit there with Ventura. The note described a plan by which another individual would be framed for Margot’s murder.
. United States v. Powell,