*1 armed, and remand for gree murder while vis-a-vis those counts proceedings
further In opinion. with this all accordance the judgments we affirm on respects,
other
appeal.61
So ordered.
William McCORKLE and Andre
Clinkscale, Appellants, STATES, Appellee.
UNITED 11-CF-1667, 11-CF-1668.
Nos. Appeals.
District Columbia Court
Argued Feb. 2014. Sept.
Decided survives, first-degree premeditated 61. Leon's merges murder der conviction it with the addition, felony merge, underlying felony. murder convictions In stated in as felony likely finding while the two supra, juiy’s statutory murder convictions note aof keeping pre- aggravating will be vacated favor of circumstance should be vacated. conviction, felony meditated murder if a mur- All this be addressed on remand.
H7 court, the statement unconstitutionally province invades and has implicitly Finding overruled. no re- versible error on this or grounds other raised, we affirm. *3 Background
I. Factual trial, At thе government’s case primarily Brand, Service, Jessica Public Defender focused on that place events took shortly Fam, with Klein whom James and Sarnia May after 4:00 a.m. on 2008. An alter- Service, brief, Public Defender were on the began cation that morning after McCorkle for appellant William McCorkle. Hough cut front of at the attendant’s Greenbelt, MD, Szekely, Andrew R. for window of a gas station. The conflict esca- appellant Andre Clinkscale. lated, eyewitnesses and six testified that Perez,
James M.
Assistant United
they saw the shooting. A firearms expert
Attorney,
States
with whom Ronald C. determined that
two different semi-auto-
Jr.,
Machen
States Attorney,
and
pistols
murders,
matic
were
used
Trosman,
Danello,
Elizabeth
Elizabeth H.
and medical examiners
testified that
Kerkhoff,
Jennifer
Cooney,
and J.P.
Assis- Hough
times,
had been shot seventeen
Jet-
tant United States Attorneys, were on the
times,
er nine
Mincey
and
eleven times.
brief,
appellee.
witnesses,
None of the
including McCor-
kle, said
they
saw the victims with
WASHINGTON,
Before
Judge,
Chief
any weapons
morning.
guns
No
be-
FISHER,
RUIZ,
Judge,
Associate
and
longing to the victims were found at the
Senior Judge.
scene.
FISHER,
Harlenia Ray,
teenage girl
a
Judge:
Associate
from the
neighborhood,
in support
testified
of one of
May
On
Hough, Johnny
Duane
justice
obstruction of
charges. She
Jeter,
Anthony Mincey
and
were shot to
said that shortly after she
questioned
was
death after an early-morning altercation at
by poliсe, she received a visit from McCor-
gas
station. Appellants William McCor-
kle
They
and another man.
called her into
kle and Andre Clinkscale were later indict-
pickup
her,
truck and McCorkle told
variety
ed on a
charges
stemming from
“don’t say nothing” to the detectives.
that triple homicide
subsequent
and their
attempts to
justice.
obstruct
After a
McCorkle
Hough
admitted
he shot
trial,
Jeter,
McCorkle was convicted on fourteen
and
but claimed that he acted in
charges and
years
sentenced to 144
self-defense. He took the stand and re-
incarceration.
that,
found Clinkscale
counted
provoked
after he
Hough’s
guilty
charges,
on seven
line,
and he was later
by cutting
ire
he made evеry
years
sentenced to 105
in prison.
ap-On
effort to calm the other man down and
peal,
both
contend that the
eventually
first
gas
tried to leave the
station to
prong of the Laumer test for admitting
prevent
trouble. McCorkle said that
interest,1
statements
Hough
which
followed him as he tried to walk
requires a
veracity
trial court to assess
away
toward Holbrook Street and that
of the witness
repeat
who has offered to
Hough’s associates
him
cut
off with their
(D.C.1979) (en banc).
1. See Laumer v. United
the time of was dead. Prong A. First of Laumer “ was that he Clinkscale’s defense was ‘Hearsay* is out-of-court present and that “all acts attributed to him statement ‘offered in evidence prove the ” by the Government or the witnesses were truth of the matter asserted.’ Martin v. by Trey Joyner.” committed In addition States, (D.C. United relying testimony on McCorkle’s to this 2010). Although “generally not admissible effect, sought Clinkscale to introduce the trial[,]” Laumer, at 409 A.2d at hear testimony Tywon Hager, pre- who was say “will be admissible if it falls under an pared testify Trey Joyner that had ad- exception.” Dutch v. United homicide, participating mitted in the triple (D.C.2010). A.2d exceptions Such contrary penal During to his intеrest. an “provide for the admission of statements evidentiary hearing Hager at which Mr. they because exhibit certain indicia of reli gave proffered testimony, his ability that overcome outweigh or the nor requested Trey also that the statement of mal risks associated with the inherent dan Joyner hearing, be admitted. After the gers hearsay statements.” the trial court Hager found that was not at A.2d credible and that the defendants therefore Historically, our common law did not Joyner had failed to establish that Mr. hearsay contain a exception for statements reported “made the statement.” See, against penal e.g., interest. Admitting
II. The Laumer Test for
Alexander,
States v.
430 F.2d
Against
Statements
Penаl
(D.C.Cir.1970) (“declining] appellant’s in-
Interest
adopt
exception
vitation” to
the
for hear-
interest).
say
against penal
statements
Both
contend that
the
However,
in Laumer v. United
prong
admitting
first
of our
state
test
court,
banc,
interest,
sitting en
held that the “total
against penal
ments
announced in
rejection of
against penal
declarations
in-
Laumer v. United
When
Rules,
ment fits within the declaration
an amendment to the Federal
exception,
require
we
a “tri Advisory
on Evidence
Committee
Rules
judge
three-step inquiry
al
to undertake a
commentary:
adopted
following
“[T]he
(1)
declarant,
to ascertain
whether
credibility of the witness who relates the
(2)
fact,
statement;
made
whether the
proper
statement
is not a
factor for the
(3)
unavailable;
whether
declarant
assessing
court to consider in
corroborat-
*5
clearly
indi
ing circumstances. To
admission or
base
the trustworthiness of the statement.”
cate
of
hearsay
exclusion
statement on the
applying
prong
Id. at 199.
the first
When
credibility
usurp
jury’s
witness’s
would
of the
test
determine “whether the de-
determining
credibility
role of
of testi-
proffered
clarant in fact made the
state
fying
Advisory
witnesses.”
Committee
ment, the trial court’s focus is not on the Note on the 2010 Amendments to Fed.
declaration,
truth of the
but on the veraci
804(b)(3),
U.S.C.A., p.
R.Evid.
28
338
ty of the
repeats
witness who
the declara
2012).
(West
far, only
Thus
the Seventh
tion.” Id. “If the trial judge concludes
explicitly acknowledged
Circuit has
this
made,
that no statement was
then no basis
commentary
changed
revised
its
exists for
inquiry,
further
and the
Henderson,
stance. See United Statеs v.
proffered testimony should be excluded.”
(7th
(“The
1128,
Cir.2013)
736 F.3d
1131
Id.
question of whether the declarant made
adopted
largely
implicates
testifying
The test we
the statement
wit-
based
hearsay exception
on the federal
credibility; making credibility
state-
ness’s
de-
which,
interest,
against penal
ments
at the
terminations is a role reserved to the
Laumer, required
time of
jury.”).3
appears
that the declar-
It now
Hendrieth,
Compare, e.g.,
2.
ordinarily
United States v.
of an in-court
witness
748,
(11th Cir.1991) (the
922 F.2d
750
jury”),
trial
a matter for the
United States v. Kat
769,
(2d Cir.1983)
court
consider in-court witness’s
sougrakis,
motive
715 F.2d
777
matter),
misrepresent
(“preliminary
and United States
assessment of the in-court wit
Rasmussen,
55,
(8th Cir.1986)
v.
790 F.2d
usurpation
ness’
would ... be a
of
("The
function”),
of
trustworthiness
a statement
and United States v. At
by
kins,
(3d Cir.1977) ("Rule
declarant's
interest is determined
558 F.2d
analysis
probable
804(b)(3)
of two
‘the
elements:
verac-
directs the court to the trustworthi
witness,
ity
reliability
declarant,
witness.”).
of the in-court
and the
ness of the
of
declarant.'")
(quoting
of the out-of-court
Alvarez,
authority
Advisory
United States v.
584 F.2d
3. The
of an
Committee's
(5th Cir.1978)), with, e.g.,
Compare, e.g.,
United States v.
Notes has been debated.
Tome
(1st Cir.1989) ("the
States,
Seeley, 892 F.2d
v. United
115 S.Ct.
U.S.
basis has
ing
philosophical
the trial
whose
requires
which
prong of
in-
credibility of the
substantially
by subsequent
court to assess the
undermined
decisions,’
of the test for admit-
part
by
witness as
or
our own
Supreme
court
Court
interest,
rep-
ting statements
en banc.”
supervening rulings
Lee v.
minority
(D.C.
resents a
view.4
822, 828
United
668 A.2d
1995) (citation omitted)
Frendak,
(quoting
Revisiting
Decision
B.
a Prior
27);
Of
“a
cannot
Court have invalidated the first
ly
prior ruling
follow
in the face of
[a]
They
Laumer.
are mistaken. A division
enunciat
clearly controlling doctrine later
”
of this court addressed this same
Supreme
ed
Court.’ Teoume-Les
States, concluding
v.
Gilchrist
United
sane
(alteration
appellant
had cited “no decision
*6
in original) (quoting
364,
Supreme
from the
Court or this court
v.
Frendak
(D.C.1979)). Moreover,
declaring that a trial court
panel
explicitly
which
379 n. 27
“
follow,
witness,
obliged
inflexibly,
credibility
‘to
a rul-
determines the
of a
is not
J.,
ron,
892,
(N.D.2010) ("the
696,
(1995) (Kennedy,
Appellants present us
no cases
this evidence to the jury. See
addressing
either court
Illinois,
Taylor
484 U.S.
They
since
decided.
Gilchrist was
assert
(1988) (“The
5.Ct.
dictum or an alternative holding, it demon- judges strates that three other of this In supplemental brief, pro se persuaded court were not that the ratio- appellant argues the trial nale of Laumer has been undermined. court erred when it provide declined to The advisory comment in the committee what he terms the “Initial Aggressor” in note to the amended federal rule has been struction. really What he asked for was decided, issued since Gilchrist was but we an explaining instruction when an initial do not consider that development sufficient aggressor may regain his right to self- to undermine the analytical framework of defense withdrawing from a conflict. one holdings. of our en banc Just as the explained, Gilchrist court without a you Su- was told that “[i]f find that preme Court decision or a supervening en the aggressor, defendant was the he can- ruling banc from this court that rely upon under- the right of self-defense to it, mines good Laumer remains justify law.5 his use of force.” See Criminal Appellants cite several cases where we have opinion dictates of an en banc of this court. danger Brisbon, commented on the of a contrast, trial court In the trial court added *7 "usurp [ing] jury’s prerogative the of deter its own assessment to the test for States, mining credibility.” Boyd v. United admitting an excited utterance. (D.C.1984). See, e.g., A.2d Bris bon v. United Hager significant 6. Mr. had a record of im- (D.C.2006) (trial finding court erred in peachаble convictions and failed to mention "appellant's longtime friend” was "not a reli exculpatory the previous declaration in a testify able witness” to about an excited utter lengthy investigators. statement to He also requirements ance that met the foundational relationship had a close with the accused and admission); for Newman United Joyner knew that Mr. Although was dead. it A.2d (highlighting the Hager’s testimony ruled that Mr. was incredi- evaluating distinction reliability between ble, the trial court found that the other two proffer evaluating of a and reliability of prongs Joyner, of Laumer were met. the de- witness because the of the wit clarant, unavailable, was dead and therefore decide). jury ness’s was fоr the to and there were though appellants Even making are similar support a claim that he was the second objections constitutional of shooter. different, very the situation here is where the trial court was bound to follow the facts, withdrawal instruction on those tak- for the District Co- Jury Instructions rev.2013). 9.504(A) (5th in ing light them the most favorable Mr. lumbia, ed. No. McCorkle.” clarified that Judge “[m]ere Leibovitz ... more the defendant words without Judge only Leibovitz added that “the See id. aggression.” constitute do not arguably other moment where withdrawal because appropriate instruction was This when, according could even be discussed is evidence, including ample there was McCorkle, to Mr. he has shot and killed testimony, bеgan that he own McCorkle’s self-defense, people they two are both shooting. dead, and he ... visibly certainly and fleeing.” agree now that there was no We to the standard “initial supplement A factual basis for a withdrawal instruction instruction, “Deadly entitled aggressor” in this case. See Jones v. United Withdraws,” ex- Defendant Force Where (D.C.2010)(“A trial court aggressor] “if who plains that one [is ‘may properly give decline to [a defen- faith, good ... ... later withdraws requested] dant’s instruction where there words or communicates withdrawal ” (altera- legal is no or factual basis it.’ actions, deadly use force to save s/he original)). tion in danger imminent himselfiherself bodily death or serious harm.” Criminal any event, In give the failure to Jury Instructions for the District of Co- withdrawal instruction would matter rev.2013) 9.504(C) (5th lumbia, No. ed. instruction, aggressor if the initial as giv- (brackets request- in original). McCorkle en, caused the to believe that McCor- instruction, but Leibovitz ed this kle right forfeited his to act self-defense it, give explaining that “no declined to by sparking the verbal conflict at the gas ... supports theory version of the facts station attendant’s booth. But there is no of withdrawal] here[.]” reason to believe that the instruction would have had this effect. The was argues that he was entitled to McCorkle more ... told that “mere words without do instruction because he the withdrawal Moreover, aggression.” not constitute every attempt Hough “made to calm down pаrties argued none that the vio- disengage from the verbal altercation. lence before started walk- began this, Failing physically disengaged [he] ing away. aggressor Because the initial apologized from the altercation when he properly given instruction and there and, attempting Hough’s to shake after was no factual basis for a withdrawal in- hand, gas left the BP Station and set off struction, reject appellant’s argument. we on foot in the direction of his home.” However, acknowledges he mat- “[i]t IV. Other Claims was at aggressor ters little who initial A. The New Year’s Eve Assault shooting BP Station because the Gas During testimony, his direct place did not take there.” McCorkle’s *8 analy- Ray Leibovitz’s McCorkle said that Harlenia was “like statement echoes they little him and that were provide She declined to the withdraw- cousin” to sis. because, family.” like “[g]ood al instruction while McCorkle was on terms. We were cross-examination, discussed his away, yet, there “as no con- On he walking was time possession to or of various firearms over physical flict from which withdraw the semi to the self-defense and said that he had traded confrontation as which in homicide pistol therefore “con- automatic he used the issue has arisen.” She then denied that that there is no basis for the revolver. McCorkle clude[d] what the prior legitimate point prosecutor had a revolver the stand he had ever attemрting by identifying was to make asked whether government murders. The referring age. Harlenia to her More- and “New a revolver on Year’s possessed he over, questioning the about whether 31st, 2007, Eve, January into December had a revolver six months be- McCorkle and, 1st, he not said did 2008?” McCorkle the shootings tangential probative fore had was over- objection after his counsel’s value, best, light at of other evidence. ruled,7 engaged in the fol- prosecutor the But, assuming questions even that the and lowing questioning: effect, prejudicial answers had some the You not have a revolver? Q: did testimony heard four weeks of that A: No. randomly included evidence that McCorkle Q: point did not that revolver at You ocсasion, parked shot at a car on another anybody? assaulted and threatened witnesses the A: No. case, acknowledged multi- possessing Q: Ray, Harlenia cor- circumstances, You did know ple firearms. In these rect? limited reference to the New Year’s Eve 2007 assault did not constitute reversible A: Yes. Precious. error. Eve, she was 14 Q: And on New Year’s
years old. Joyner B. The Death of Mr. A: Thirteen or 14. additionally argues Clinkscale moved for a subsequently mis- the trial court abused its discretion when it trial, arguing government “asking that the prevented him eliciting testimony from Ray about Harlenia in the same line of Trey Joyner was killed law en questioning impression leaves the that he that, forcement *9 during night triple its cross-exаmination of McCor- of [the homicide.]” however, my perspective, is no evi- the case. From limiting “[T]here instruction: ei- dence, suggestion that any determining admissibility information or test for the in this case had the defendants ther of of evidence under the statement Trey the death of to do with anything exception explicitly that re- repeated Joyner.” This admonition quires “general the court to assess the jury.8 to the during the final instructions credibility” goes beyond of the witness gatekeeping function of the court and Trey Joyner’s The circumstances province jury. too far into the of the strays crimes unrelated to of the death were of Laumer in the Applying prong Any possibility remote that charged here. сase, considered Judge Leibovitz for jury would have blamed concluding number of factors before that by the trial killing dispelled him was credible, including was not the witness merit in We see no court’s instruction. of impeacha- witness’s considerable record instruction, to claim that this Clinkscale’s convictions, ble his failure to mention the than agreed, did more harm which he fact, exculpatory previous declaration in a to think that In it is fanciful good. jurors spec- lengthy investigators, to statement to and his the instruction would cause designed exact manner it was relationship ulate in the close with the defendant. prevent. to appropriate Those facts are all consider- assessing general crеdibility ations for
V. Conclusion of a witness and have led the Superior determine, here, judgments of the Court as the trial court did hereby are lying the witness was about fact that ever made. But to the statement was Affirmed. prevent hearing testimony potentially exculpatory about a statement WASHINGTON, Judge, Chief reliability that otherwise meets the test for concurring: of Laumer prong deprives under the third affirming I concur in the decision While opportunity the defendant an have decision, Laumer the trial court’s because jury perform its traditional role of controlling panel is still law to which this making credibility determinations bound, separately to respectfully I write weighing the evidence. my about the continued express concerns of the first of Laumer to application into the prov- To avoid such an intrusion regarding admissibility decisions jury, but remain faithful to the ince of in- out-of-court statements ensure that obligation trial court’s terest. by the rehable evidence is considered court, prong, I believe Laumer’s third Fisher, concurring opinion, his requires which the defendant to demon- a trial great distinguish makes efforts to strate pur- court’s determinations of the clearly indicate the trustworthiness admissibility jury’s from a deter-
poses of declaration, fact-finders in out-of-court is sufficient to sat- minations of as Perhaps "[y]ou Joyner’s it would have role Mr. death.” 8. The trial court instructed Trey person that a named say: heard evidenсe have been clearer to "Neither defendant Joyner longer evi- is no alive. There is no anyone any- with them had nor associated anyone defendant or associ- dence that either Joyner.” thing to do with the death of Mr. played any either defendant ever ated with *10 isfy gatekeeping purpose.1 admissible.”); the trial court’s ... whether evidence is Ad- preferred approach among visory This is the Committee Note to 1972 Proposed 104(a) (“To majority of federal and state courts. It Rule the extent these comports also with the revised commen- factual, inquiries judge are acts as a tary by Advisory fact.”). Committee on Evi- trier of Appellants’ singular focus majority,2 dence Rules citеd and a propriety judge on the of a making credi- holding series of decisions this court bility determinations misunderstands this credibility that trial court assessments are (in- basic distinction. The Laumer test improper excluding as a basis for testimo- course, cluding, of its prong) first is used ny being from admitted into evidence.3 particular to determine whether evidence is competent' and admissible.
Accordingly, urge I the court to consid- er, banc, en whether the first prong of the We have “broad latitude under the Con- Laumer test should continue to be a factor stitution to establish rules excluding evi- trial courts to consider when determin- dence from criminal trials.” Holmes v. ing admissibility of against statements Carolina, South 547 U.S.
penal interest.
(2006);
S.Ct.
FISHER, Judge, concurring: Associate is the authority final for establishing the my colleagues Because evidentiary have called for Superior rules for the Court of Columbia.”). reconsidering the first of I the District Despite of latitude, append these brief explain remarks to the Constitution forbids the cre- “ appellants’ upon attack Laumer is flawed. ation of evidentiary rules that ‘infring[e] long It has been the rule “that preliminary upon weighty interest of the accused’ evidentiary questions ... such as the ad- and are ‘arbitrary or disproportionate to ” missibility of evidence are within the con- the purposes they are designed to serve.’ Holmes, trol judge. However, of the trial 324-25,126 these 547 U.S. at S.Ct. 1727 (alteration questions (some must distinguished be original) cred- quo- internal ibility weight omitted). assigned to be to compe- context, tation marks In this tent and admissible testimony.” arbitrary Fowel v. rules are rules that “excluded Wood, (D.C.1948); 62 A.2d important see defense evidence but ... [do] 104(a) (“The Fed.R.Evid. court must de- not any legitimate serve interests.” Id. at any preliminary 325,126 cide questions about S.Ct. 1727. 1. See Laumer v. United 409 A.2d credibility statement on the witness's would (D.C.1979) (stating proponent that the of usurp determining role of the credi- proffered declaration witnesses.”). bility testifying of “significant must overcome a burden” to clearly demonstrate the trustworthiness of the 3.See, e.g., Brisbon v. United declaration under the require- corroboration (D.C.2006) (holding ques- that the ment). credibility tion of of a witness was for the consider, court, not the trial in the context Advisory Committee Note on the 2010 proffered testimony under the excited utter- 804(b)(3), Amendment U.S.C.A., to Fed.R.Evid. rule); exception ance hearsay to the Newman (West 2012) ("In p. assessing v. exist, whether (stressing evaluating reliability that in prof- some courts have focused on the testimony, fered a trial court must the witness not seek to who relates the statement is not a proper reliability factor evaluate of the for the court to consider witness because the assessing corroborating of the excluded circumstances. To witness’ base hearsay admission or exclusion of a jury, judge). was for the not for the *11 RUIZ, undoubtedly legitimate Judge, interest of Senior concurring:
One
evidentiary rulеs is to exclude unreliable
join
I
in
Washington
Chief
ex-
Scheffer,
States v.
528
evidence.- United
pressing the view that
the issue of the
803, 309,
1261, 140
118 S.Ct.
L.Ed.2d
U.S.
wisdom,
constitutionality,
indeed the
of the
(1998) (“[T]he exclusion of unreliable
prong
first
in the Laumer
ripe
test is
for
objective many
principal
evidence is a
review
the court en banc. Laumer v.
rules.”).
the im-
evidentiary
Recognizing
(D.C.
190,
United
409 A.2d
objective,
exception
of this
our
portance
1979) (en banc). As the authorities cited
hearsay
against
rule for statements
in Judge
opinion
Fisher’s
for
court
requires
showing
that “the
clear,
make
the tide
decisively turning
is
declarant,
fact,
in
made a statement.”
against
evidentiary
an
permits
rule that
Laumer,
adopted
tion that noting witness was that is
“essentially determination
that should jury”); have been left to the
Brown v. United
(D.C.1999) (“Conditioning bias cross-exam-
ination on ability the court’s to assess the
credibility of the source of alleged [an]
motive [to runs too close to fabricate] officers. He notes on New pointed revolver at Year’s [her] trial, “[t]hroughout perva there was a Eve.” and, sive air of of witnesses” intim[id]ation context, mysterious “[i]n reference agree We with the trial court that “it’s Joyner many the death of Mr. raised not in the gun being record that the was questions.” He therefore contends that pointed Ray.” at Harlenia The had there prejudice was a “real risk of raised discussion of the motion heard jury being speculate wh[y] left to limine, supra note see without this such a figure central to the case was de information, background meaning ceased explanation with no as to the cause this exchange might entirely not have been of his death.” context, clear. the jury Without this could varying impressions, have been left with government responds it was including Ray died, that Harlenia was a witness Joyner particularly irrelevant how to an assault. are at a agreed following We loss under- because Clinkscale to the kle, preclude objected immediately McCorkle moved in limine to his counsel to the government asking Ray, question’s subsequently Harlenia as it relevance. The court that, grand jury, did in the about an assault on ruled "to the extent that Counsel is not allegedly planning questions New Eve Year's 2007 in which he to ask more ... about Eve,” pointed pistol pulled happened an unloaded at her and what on New Year’s the testi- trigger. agreed, ruling mony The trial court relevant because McCorkle's extremely inflammatory explanation that it was "an inci- “whole about how he came to very probative closely dent with low value." When have a revolver associated with [w]as government gun explanation mentioned New Year’s Eve he had the [which] his