Moghalu v. United States ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CF-219
STANLEY I. MOGHALU, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CF1-13229-15)
(Hon. José M. López, Trial Judge)
(Argued December 12, 2019 Decided November 18, 2021)
Jonathan Zucker for appellant.
Anne Y. Park, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the briefs were filed, Elizabeth Trosman, and
Gilead Light, Assistant United States Attorneys, were on the brief, for appellee.
Before EASTERLY, Associate Judge, and FERREN and FISHER, ∗ Senior Judges.
Opinion for the court by Senior Judge FERREN.
Concurring opinion by Associate Judge EASTERLY at page 38.
_______________
∗
Judge Fisher was an Associate Judge of the court at the time of argument.
His status changed to Senior Judge on August 23, 2020.
2
FERREN, Senior Judge: A jury found appellant, Stanley Moghalu, guilty of
first-degree premeditated murder (with aggravating circumstances) and related
charges for the shooting death of Ronald Smith and the non-fatal shooting of Charles
Harrison. 1 Moghalu appeals several trial court rulings, made both before and during
trial. For the reasons that follow, we reverse Moghalu’s convictions and remand for
a new trial.
I. Facts and Proceedings
According to the government’s evidence, on November 14, 2011, Andre
Hockaday took Smith and Harrison to 21st and M Street, Northeast, to purchase
PCP. While there, Dwayne Williams approached Smith and shot him in the head to
_______________
1
Moghalu was charged in an 11-count indictment with conspiracy to obstruct
justice, D.C. Code §§ 22-722(a)(2)(A) (2012 Repl.), -722(a)(4), and -722(a)(6);
first-degree premeditated murder while armed with aggravating circumstances,
§§ 22-2101 (2021 Supp.), -4502 (2021 Supp.), and -2104.01(b)(9) (2012 Repl.);
assault with intent to kill while armed, §§ 22-401 (2021 Supp.), -4502; aggravated
assault while armed, §§ 22-404.01 (2021 Supp.), -4502; three counts of possession
of a firearm during a crime of violence, § 22-4504(b) (2021 Supp.); unlawful
possession of a firearm by a convicted felon (“FIP”), § 22-4503(a)(1) (2021 Supp.);
obstructing justice (witness/officer), § 22-722(a)(2)(A); obstructing justice
(injury/property damage), § 22-722(a)(4); and obstructing justice (due
administration of justice), § 22-722(a)(6).
3
death, while Williams and a second gunman — allegedly Moghalu — shot Harrison
several times (he survived). The shootings were apparently retaliation against Smith
for “snitching” on David Warren, an incarcerated felon who was friendly with
Moghalu, Williams, and Hockaday. 2 Moghalu was arrested in 2015 and charged in
the shootings of Smith and Harrison.
Moghalu’s jury trial began on September 25, 2017, on all counts except for
the FIP charge, 3 which was tried by the court at Moghalu’s request. On October 18,
Moghalu was found guilty on all counts. On appeal, he contends that the trial court
erred by: (1) requiring defense counsel to disclose to the government his third-party
perpetrator (“Winfield”) defense 4 before trial; (2) allowing the government to elicit
lay testimony about Moghalu’s bad character without a proper foundation; and (3)
precluding recross-examination of a government witness.
_______________
2
Williams and Hockaday were arrested in 2014 and entered into cooperation
agreements with the government, which required their pleading guilty to various
charges related to the shootings.
3
See supra note 1.
4
See Winfield v. United States, 676 A.2d 1, 5 (D.C. 1996) (en banc) (evidence
that third person committed crime charged is relevant and thus admissible at trial if
facts or circumstances tend to indicate a “reasonable possibility” that such person
committed charged offense).
4
II. Third-Party Perpetrator Defense
A. Preface
We preface the discussion with a summary of our ruling. A third-party
perpetrator (TPP) defense is an effort to demonstrate, through witness testimony,
that “another person or persons committed the crime alleged,” 5 with admissibility
committed to trial court discretion. 6 According to Winfield, resolution of TPP
“admissibility questions . . . should normally be resolved as a preliminary matter
before trial,” 7 in order to avoid unfair surprise and otherwise facilitate efficient trial
court administration. 8 Winfield, however, did not mandate pretrial disclosure of a
_______________
5
Id. at 2 (footnote omitted).
6
See Jordan v. United States, 722 A.2d 1257, 1262 (D.C. 1998) (referencing
“trial court’s discretion in this area”); Winfield, 676 A.2d at 5 (observing that “in the
context of third-party perpetrator evidence, . . . the trial judge will have discretion to
exclude marginally relevant evidence”).
7
Id. at 6 n.6.
8
See Jordan, 722 A.2d at 1262 (discussing importance of court’s exercising
discretion to rule on proffered TPP defense, “at least provisionally, before trial
begins,” to avoid catching “the trial judge unaware”).
5
TPP defense, let alone disclosure to the government (as the trial court ruled).
Moreover, our Bowman 9 decision precludes court-ordered pretrial disclosure of any
affirmative defense, absent a controlling statute, judicial decision, or Superior Court
rule. 10 Bowman, however, does not preclude pretrial TPP disclosures to the trial
court for discussion ex parte, or — if the defense agrees — to the government by
way of a motion in limine. 11 Neither situation applies here. Bowman, accordingly,
requires reversal.
B. The Defense
Approaching the court ex parte before trial, counsel for Moghalu announced
that: (1) he “wanted to alert the Court” that he intended to elicit TPP evidence from
a “cooperating witness” for the government, who “was on the scene”; (2) the
cooperating witness and “X” (the putative TPP) were “very close” with a David
_______________
9
Bowman v. United States, 412 A.2d 10, 11-12 (D.C. 1980) (per curiam)
(reversing as a “usurpation of power” the trial court’s sua sponte order that counsel
disclose before trial “the general nature of the defense,” absent a controlling statute,
judicial decision, or Superior Court rule).
10
See supra note 9.
11
See Winfield, 676 A.2d at 6.
6
Warren, whom the cooperating witness and X wanted to protect from conviction of
another murder “by eliminating the victim” in this case (later disclosed as Charles
Harrison) “so he could not be a witness against Mr. Warren”; (3) thus, “for strategic
reasons” counsel did not want to disclose the defense to the government before trial;
and, in any event, (4) he did not think “pretrial clearance [of the TPP defense] is
required.” To which the judge replied, “I think I need to take a second look at
Winfield.” 12
The next day, after reviewing Winfield, the court said, “I think it would be
appropriate and fair to give the Government an opportunity to have a say” on
whether the TPP defense “should be permitted or not; in other words, it needs to be
fleshed out.” In particular, “as Winfield has said,” the government should have “the
opportunity . . . to rehabilitate its victim.” 13
_______________
12
See supra note 4.
13
In granting the government “the opportunity . . . to rehabilitate its victim,”
the court presumably was referring to the government’s possible “need to present
‘rehabilitative’ evidence [at trial] disassociating the victim from other persons
allegedly harboring a motive to harm” the victim. Winfield, 676 A.2d at 5.
7
In response, counsel for Moghalu detailed his intention to ask Williams, a
cooperating witness for the government, about “Jay Rock” (previously identified as
“X”), 14 who was a friend of Warren and Williams, was “on the scene” when
Williams and another shot Harrison, and fit the description of the second shooter
“given by the surviving victim [Harrison] much more closely than does Mr.
Moghalu.” Counsel proffered that Jay Rock had the “same motivation to commit this
murder as Mr. Williams did, i.e., loyalty to their mutual friend, David Warren.” And,
counsel again asked the court not to require disclosure of this line of questioning to
the government, this time elaborating that he did “not want the Government to have
the strategic advantage of preparing Williams for that cross-examination.” Counsel
suspected that Williams would “come up with a fabricated explanation of why it
wasn’t Jay Rock.” Moreover, stressed counsel — without citing authority —
“clearly, the defense is not required to disclose its defense.” The court advised
counsel that, “under Winfield, I believe you are required to disclose a third-party
perpetrator,” and that “the Government should participate in that discussion because
[W]infield specifically says motivation is not enough.”
_______________
14
The same individual is referred to interchangeably as “Jay Rock” and “J-
Rock” throughout the proceedings.
8
Counsel agreed that “motivation isn’t enough; you have to have opportunity”
to commit the crime. But, he added, “[o]pportunity isn’t going to be contested here
because the Government’s witness puts Jay Rock on the scene.” Whereupon the trial
court replied, “I’ve got to give the Government the opportunity to say that. Now you
are arguing for them.” Counsel responded, “I’m just making the representation. It
won’t be disputed that [W]illiams numerous times said Jay Rock was there.” After
which the court ruled: “I’m not going to permit it unless it is fleshed out, [and] the
government has an opportunity to rebut it.”
The ex parte proceeding ended; the prosecutors were called to the courtroom;
the court explained that a pretrial TPP hearing would then take place; and the court
concluded by saying: “[I]t’s my belief, reading Winfield, that the Government
should be permitted an opportunity to weigh in on whether this third-party
perpetrator evidence should be presented.” Left with no alternative, counsel for
Moghalu spelled out his Jay Rock defense, after which the prosecutor said he would
do some “digging” overnight to ascertain the government’s position “with respect to
the Winfield proffer.”
Thereafter, on the first day of trial, the parties informed the court that, after
discussing Winfield, they agreed that counsel would develop Moghalu’s TPP defense
9
“through cross-examination of a government witness.” According to its brief, the
government has never disputed that “appellant’s proffer satisfied the Winfield
standard” — “an admittedly ‘low bar’ for admission.” 15
C. Pretrial Disclosure to the Government
1. TPP Ruling as a “Preliminary Matter”
As we noted in Winfield, a TPP “issue arises at the intersection of the
defendant’s constitutional right to an opportunity to present a complete defense, and
the obligation of the trial court preliminarily to determine the relevance of proffered
_______________
15
The trial court never evaluated whether Moghalu’s proffer, with the
following elements, satisfied the prima facie requirements for a TPP defense: (a) the
alleged TPP, Jay Rock, was present “on the scene” at the time of the shooting, along
with his friend, cooperating witness Dwayne Williams, who was one of the two
individuals who shot Harrison; (b) Jay Rock was motivated, like Williams, to protect
David Warren from Harrison’s likely testimony at Warren’s murder prosecution; (c)
Jay Rock’s presence with Williams “on the scene” gave him the “practical
opportunity” to shoot Harrison, Winfield, 676 A.2d at 5, and (d) Jay Rock had a
closer resemblance to the shooter than Moghalu, according to the victim, Harrison.
Taken together, if true, these proffered facts — to be elicited only through cross-
examination of Dwayne Williams — appear consistent with at least a “reasonable
possibility,” id. at 4 (italics omitted), that Jay Rock, not Moghalu, committed the
charged offense. The government never contended otherwise.
10
evidence and weigh its probative value against the potential it creates for undue
prejudice.” 16 Thus, to assure that the nexus between the proffered TPP and the crime
is sufficiently clear to justify the defense, Winfield applied the same formulation for
relevant evidence that the trial court “generally does in the criminal context”:
whether the TPP “evidence ‘tend[s] to indicate some reasonable possibility that a
person other than the defendant committed the charged offense’ . . . .” 17
In announcing this test, Winfield also observed that a TPP defense, at least
potentially, “risks misleading the jury by distracting it from the issue of whether this
defendant is guilty or not.” 18 Moreover, the “risk of [jury] confusion may be
exacerbated if the government, in response to the defense proffer, asserts the need
to present ‘rehabilitative’ evidence [at trial] disassociating the victim from other
persons allegedly harboring a motive to harm her.” 19 This can lead to a trial
management problem. Unless admissibility of TPP evidence is addressed before
_______________
16
Id. at 2 (internal citations omitted).
17
Id. at 5 (quoting (Woredell) Johnson v. United States, 552 A.2d 513, 516
(D.C. 1989) (emphasis added)).
18
Id.19
Id.11
trial, the clash between the defendant’s right to present a complete defense and the
government’s prerogative to contest TPP evidence presumably could catch the trial
judge “unaware,” as we warned in Jordan. 20 It also might risk “distracting” the jury
with a “trial-within-a-trial” of the TPP evidence, as we stressed in Winfield 21
—a
foreseeable result that the trial judge must “retain full authority to prevent . . . .” 22
Accordingly, we concluded that, “[a]s with admissibility questions under Drew v.
United States, 23 the issue of whether third-party perpetrator evidence will be
_______________
20
Jordan, 722 A.2d at 1262.
21
Winfield, 676 A.2d at 5.
22
Id.23
331 F.2d 85, 89-90 (D.C. Cir. 1964) (explaining that while evidence of other
crimes “is inadmissible to prove disposition to commit crime, from which the jury
may infer that the defendant committed the crime charged,” such evidence is
admissible for a “substantial, legitimate purpose” such as to show motive, intent,
absence of mistake or accident, common scheme or plan, or identity); see (William)
Johnson v. United States, 683 A.2d 1087, 1100 n.17 (D.C. 1996) (en banc) (“[T]he
trial court has the discretion to require parties to disclose in advance their intention
to use evidence of other crimes, and in any event a prosecutor may find it prudent to
afford such notice. Such notice may obviate any possible claim of unfair surprise
and may avoid a request for continuance.”).
12
admitted should normally be resolved as a preliminary matter before trial,” 24 at least
“provisionally,” 25 until final resolution at trial.
At the ex parte hearing before trial, Moghalu did not ask for pretrial resolution
of his TPP defense, but counsel decided to “flag it” in advance “rather than delay the
trial.” The trial court then decided to make a pretrial ruling, presumably attentive to
Winfield’s reference to a TPP ruling as a “preliminary matter.” 26 As explained above,
the court concluded, after discussion with counsel, that “under Winfield, I believe
you are required to disclose a third-party perpetrator” to the government at the
pretrial hearing.
2. Moghalu’s Contention
_______________
24
Winfield, 676 A.2d at 6 n.6.
25
Jordan, 722 A.2d at 1262. Realistically, in fact, every pretrial decision to
allow a TPP defense based on an ex parte proffer by the defense is provisional,
whether the court says so expressly or not. Whenever the trial court makes such a
pretrial decision, it is inherently tentative until the government has an opportunity at
trial to contest admissibility, as well as to challenge the evidence before the jury that
supports an admitted TPP defense.
26
Winfield, 676 A.2d at 6 n.6.
13
At the ex parte pretrial hearing, counsel for Moghalu asserted, without citing
authority, that “clearly, the defense is not required to disclose its defense.” However,
instead of inviting argument on this contention, the court immediately advised
counsel that Winfield required disclosure of Moghalu’s proffered TPP defense to the
government at a pretrial hearing. Although defense counsel, at that point, did not
interject an explanation describing the reasons for his objection to pretrial disclosure
— including whether he was relying, in part, on constitutional grounds — there is
no question that Moghalu was objecting to the trial court’s claimed authority to
require the contested pretrial disclosure. Moreover, the government offers no
challenge that would limit the range of Moghalu’s arguments to this court.
On appeal, Moghalu relies primarily on our decision in Bowman, 27 an
interlocutory appeal during a robbery prosecution. We barred the trial court from sua
sponte requiring pretrial disclosure of “the general nature of the defense” — a bar
(treated as mandamus) covering all “general issues,” meaning we banned court-
_______________
27
See supra note 9.
14
ordered pretrial disclosure of any and every “affirmative defense.” 28 In Moghalu’s
case, the trial court required pretrial disclosure of a specific — and inherently
discretionary — TPP defense. As Bowman recognized, moreover, not every defense
is shielded from pretrial disclosure and related government participation (specifying
alibi and insanity). 29 We indicated, however, that the authority to justify government
discovery of the defense in criminal cases is limited to “[s]tatutes, judicial decisions
and the rules of the Superior Court” 30 — none of which, argues Moghalu, supports
the court-ordered pretrial disclosure here.
We do not read Bowman as permitting the trial court to lawfully issue “a
judicial decision” in a pending proceeding that authorizes pretrial disclosure of a
TPP defense to the government. In our C.A.P. decision, 31 this court held that,
_______________
28
Bowman, 412 A.2d at 11-12 & nn.1, 3 (The trial court, however, permitted
the defense of “alibi or any affirmative defense . . . through the testimony of the
appellant himself” in the event that appellant would not otherwise disclose his
defenses, and it further “permitted defense counsel to give an ex parte proffer of the
anticipated defense to preserve the record for appeal.”).
29
See id. at 12.
30
See supra note 9.
31
In re C.A.P., 356 A.2d 335 (D.C. 1976).
15
although the Superior Court may adopt procedural rules, it “exceeded its statutory
grant of power” by “adopt[ing] a rule which abridge[d] a substantive right.” 32
Presumably a judicial decision abridging a substantive right would fare no better.
Moreover, the authority for a “judicial decision” governing discovery of the defense
referenced in Bowman was Brady, 33 a preexisting ruling, the only kind that, in
context, makes sense. Finally, we emphasized in Winfield that, in considering a
defendant’s TPP proffer, “the trial court must resolve close questions of
admissibility . . . in favor of inclusion, not exclusion,” in part because “a substantial
proffer that a third person committed the offense implicates the defendant’s
constitutional right to ‘a meaningful opportunity to present a complete defense.’” 34
_______________
32
Id. at 343, 344
33
Brady v. Maryland, 373 U.S. 83 (1963) (requiring the government to
provide the defense with certain pretrial discovery). See Bowman, 412 A.2d at 12 &
n.5.
34
Winfield, 676 A.2d at 6-7 (quoting Crane v. Kentucky, 476 U.S. 683, 690
(1986)).
16
Bowman, however, did not expressly say that its barrier to court-ordered
pretrial disclosure of “the general nature of the defense” 35 was a constitutional
ruling; rather, we concluded that “the trial court’s action amounted to a[] usurpation
of power”; 36 “the trial judge’s order was outside the scope of express authority” 37 —
at law, commonly called ultra vires (“beyond power”). 38 Bowman nonetheless was
clear, providing Moghalu’s fundamental argument: absent a statute, court rule, or
preexisting constitutional decision authorizing court-ordered pretrial disclosure of
an affirmative defense, such disclosure would fall outside the court’s authority to
require. 39
_______________
35
Bowman, 412 A.2d at 12.
36
Id.37
Id.Merriam-Webster’s Collegiate Dictionary, 11th ed., 1357 (2003) (“beyond
38
the scope or in excess of legal power or authority”).
39
Citing judicial decisions from this court and elsewhere, Moghalu also
argues that the trial court’s pretrial disclosure order was unconstitutional, an issue
we need not reach. See Middleton v. United States, 401 A.2d 109, 115-16 (D.C.
1979) (absent relevant statute controlling criminal discovery, trial court lacked
authority to order defense counsel to surrender evidence to government gathered by
defense investigator, given “proper respect” required for “Fifth Amendment’s
guarantee against self-incrimination” and “Sixth Amendment’s guarantee of
effective assistance of counsel”); United States v. Wright, 489 F.2d 1181, 1184-85,
1195 (D.C. Cir. 1973) (reversing convictions where trial court ordered defense
investigator to disclose to government a report he had prepared based on witness
17
3. The Government’s Argument
Interestingly, on appeal, the government does not argue that the trial court
correctly concluded that Winfield “required” its pretrial participation. Instead, the
government contends that the trial court soundly exercised its discretion 40 to require
pretrial disclosure of Moghalu’s TPP defense. After re-characterizing the court’s
ruling as a discretionary decision, the government urges us to validate the court’s
perceived need to include the prosecutor at a pretrial TPP hearing, in order (says the
government) “to make an informed decision on the admissibility of this [TPP]
evidence.”
_______________
interviews because “[t]he defendant has a right under the Fifth Amendment to
compel the state to investigate its own case, find its own evidence, and prove its own
facts. The defense has no duty to help the prosecution convict the defendant.”); see
also United States v. Hernandez-Meza, 720 F.3d 760, 765 (9th Cir. 2013) (unless
court rules and precedents require advance notice of a defense to the government,
e.g., insanity and alibi, the defendant “is entitled to remain silent as to what defense
he will present, and the government must anticipate any issues he might raise”).
40
See generally (James) Johnson v. United States, 398 A.2d 354, 365 (D.C.
1979) (explaining this court “must determine, first, whether the exercise of
discretion was in error and, if so, whether the impact of that error requires reversal.
It is when both these inquiries are answered in the affirmative that we hold that the
trial court ‘abused’ its discretion” and that reversal is required).
18
The government’s failure to dispute Moghalu’s contention that the trial court
erred in believing the pretrial TPP disclosure was “required” might lead one to argue
that the government implicitly has conceded error, allowing us to move directly to
harmless error analysis. On the other hand, because the government argues for
legality of the pretrial disclosure on another ground — the sound exercise of trial
court discretion — we should account for this alternative argument, rather than fold
it immediately into a comprehensive treatment of harmless error, especially because
the trial court offered a reasoned, not merely automatic, basis for its decision. 41
As the first step in its analysis, as we have noted, the government declines to
contest Moghalu’s assertion that Winfield does not “require” pretrial disclosure of a
TPP proffer. Next, the government says — and we agree — that admissibility of
_______________
41
As noted earlier, during the pretrial ex parte conference with defense
counsel — before the trial court announced its belief that Winfield “required” pretrial
disclosure of an alleged third-party perpetrator — the court offered its initial view
of the situation in discretionary language: “I think it would be appropriate and fair
to give the Government an opportunity to have a say” before trial on whether the
TPP defense “should be permitted or not; in other words, it needs to be fleshed out.”
In particular, “as Winfield has said,” the government should have “the
opportunity . . . to rehabilitate its victim.” See supra note 13 and accompanying text.
Based on these statements, it seems likely that, absent the trial court’s understanding
that Winfield “required” pretrial disclosure, the court — exercising its discretion —
would have invited the government’s participation.
19
TPP evidence at trial, under Winfield, is “committed to the trial court’s discretion.” 42
The government then argues that the trial court’s pretrial disclosure order also should
be evaluated as an exercise of discretion (implicitly a subset of the overall
admissibility determination), and that, supported by Winfield’s Drew analogy, the
court did not abuse its discretion because (in the government’s words) the court
“needed” the government’s pretrial participation “to make an informed decision on
the admissibility of this [TPP] evidence.”
Finally, the government maintains that, even if the court did abuse its
discretion, the government has carried its burden of proving that the abuse was
“harmless” under the non-constitutional standard elaborated in Kotteakos
(“judgment was not substantially swayed by the error”). 43
4. Analysis
_______________
42
(James) Johnson, 398 A.2d at 363; see supra note 40 and accompanying
text.
43
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
20
We are confronted, therefore, by two quite different contentions. Moghalu
leads with an argument, based primarily on Bowman, 44 that the trial court erred when
issuing the pretrial disclosure order. He then cites Kotteakos 45 to support his
contention that the error was not harmless. 46 The government, to the contrary,
sidesteps Bowman by relying on Winfield’s analogy that likens a pretrial TPP ruling
to a pretrial resolution of Drew (other crimes) issues, 47 allegedly allowing the trial
court — unconstrained — to issue the pretrial disclosure order as a sound exercise
of discretion. 48 The government’s analogy to Drew, however, coupled with
references to our case law urging resolution of TPP issues before trial, 49 does not
_______________
44
See supra note 9.
45
See supra note 43 and accompanying text.
46
In arguing for reversal based on constitutional, as well as non-constitutional
grounds, Moghalu maintains that the trial court’s error would not be harmless under
either Chapman v. California, 386 U.S. 18, 24 (1967) (“harmless beyond a
reasonable doubt”) or Kotteakos (see supra note 43 and accompanying text).
Nevertheless, he acknowledges that we need not reach the constitutional issue: “This
court need[] not decide which standard [for determining harmless error] applies, . . .
because even under Kotteakos the government has failed to meet its burden.”
47
See supra note 23.
48
See supra note 41.
49
See Jordan, 722 A.2d at 1262; Winfield, 676 A.2d at 6 n.6.
21
resolve the pretrial issue before us. These authorities neither mandate pretrial
resolution nor add any impetus toward involvement of the government at a pretrial
TPP hearing. Therefore, although we agree with the government that admissibility
of TPP evidence at trial is committed to trial court discretion, we cannot agree that
this necessarily means the trial court has discretion to order the government’s
participation at a pretrial assessment of a TPP proffer’s sufficiency. 50 It is therefore
important to focus more specifically on the scope of a pretrial Winfield hearing and
the trial court’s options for conducting it.
By stating that admissibility of TPP evidence “should normally be resolved
as a preliminary matter before trial,” 51 Winfield does not necessarily require pretrial
resolution, let alone require pretrial resolution with government participation at a
hearing. And in any event, as noted earlier, absent government participation, a
pretrial resolution can only be provisional (whether expressly stated as such or not);
_______________
50
We have stressed that a TPP defense can be characterized as “‘defensive’
or ‘reverse’ Drew evidence.” Newman v. United States, 705 A.2d 246, 253, 255
(D.C. 1997). But this analogy includes no suggestion that the court’s pretrial
assessment of TPP relevance permits or requires the prosecutor to participate.
51
Winfield, 676 A.2d at 6 n.6 (emphasis added).
22
admissibility cannot be final until the government has an opportunity to contest it at
trial 52 (or perhaps via pretrial motion in limine to exclude an anticipated TPP
defense). 53
Accordingly, pretrial colloquies between defense counsel and the court are
presumptively ex parte, leaving the trial court with but three options upon receiving
Moghalu’s pretrial TPP proffer: (1) if the proffer was inadequate, the court could
have ruled the TPP defense inadmissible (subject to enhancement for reconsideration
at trial); (2) if the proffer appeared to be adequate, the court could have ruled it
provisionally admissible, subject to the government’s response at trial before a final
ruling; and (3) if the proffer was inconclusive, the court could have deferred the
ruling until trial, or resolved the matter definitively, before trial, if the defense had
agreed to the government’s appearance at a pretrial hearing.
The trial court chose none of these options, instead requiring Moghalu’s
pretrial disclosure of his TPP defense without Moghalu’s agreement — an error
_______________
52
See supra note 25.
53
See supra note 11 and accompanying text.
23
derived from Bowman (as no statute, court rule, or preexisting judicial decision
supported such pretrial disclosure). 54
Moreover, the government’s apparent
argument that Bowman is irrelevant, in light of Winfield’s reliance (by analogy) on
Drew to justify pretrial disclosure of a TPP defense, would permit that analogy to
displace Bowman’s unchallenged authority. Finally, the disclosure error prejudiced
the defense, requiring reversal; the error was not harmless.
D. Harmless Error?
1. Standard of Review
To hold an error harmless under Kotteakos, 55 a court must be able to say “with
fair assurance, after pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially swayed by the
error. . . .” 56 Thus, our inquiry cannot merely be “whether there was enough to
_______________
54
See supra note 9.
55
See supra note 43 and accompanying text.
56
Kotteakos, 328 U.S. at 765.
24
support the result, apart from the phase affected by the error.” 57 The dispositive
inquiry, rather, is “whether the error itself had substantial influence. If so, or if one
is left in grave doubt, the conviction cannot stand.” 58
In applying Kotteakos, this court has observed that “the ‘burden’ is not on the
appellant to show that he has suffered prejudice; rather, the issue is whether the
record eliminates the appellate court’s doubt about whether the error influenced the
jury’s decision.” 59 Indeed, “we must find it highly probable that [the] error did not
contribute to the verdict.” 60 Finally, we have said, to “assess[] an error’s impact, we
typically take three factors into consideration: (1) the centrality of the issue affected
by the error; (2) the closeness of the case; and (3) the steps taken to mitigate the
effects of the error.” 61 As elaborated below, after applying these factors to the record
_______________
57
Id.58
Id.59
Washington v. United States, 965 A.2d 35, 41 (D.C. 2009) (quoting O’Neal
v. McAninch, 513 U.S. 432, 436-40 (1995)); see Pérez v. United States, 968 A.2d
39, 93 (D.C. 2009) (“in cases of preserved error . . . the government bears the burden
of showing that trial error was harmless”).
60
Washington, 965 A.2d at 41 (quoting Wilson-Bey v. United States, 903 A.2d
818, 844 (D.C. 2006) (en banc) (alteration in original)).
61
Id. at 41-42 (internal quotation marks omitted).
25
as a whole, we cannot conclude that the trial court’s error — requiring pretrial
disclosure of Moghalu’s TPP defense to the government — was harmless under
Kotteakos.
2. Moghalu’s Argument
As Moghalu correctly points out in his brief, “much of the government’s
evidence was uncontested; the only significant issue at trial was the identity of the
second shooter” (allegedly Moghalu). The government did not have forensic
evidence assuredly tying Moghalu to the shooting or placing him at the scene of the
crime. Instead, Moghalu’s identity as the second shooter depended on the
testimonies of Williams and Hockaday, to some extent corroborated — and also
offset — by the testimonies of Charles Harrison (a victim) and Loretta Young (a
neighbor), and buttressed inconclusively by expert testimony derived from
Moghalu’s phone records.
As noted earlier, the TPP issue began with pretrial bench conferences.
Defense counsel repeatedly asserted that Moghalu did not have an obligation to
disclose his TPP defense to the government. He explained that the desire not to do
so was largely motivated by Moghalu’s concern that disclosure would give the
26
government a “strategic advantage” in “preparing Williams for . . . cross-
examination,” and that Williams, therefore, might “come up with a fabricated
explanation of why [the second shooter] wasn’t Jay Rock.” Counsel accordingly was
concerned, as stated in his brief, that the trial court’s “compelled disclosure
eliminated the element of surprise that is essential to effective cross-examination,”
and, further, that disclosure “gave the government the opportunity to prepare the
witness for the anticipated cross-examination,” and thus to minimize “his and
Warren’s relationship with J-Rock.”
3. The Government’s Response
The government responds that, even if the trial court erred in requiring pretrial
disclosure of Moghalu’s TPP defense to the government, the error was harmless for
three reasons. First, during “cross-examination, defense counsel asked Williams
whether prosecutors had informed him that [he would be questioned] about J-Rock,”
and Williams had answered “[n]o,” adding that he had “assume[d]” the prosecutors
had asked him about Jay Rock “because [he had] said that [he] talked to [J-Rock].”
Second, replies the government, “it is wholly speculative for appellant to
claim that Williams would have answered appellant’s questions differently had he
27
been more ‘surprised’”; thus, the “record does not support appellant’s assertion that
the government specifically prepared Williams for his cross-examination regarding
J-Rock.”
Third, Moghalu “was not restricted in any way from eliciting evidence to
support his third-party perpetrator defense from government witnesses on cross-
examination; nor was [he] restricted from presenting third-party perpetrator
evidence in the defense case.”
Each of the government’s arguments is unpersuasive. None satisfies the
government’s burden to establish, from the record, that the “judgment was not
substantially swayed” 62 by the compelled disclosure — that the error did not have a
“substantial influence” on the outcome. 63 The first and third arguments can be
quickly disposed of; the second is the government’s central concern.
a. First and Third Arguments
_______________
62
Kotteakos, 328 U.S. at 765.
63
Id.28
For the government’s first argument, we shall assume a truthful answer when
Williams replied “[n]o” to defense counsel’s question whether prosecutors had
informed him that he would be cross-examined about Jay Rock (which Williams
added he “assumed” would happen). Even so, we perceive no basis for saying that
Williams’s unelaborated answer helped sustain in a meaningful way the
government’s burden to negate any “substantial influence” 64 on his testimony
attributable to the government’s pretrial knowledge of Moghalu’s TPP defense. Nor
did Williams’s answer tend to make it “highly probable” that the disclosure error
“did not contribute to the verdict.” 65
The government’s third argument — that Moghalu’s presentation of his TPP
defense was unrestricted — is also easily dismissed. His freedom to pursue the
defense at trial, erroneously disclosed by judicial order before trial, is an insufficient
answer. The issue is not whether Moghalu had an unfettered right to present the
defense; rather, it is whether the government can prove that it did not gain an unfair
_______________
64
Id.65
Washington, 965 A.2d at 41.
29
advantage from that error or, in the words of Kotteakos, that the error had no
“substantial influence” — that “the judgment was not substantially swayed” by it. 66
b. Second Argument
In its second (and central) argument, the government contends that it is
“wholly speculative” for Moghalu to maintain that the government’s opportunity to
prepare Williams for cross-examination — once he was aware of the focus on Jay
Rock — generated a reasonable defense fear: that Williams would minimize his and
Warren’s relationship with Jay Rock, thereby diluting Jay Rock’s motive to shoot
Smith and Harrison and thus undermining Moghalu’s TPP defense. The government
therefore ignores the fundamental question: whether the trial might have played out
differently had the government not erroneously received advance notice of
Moghalu’s TPP defense.
Counsel for Moghalu made clear to the court before trial, in arguing against
pretrial disclosure of the proffered TPP defense, that he did not want to give the
prosecution a reason to conduct additional investigation, further prepare its
_______________
66
Kotteakos, 328 U.S. at 765.
30
witnesses, and, as a result, adjust its strategy. More specifically, Moghalu sought to
prevent this disclosure because he wanted to deprive the government of an
opportunity to help Williams, its key witness, get his story straight about his
knowledge of the shooting, his relationship with Jay Rock, and Jay Rock’s
appearance “on the scene” of the crime.
In response, arguing that the record “does not support appellant’s assertion
that the government specifically prepared Williams for his cross-examination
regarding J-Rock,” the government again overlooks that, “in cases of preserved error
. . . the government bears the burden of showing that trial error was harmless . . . .” 67
Thus, Moghalu need not demonstrate how the compelled disclosure of his TPP
defense was harmful; rather the government must demonstrate how the compelled
disclosure of Moghalu’s TPP defense was harmless. Not only does the government
fail to acknowledge and carry its burden, but also the record permits a strong
inference that the compelled disclosure of Moghalu’s TPP defense was affirmatively
harmful.
_______________
67
Pérez, 968 A.2d at 93; see Washington, 965 A.2d at 41; see also Kotteakos,
328 U.S. at 760.
31
Defense counsel was required to disclose Moghalu’s TPP defense to the
government four days before his jury trial began. During trial, defense counsel
questioned Detective Alfred T. Austin-Braxton of the Metropolitan Police
Department about his investigation. Counsel asked: “[Y]ou said that the
investigation into who J-Rock was and the conversations with Dwayne Williams
about J-Rock was relatively recent, on the eve of trial?” Detective Braxton replied,
“That is correct.” During further questioning, the detective confirmed that he had
been investigating Jay Rock just before trial as a result of his conversations with the
prosecutors; for purposes of Moghalu’s trial, he had not been satisfied with his
interviews of Williams three years earlier when he had heard Jay Rock mentioned
several times.
Significantly — perhaps most detrimental to the government’s argument that
the pretrial disclosure did not result in prejudice to Moghalu — is the following
statement made at trial by the prosecutor:
I’m going to object to the question [to Williams by defense
counsel]. [“]Did you prior to your testimony today did you
talk with the prosecutor about J-Rock [?”] and here’s why:
As your Honor well knows you shared with the
government the third[-]party perpetrator defense that Mr.
Zucker shared with the Court and we were permitted to
32
talk with our witnesses, our detectives and what have you
about who this third party perpetrator might be. 68
Despite this acknowledgment, the government argues that there is no hard evidence
that its investigation of Jay Rock was prompted by the disclosure of Moghalu’s TPP
defense. The government, however, does not address Detective Braxton’s or the
prosecutors’ discussions with Williams just before trial, explaining why they could
not be understood as efforts to shape Williams’s testimony or otherwise prepare him
in a way that would help the prosecution resist Moghalu’s TPP defense. To repeat:
the burden of proving harmlessness is on the government, which offers no record
evidence to refute the defense-proffered, prima facie reasonable explanation for the
investigation regarding Jay Rock on the eve of trial: to rehearse and improve
Williams’s testimony, as all but admitted by the trial prosecutor (“we were permitted
to talk with our witnesses, our detectives . . . .”).
_______________
68
This statement, implying that the government had spoken with its witnesses
(among them Williams and Hockaday) about who the third-party perpetrator might
be, was consistent with Williams’s testimony that prosecutors had asked him about
Jay Rock in meetings “the last few days” before he took the stand, as well as with
his testimony that prosecutors did not tell him that defense counsel was going to
cross-examine him about Jay Rock during the trial.
33
The government knew about Jay Rock three years before Moghalu’s trial by
interviewing Williams, but it never investigated Jay Rock, in part, according to
Detective Braxton, because “[h]e didn’t match the description . . . that was provided
by the other witness that saw the three individuals running from the scene.” On the
eve of trial, however, at around the same time that Moghalu was compelled to
disclose his TPP defense, the government investigated Jay Rock and met with
Williams to discuss Jay Rock. While it is possible that this last minute flurry of
activity had nothing to do with defense counsel’s compelled disclosure of its TPP
defense, the government has the burden of demonstrating at least some plausible
reason other than the most obvious: that it investigated Jay Rock for the first time,
and spoke to Williams about him, to combat as forcefully (and fairly) as possible the
TPP defense it had just learned about. No other reason was — or is — forthcoming.
4. Conclusion
Considering the three factors we typically apply when assessing the impact of
trial court error, we conclude that it is not “highly probable that [the] error did not
contribute to the verdict.” 69
_______________
69
Washington, 965 A.2d at 41-42.
34
First Factor (“centrality of the issue”). 70 The identity of the second shooter,
allegedly Moghalu, was the primary issue in this case. As one of two witnesses who
identified Moghalu as the second shooter, Dwayne Williams (the government’s key
witness) offered testimony regarding Jay Rock as a potential third-party perpetrator
— testimony obviously relevant to a “central issue” in Moghalu’s prosecution.
Williams’s testimony directly tied Moghalu to the crimes for which he was
convicted, using Moghalu’s acquaintance with David Warren to paint a picture of
someone who was willing to kill, and indeed did so, in retaliation for the victims’
decision to “snitch” on Warren.
Second Factor (“closeness of the case”). 71 The strength of the government’s
case against Moghalu, while substantial, cannot be called robust. The only direct
evidence connecting Moghalu to the shooting were the testimonies of two
individuals engaged in criminal activity, Hockaday and Williams, who were
impeached with numerous prior inconsistent statements and had a motive to curry
favor with the government in their own criminal proceedings, as well as to protect
_______________
70
Id. at 41
71
Id.35
each other. Further, neither knew Moghalu particularly well, or at least for very long,
and therefore the strength of their testimonies as to his relationship with Warren and
what he would be willing to do for Warren is somewhat diminished.
Loretta Young, a retired teacher living at an apartment near the scene of the
shooting, corroborated certain aspects of Williams’s and Hockaday’s testimonies:
that she heard gunshots, saw three men on M Street walking at a fast pace from 21st
Street, and saw one of the men toss a gun onto the roof of a building adjacent to her
own. However, her most relevant testimony — about the descriptions of the men she
had seen — conflicted with the description of the second shooter given by the
surviving victim, Charles Harrison. Specifically, Young testified that none of the
men she observed had dreadlocks, whereas Harrison testified that the shooter had
“dreads to [his] collar.” Moghalu did not have dreadlocks. While it is possible that
the trauma of being shot interfered with the sharpness of Harrison’s memory, he was
at least arguably, perhaps indisputably, in a better position to describe his assailants
than Loretta Young from her second-story window.
As circumstantial evidence, the government points to the fact that Moghalu’s
phone records indicate he was in the area of the shooting around the time it occurred.
This evidence is of limited strength, however, as Moghalu lived in that area. Of
36
particular significance, the government’s expert confirmed it is impossible to tell
from these records whether Moghalu’s phone was at the scene of the murder, in his
home, or somewhere else nearby. While evidence of one’s presence near the scene
of a crime might, at least initially, raise eyebrows, it is not particularly unusual to be
found in or near one’s own home.
Third Factor (“steps taken to mitigate”). 72 Finally, there were no steps taken
by the government to mitigate the effects of the error. This is understandable, as the
government did not create the error; rather, the trial court erred by requiring defense
counsel to disclose Moghalu’s TPP defense to the government before trial as a
condition for presenting the defense. Because the government was not responsible
for the trial court’s error, the prosecution likely determined that it had no reason to
take steps to demonstrate that pretrial disclosure would be harmless — assuming the
government even perceived that disclosure might be error in the first place.
Therefore, rather than anticipatory mitigation of the error by declining to share the
TPP proffer with its investigators and witnesses, the government — as the trial
prosecutor implied — likely did what one would expect: it used the information
about Moghalu’s TPP defense to strengthen its case against him. In other words, the
_______________
72
Id. at 41-42.
37
trial court caused the error and the government likely took advantage of the
knowledge it gained, in order to put on the best case it could.
With Williams’s testimony about Jay Rock leaving Williams’s credibility
somewhat in doubt, all the jury had left was the testimony of Hockaday that Moghalu
was the shooter, the testimony of Young that conflicted with Harrison’s descriptions
of the likely shooters, and Moghalu’s phone records, which indicated that his
cellphone could have been at the crime scene, at his home, or at another nearby
location. Similar to the situation we addressed in Flores, 73 it is largely the “lack of
a record” in this case that “not only makes it impossible for [the court] to evaluate
whether a significant” change in testimony occurred, but “it also precludes the
government from meeting its burden to show harmlessness . . . .” 74 As we are “left
in grave doubt, the conviction[s] cannot stand.” 75
_______________
73
Flores v. United States, 698 A.2d 474 (D.C. 1997).
74
Id. at 481.
75
Kotteakos, 328 U.S. at 765.
38
It is therefore unnecessary to reach appellant Moghalu’s other two claims of
error, contesting admission of lay opinion testimony from a government witness and
barring recross-examination of another government witness.
*****
For the reasons elaborated above, the judgments of conviction are reversed
and the case is remanded for further proceedings consistent with this opinion.
So ordered.
EASTERLY, Associate Judge, concurring: We hold in this opinion that a trial
court may not—indeed has no authority to—order disclosure of a third party
perpetrator defense to the government pretrial and that the trial court in this case was
mistaken to think this court’s opinion in Winfield v. United States, 676 A.2d 1(D.C.
1996) (en banc) required such disclosure. Our holding is compelled by our decision
in Bowman v. United States, 412 A.2d 10 (D.C. 1980) and by Winfield itself.
39
In Bowman, this court reviewed a petition for a writ of mandamus challenging
the trial court’s order to defense counsel to disclose pretrial to the government “the
general nature of the defense.” 412 A.2d at 11-12. We explained that discovery in
criminal cases was wholly regulated by “statutes, judicial decisions [e.g., Brady v.
Maryland, 373 U.S. 83 (1963), regarding constitutionally mandated discovery 1] and
the rules of the Superior Court.” Bowman, 412 A.2d at 12 (internal quotation marks
and citations omitted). “As to statutes or judicial opinions we . . . found none . . .
which hold that a trial court has the power to compel the defendant to divulge his
defense before trial.” Id. “Looking to the Superior Court rules,” we noted “they
expressly authorize pretrial disclosure of defense matters in only two instances,”
referring to alibi and insanity defenses (the obligation to disclose a public authority
defense had not yet been added to the rules). 2 Id. We not only concluded the trial
_______________
1
See 2 WRIGHT & MILLER, FED. PRAC. & PROC. CRIM. § 251 (4th ed. 2020)
(explaining that, although creation of discovery rules is generally the province of
“rulemakers and legislators,” there are also “constitutional considerations that
cannot be ignored” by the courts, citing Brady as an example).
2
See Super. Ct. Crim. R. 12.3 (effective as of 2016); see also Fed. R. Crim.
P. 12.3 (effective as of 1988). Before making changes to the Rules of Criminal
Procedure, the Superior Court follows an established internal process for reviewing
proposals, which involves review by the relevant advisory committee, review by the
Superior Court Rules Committee, publication of notice and request for comment,
review of public comments, consideration by the Superior Court Board of Judges,
and as needed, review and approval by this Court. The Rulemaking Process,
40
court’s disclosure order was outside the scope of its express authority, we rejected
the government’s argument that “the trial court’s action . . . was proper pursuant to
its ‘inherent powers’ to regulate pretrial disclosures,” id., under Superior Court
Criminal Rules 17.1 (“Pretrial Conference”) and 57(b) (“Procedure When There Is
No Controlling Law”). We definitively stated that “[t]hese rules . . . give absolutely
no support to the government’s position”; that they “are designed to provide
procedural forums or leeway to lighten ministerial burdens and expedite trial”; and
“[i]n no way are they intended to ‘authorize’ unauthorized discovery.” Bowman,
412 A.2d at 12 (internal quotation marks and citation omitted). Accordingly, we
concluded that the trial court’s ruling directing pretrial disclosure of the defense
theory to the government “amounted to a[] usurpation of power . . . .” Id.To think that Winfield changed this legal landscape in a one-sentence footnote
making a passing observation that preliminary assessments of third party perpetrator
_______________
DISTRICT OF COLUMBIA CTS., https://www.dccourts.gov/superior-court/rules-
committee/rule-making-process; https://perma.cc/S5GQ-W8UY (last visited
October 27, 2021); see also Super. Ct. Bd. of Judges Res., Prepublication of Rule
Amendments (Jan. 18, 1979) (requiring notice and comment “with respect to
proposed changes in [the] Rules unless the [Superior] Court determines that to do so
in a particular case would be impractical or would serve no purpose”).
41
evidence should “normally” be made pretrial, 676 A.2d at 6 n.6, makes little
sense. After all, Winfield did not say that third party perpetrator evidence is the
subject of exceptional concern and requires special vetting. It said the exact
opposite. Winfield held that third party perpetrator evidence is not inherently
concerning and should not be subject to heightened scrutiny.
As we explained in Winfield, the trial court ruling in that case “reflect[ed] the
lingering notion in our decisions that relevance means something different as regards
evidence that a third party committed a crime than it does in other contexts.” Id. at
4. Winfield held that this “notion” was incorrect, explaining “the ‘reasonable
possibility’ formulation of Johnson and its conclusion that relevance here means
what it generally does in the criminal context[: it] requir[es] a ‘link, connection or
nexus between the proffered evidence and the crime at issue.’” Id.; id. at 5(disavowing the imposition of a “more exacting standard” of admissibility).
Winfield observed there was no need to take any special effort to restrict admission
of third party perpetrator evidence because “sifting the relevance of that evidence is
largely about drawing commonsense inferences from uncomplicated facts,
something we regularly entrust to juries.” Id. at 7. And Winfield underscored the
point that third party perpetrator evidence did not need to be handled with special
42
care and subjected to special vetting by directing trial courts to “resolve close
questions of admissibility . . . in favor of inclusion, not exclusion,” in part because
“a substantial proffer that a third person committed the offense implicates the
defendant’s constitutional right to ‘a meaningful opportunity to present a complete
defense.’” Id. at 6-7.
How incongruous would it have been for the en banc court in Winfield to have
held that third party perpetrator evidence need not be subjected to special scrutiny,
but then to hold (in disregard of Bowman and the constitutional concerns Winfield
itself acknowledged) that the defense must take the highly unusual and intrusive step
of disclosing a third party perpetrator defense to the government pretrial? Winfield
did not do this. 3 Instead, by rejecting a heightened relevance standard for evidence
_______________
3
It is immaterial that Winfield prefaced its observation about “preliminary”
pretrial admissibility assessments in footnote 6 with a reference to assessments of
“other crimes” evidence under Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964).
676 A.2d at 6 n.6. This court has only endorsed a trial court’s authority to require
the government to provide the defense with advance notice of use of Drew evidence.
See, e.g., Jones v. United States, 127 A.3d 1173, 1185 (D.C. 2015); Wilson v. United
States, 690 A.2d 468, 472 & n.4 (D.C. 1997) (Ruiz, J., concurring). Although we
have never explicitly identified a source of authority for such trial court discovery
orders, see Ford v. United States, 647 A.2d 1181, 1184 (D.C. 1994) (acknowledging
the absence of a specific rule mandating disclosure, quoting Lewis v. United States,
567 A.2d 1326, 1329 (D.C. 1989)), a review of our cases indicates that whether such
43
in support of a third party perpetrator defense, the en banc court made it clear that
normal procedures for assessing its admissibility apply 4—a rationale that precludes
_______________
orders are justified and warranted turns on whether the proffered evidence amounts
to propensity evidence, the admission of which implicates a defendant’s
constitutionally protected presumption of innocence and right to a fair trial. See
Wilson, 690 A.2d at 474 (Ruiz, J. concurring) (explaining that “advance notice
would be appropriate where the misconduct would have a strong tendency to show
propensity on the part of the defendant to commit the crime charged”); see also
Thompson v. United States, 546 A.2d 414, 419 (D.C. 1988) (recognizing the
indispensability of the rule barring use of propensity evidence “to the presumption
of innocence” and the “potential for evidence of other crimes to deny the defendant
a fair trial”). We have never upheld the legitimacy of a trial court’s order compelling
disclosure by the defense of similar evidence to the government.
4
Of course, normally, any pretrial discussion of the defense theory or strategy
is conducted ex parte. See, e.g., Henry v. United States, 94 A.3d 752, 755 (D.C.
2014) (self-defense theory proffered in ex parte bench conference before defendant
took the stand); Legette v. United States, 69 A.3d 373, 380 (D.C. 2013) (trial judge
confirmed defense theory ex parte before making admissibility ruling regarding prior
bad acts); Ventura v. United States, 927 A.2d 1090, 1098 (D.C. 2007) (trial judge
invited counsel to share defense theory in ex parte bench conference prior to ruling
on request for DNA testing); Boykin v. United States, 738 A.2d 768, 772 (D.C. 1999)
(defense counsel revealed in ex parte bench conference, mid-cross examination, that
it was seeking to elicit information about a third-party perpetrator from government
witness, and court rejected proffer as insufficient without involving government);
Williams v. United States, 310 A.2d 244, 246 (D.C. 1973) (explaining that ex parte
proceedings, where indigent defendants can request expert services such as
psychiatric evaluations, are necessary to avoid “premature disclosure of [the
defense’s] case”).
This is because the Fifth Amendment’s Due Process and Self-Incrimination
Clauses, along with the Sixth Amendment’s Assistance of Counsel Clause, together
strongly protect against requiring the defense to disclose its evidence, strategies, or
theories to the prosecution. See United States v. Wright, 489 F.2d 1181, 1195 (D.C.
Cir. 1973); Middleton v. United States, 401 A.2d 109, 115–16 (D.C. 1979). In short,
44
the imposition of other special constraints like a disclosure obligation to the
government pretrial.
Perhaps the government’s practice of filing motions in limine to preclude a
third party perpetrator defense (presumably with the hope of forcing disclosure of
the existence vel non of such a defense) has led to the misimpression in Superior
Court both that the government is entitled to know of a third party perpetrator
defense pretrial and that trial courts have an obligation to direct pretrial disclosure
of such a defense to the government if disclosure is not voluntarily made. We now
clarify that the government is not entitled to know of a third party perpetrator defense
pretrial, that (per Winfield) the government has no need to know of a third party
perpetrator defense pretrial, and that it is error for a trial court to direct pretrial
disclosure of a third party perpetrator defense to the government.
_______________
whereas the government has a constitutional obligation to disclose certain
information “to assist the defense in making its case[,]” Vaughn v. United States, 93
A.3d 1237, 1253 (D.C. 2014) (quoting United States v. Bagley, 473 U.S. 667, 675
n.6 (1985)), “[t]he defense has no duty to help the prosecution convict the
defendant,” Wright, 489 F.2d at 1195, and is ordinarily constitutionally protected
from being compelled to make pretrial disclosures to the government that might
assist in bringing about the defendant’s conviction.