Stringer v. United States

301 A.3d 1218

Barry D. STRINGER, Appellant, v. UNITED STATES, Appellee.

No. 19-CO-0076

District of Columbia Court of Appeals.

Argued May 8, 2023

Decided September 19, 2023

Gregory M. Lipper for appellant.

David P. Saybolt, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, Chrisellen R. Kolb, John P. Mannarino, Nihar R. Mohanty, and Caroline R. Burrell, Assistant United States Attorneys, were on the brief, for appellee.

Before Deahl, Howard, and Shanker, Associate Judges.

Shanker, Associate Judge:

This post-conviction matter arises out of the murder of Tilford Johnson in 2003. Appellant Barry D. Stringer and his nephew Roderick Charles were charged with the murder and related offenses and went to trial separately. They both were convicted in 2006 of first-degree felony murder while armed, second-degree murder while armed (as a lesser-included offense of first-degree premeditated murder while armed), armed robbery, and three counts of unlawful possession of a firearm during a crime of violence or dangerous offense. This court affirmed Mr. Stringer's and Mr. Charles's convictions but remanded in both cases for resentencing on merged offenses. Mr. Charles was resentenced in October 2014 to 372 months in prison; Mr. Stringer was resentenced in January 2021 to 432 months in prison.

In 2014, based on new evidence, Mr. Stringer moved, pursuant to the Innocence Protection Act (IPA), D.C. Code § 22-4131 et seq., to vacate his convictions and dismiss the charges or for a new trial. The new evidence consisted of an affidavit by Mr. Charles in which he claimed that he acted alone in killing Mr. Johnson and that Mr. Stringer was not involved. After holding an evidentiary hearing at which Mr. Charles testified, the trial court denied the motion on the ground that Mr. Charles was not credible. Mr. Stringer appealed.

Respectful of the substantial deference due to the trial court on credibility determinations and on the ultimate issue of actual innocence under the IPA, but uncertain about the bases for some of the court's findings and conclusions, we remand the matter to the trial court for reconsideration in light of this opinion.

I. Background

A.

Tilford Johnson was murdered in the early morning hours of June 3, 2003. His body was found later that morning in a car parked in an alley behind 28th Street, SE, in Washington, D.C. When Metropolitan Police Department ("MPD") officers arrived at the scene, they discovered Mr. Johnson's body slumped in the driver's seat, with a single gunshot wound to the head. The doors to the car were locked, the windows were up, the key was in the ignition, and the parking brake was engaged. The rear driver's side window of the car was shattered. Mr. Johnson's wallet was in the car, empty. Police found a "vast" amount of blood on the rear seat and floor behind the driver's seat. Blood was also on the outside of the car, and a trail of blood led away from the car to a property bordering the alley on Buena Vista Terrace, SE.

B.

Mr. Stringer and Mr. Charles, his nephew, were charged with Mr. Johnson's murder and related offenses. They went to trial separately in 2006.

The evidence against Mr. Stringer essentially consisted of evidence implicating Mr. Charles (who had already been convicted but not sentenced); phone records showing numerous contacts between Mr. Charles and a phone associated with Mr. Stringer close in time to the murder; testimony by Mr. Stringer's brother (and Mr. Charles's uncle) inculpating both Mr. Charles and Mr. Stringer; and a letter Mr. Stringer sent to Mr. Charles while both were incarcerated. See Barry Stringer v. United States , No. 06-CF-1515, Mem. Op. & J., 976 A.2d 225 (D.C. July 20, 2009).

The evidence was as follows. Mr. Johnson and his roommate, Anthony Collins, were both friends with Mr. Charles. When Mr. Collins learned that Mr. Johnson had been murdered, he called Mr. Charles. Mr. Charles said that Mr. Johnson had called him on the night of June 2, 2003, to ask if Mr. Charles would accompany him on a drive to Boston. Phone records showed that Mr. Johnson called Mr. Charles 12 times between 11:38 p.m. on June 2, 2003, and 2:58 a.m. on June 3, 2003, with the 2:58 a.m. call being the last call on Mr. Johnson's phone.

Between 3:25 a.m. and 3:28 a.m., Mr. Charles made several calls to the residence of his friend James Campbell, who lived with his brother Jermaine and others. When Jermaine answered the last call, he told Mr. Charles that he was sleeping and hung up. The Campbell brothers lived at 3208 28th Street, SE—about 150 feet from where Mr. Johnson's body was found.

Immediately after the last call between Mr. Charles and Mr. Johnson, Mr. Charles called the phone number 202-xxx-9730. The subscriber of that cell phone account, Tiffany Thompson, testified in the grand jury (by adopting statements she had given to investigators) that she bought the cell phone in late 2002 when she went to the store with Mr. Stringer and Carlos Sly, her son's father and Mr. Stringer's friend. Mr. Sly had asked her to get a cell phone for Mr. Stringer. Ms. Thompson knew that the phone was for Mr. Stringer and that Mr. Stringer used the phone, although Mr. Sly paid the monthly bills. At trial, Ms. Thompson testified inconsistently with her grand jury testimony, saying that Mr. Sly had asked her to purchase the phone for his own use. She was impeached with her grand jury testimony.

Cell phone records showed that between 11:00 p.m. on June 2 and 3:00 a.m. on June 3, Mr. Charles and the individual with the -9730 phone called each other approximately 14 times. There were several more calls between the two between 3:00 a.m. and 3:17 a.m., and then nine calls starting at 9:22 a.m. on June 3. The last of those calls was from the -9730 phone at 10:59 a.m. on June 4, 2003. Minutes thereafter, someone who identified himself/herself as the subscriber for Mr. Charles's number called the cell phone company and requested that the company change the cell phone number. There was no further activity for Mr. Charles's telephone number after 11:13 a.m. on June 4, 2003.

Robert Lyles, Mr. Stringer's brother and Mr. Charles's uncle, testified at trial pursuant to a plea agreement in a separate narcotics case, in which he had not yet been sentenced. Mr. Lyles stated that Mr. Charles told him, a few days after Mr. Johnson's murder, that he and Mr. Stringer had robbed a person of marijuana and money in an alley and that Mr. Stringer had shot the person. Specifically, according to Mr. Lyles, Mr. Charles told him that Mr. Charles and the victim were in a car together and drove to an alley; once there, Mr. Stringer "came up and got in the car" and then "shot the person." Mr. Lyles added that a few days after that, he saw Mr. Stringer in a car, approached the window, and struck up a conversation; Mr. Stringer asked Mr. Lyles if Mr. Lyles had heard about what had happened in the alley, and when Mr. Lyles responded that he had heard about it, Mr. Stringer stated, "That was me." Mr. Lyles acknowledged that he did not tell anyone about Mr. Charles's and Mr. Stringer's confessions for 10 months, despite the fact that he was cooperating with the government during that time, and that on four occasions he told investigators that Mr. Stringer had not talked to him about the shooting.

Police seized Mr. Charles's phone on June 27, 2003, after executing a search warrant at his home. On that same date, Ms. Thompson, the subscriber listed for the -9730 cell phone, contacted the cell phone service provider and requested termination of the service for that phone. Ms. Thompson testified before the grand jury that Mr. Stringer told her to have the cell phone service turned off, and, when she asked why, Mr. Stringer responded, "I can't tell you." At trial, Ms. Thompson testified that both Mr. Sly and Mr. Stringer told her to cancel the service, and that Mr. Stringer was relaying the message for Mr. Sly because Ms. Thompson and Mr. Sly were no longer together. Again, she was impeached with her grand jury testimony.

Law enforcement authorities also obtained a letter that Mr. Stringer wrote to Mr. Charles from jail when Mr. Stringer was incarcerated on another charge, before he was charged with Mr. Johnson's murder. In the letter, Mr. Stringer told Mr. Charles that "we fucked up," but "it won't be long before we get home[;] all you have to do is ride this shit out." Mr. Stringer told Mr. Charles "to live by the code, see nothing, know nothing, hear nothing." Attached to the letter was a copy of a confidential, internal jail document listing the inmates who were to be kept separated from Mr. Charles. Written on the document was: "These are the n----s that got a seperation [sic] on you. Rats."

In the defense case, Mr. Stringer called two individuals who testified that Mr. Charles told them that he had committed the shooting; one of them said on cross-examination that Mr. Charles said he had acted alone, although he had not said that on direct examination. Mr. Charles, who was awaiting sentencing in his own case, also testified on Mr. Stringer's behalf. He denied telling Mr. Lyles that he and Mr. Stringer robbed Mr. Johnson or that Mr. Stringer shot Mr. Johnson. Mr. Charles said he spoke to Mr. Johnson on his cell phone on the night of June 2-3, 2003, but only to give him directions. He also spoke by phone that night to Mr. Sly and Jermaine Campbell. He essentially denied involvement with the murder by stating that he was home waiting for Mr. Johnson at about 3:00 a.m. on June 3, 2003, but Mr. Johnson never showed up. But when asked specifically about the robbery and murder of Mr. Johnson, Mr. Charles invoked his Fifth Amendment rights.

Mr. Stringer also testified during his trial. He denied shooting Mr. Johnson, being in the alley the night of the shooting, or having any conversations by phone or in person with Mr. Charles that night. He denied using the cell phone purchased by Ms....