                                District of Columbia
                                 Court of Appeals

No. 15-CO-36
                                                                              SEP 29 2016
JOEL CASTON,
                                               Appellant,

         v.                                                               FEL-11733-94


UNITED STATES,
                                               Appellee.

                On Appeal from the Superior Court of the District of Columbia
                                     Criminal Division

       BEFORE: THOMPSON and EASTERLY, Associate Judges; and KRAVITZ, Associate
Judge, Superior Court of the District of Columbia.*

                                        JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

             ORDERED and ADJUDGED that the trial court’s order is vacated, and the
matter is remanded for further proceedings consistent with this opinion.


                                               For the Court:




Dated: September 29, 2016.

Opinion by Associate Judge Phyllis D. Thompson.




*
    Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

              DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 15-CO-36                      9/29/16

                             JOEL CASTON, APPELLANT,

                                         V.

                             UNITED STATES, APPELLEE.

                           Appeal from the Superior Court
                            of the District of Columbia
                                  (FEL-11733-94)

               (Hon. Gregory Jackson, Post-Conviction Motion Judge)
(Argued January 19, 2016                              Decided September 29, 2016)

      Jonathan Zucker, with whom Patricia Daus was on the brief, for appellant.
       Christopher Macchiaroli, Assistant United States Attorney, with whom
Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was
filed, and Elizabeth Trosman and Frederick Yette, Assistant United States
Attorneys, were on the brief, for appellee.
      Before THOMPSON and EASTERLY, Associate Judges, and KRAVITZ,
Associate Judge, Superior Court of the District of Columbia.


      THOMPSON, Associate Judge:        In 1996, a jury convicted appellant of the

August 1994 fatal shooting of Rafique Washington and of related weapons


      
          Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
                                         2

offenses. In December 2011, after this court had affirmed appellant’s convictions

on direct appeal and subsequently affirmed the denial of his motion filed pursuant

to D.C. Code § 23-110 (2001),1 appellant filed a motion to vacate his convictions

under the provisions of the Innocence Protection Act codified at D.C. Code § 22-

4135 (2001) (the “IPA”). The trial court held an evidentiary hearing on the IPA

motion and thereafter denied the motion, stating that it could not “find that it is

more likely than not that [appellant] is actually innocent of the crime.” This appeal

followed.



      Appellant asserts numerous claims of error, several of which we reject. As

explained in more detail below, however, in denying appellant’s IPA motion, the

Superior Court judge (1) seemed, mistakenly, to regard new evidence that was

presented — an affidavit and hearing testimony from a putative eyewitness to the

murder who stated that appellant was not the shooter — as mere “impeachment

evidence” that is inadequate to warrant relief under the IPA; (2) discredited that

      1
         Caston v. United States, No. 96-CF-1954, Mem. Op. & J. (D.C. Feb. 20,
2002) (rejecting appellant’s argument that the trial court abused its discretion in
allowing the jury to learn of his involvement in drug sales two days after the
murder); Caston v. United States, No. 04-CO-0877, Mem. Op. & J. (D.C. May 24,
2005) (affirming the trial court’s ruling that appellant’s motion, which was not
filed during the pendency of his direct appeal, and which claimed that trial counsel
failed to call three requested alibi witnesses and a purported eyewitness (“Ms.
Pat”) and also failed to interview or contact some witnesses prior to trial, was
procedurally defaulted).
                                          3

witness’s statements on the basis of inconsistencies between statements contained

in his affidavit and in his hearing testimony, without regard to whether the

inconsistencies were trivial or insignificant and whether they were explainable; (3)

did not critically examine the weight of the trial evidence; and (4) contrary to this

court’s guidance in Bouknight v. United States, 867 A.2d 245 (D.C. 2005), appears

ultimately to have adjudged the credibility of the (putative) eyewitness’s testimony

in light of the court’s adverse determination about appellant’s own credibility.

While we accord “great deference to the trial court’s role as the trier of fact on the

ultimate issue of ‘actual innocence’ under the IPA,” Richardson v. United States, 8

A.3d 1245, 1249 (D.C. 2010), we cannot be confident that, had the judge’s

decision not been influenced by the foregoing factors, he would have reached the

same conclusion about the likelihood that appellant is “actually innocent of the

crime.” Accordingly, we remand the matter to the trial court for reconsideration in

light of this opinion.
                                          4

                      I. The Evidence at Appellant’s Trial2



      The evidence at appellant’s 1996 trial (on the charge of first-degree murder

and related weapons charges) established that on the evening of August 14, 1994,

Washington was shot and killed in front of the New China Carry Out (the

“carryout”) at the corner of 16th Street and Good Hope Road, S.E. Government

witness Edward Thompson testified that on that evening, he rode to the carryout

with Washington, a man named “Gene,” and driver “Mark.” After the group had

made their purchases, Thompson walked across the street to use a payphone,

leaving Washington, Gene, and Mark standing on the steps in front of the carryout.

Thompson returned a few minutes later and asked the others to get into the nearby

car so they could leave. As Thompson was trying to open the car door, he heard a

gunshot and saw Washington fall in front of the carryout’s front door. Thompson

testified that he then saw appellant “c[o]me from out the shadow of the carryout,”

      2
         Appellant did not provide us with the transcripts of his trial, but, with the
exception of the transcript of October 15, 1996 (apparently the last day of trial,
when defense counsel was expected to call Thompson back to the witness stand to
question him about a possible “deal” with the government) we have been able to
review the trial transcripts from (microfilmed) archived records. The government
has summarized the trial record and pertinent grand jury testimony in its brief,
without dispute from appellant, and we assume that there is nothing in the October
15, 1996, transcript (or in the grand jury transcripts, which we also do not have)
that renders the summary of the trial evidence that follows materially inadequate or
misleading.
                                       5

run toward Washington, place a revolver inches from Washington’s body, almost

touching Washington’s head, and fire “about five” additional shots.3 Thompson

testified initially that appellant was “standing over” Washington, but then

explained that appellant was “steadily moving” while he was shooting, and “wasn’t

just standing in one spot when he was shooting” Washington. Appellant then fled,

and Thompson, Gene, Mark, a woman named Lazetta Uzzle, and Uzzle’s

boyfriend Kevin Molden (nicknamed “Half” or “Haf”) all stood around

Washington’s body.      Thompson testified that he saw Half search through

Washington’s pockets, but that he did not know whether anything was taken.

Everyone fled the scene before the police arrived. Thompson testified that, at

some point before the shooting, Washington told him that he (Washington) “ha[d]

a problem with [appellant].”4




      3
         A forensic pathologist testified that there were six gunshot wounds to
Washington’s body and that the soot around two of the wounds was consistent with
the shots having been fired from between twelve and eighteen inches away as
Washington lay on the ground.
      4
           Asked by defense counsel about whether, a couple of days before
Washington was shot, someone had shot at Washington and Thompson “from
across the street near the carryout,” Thompson agreed that “somebody was
shooting out there,” but testified, “They weren’t shooting at us[.]”
                                         6

      Uzzle also testified at trial.   She told the jury that shortly before the

shooting, she saw appellant, whom she had known her entire life, talking with

another man inside 1641 W Street, S.E. Uzzle then walked north on 16th Street,

looking for Washington so she could purchase cocaine from him. At some point,

while standing at the intersection of 16th and U Streets with Half, Uzzle saw

Washington drive by in a car, which also contained Thompson, Gene, and Mark.

Washington told Uzzle and Half that he did not have any cocaine and then went

into the carryout. Soon thereafter, Uzzle, who was then about a block away from

the carryout, heard gunshots, but did not see who fired the shots.5 She ran in the

opposite direction of the gunshots, but at some point, turned around and headed

back toward the carryout to join Half, whom she had seen run “towards the shot.”

Uzzle arrived at the carryout to see Half going through Washington’s pockets.

Gene was on the scene as well. Thompson ran past Uzzle and was behind the car,

and Mark was standing nearby. Half took money out of Washington’s pockets.

Uzzle then ran back in the direction of the building where she had seen appellant

earlier that evening. Uzzle explained that she ran from the scene because “Ha[l]f

and [she] had just took the money off [Washington]” and she “didn’t want to be

around when the police came.” Uzzle spotted appellant again and told him “to go


      5
          Uzzle testified before the grand jury that she did not know “who actually
did the shooting.”
                                           7

home” because Washington had just been killed and because appellant, who had

fought with Washington a few weeks prior,6 would be the prime suspect for the

murder.



      The government also presented evidence that two days after the shooting,

police spotted appellant and two other men engaged in suspected narcotics activity.

All three men were “holding their waistbands as if they had a gun.” As officers

approached, appellant and the other men fled and ran inside an apartment. Officers

found two of the men “come from out of the hallway closet” and found two guns

on the floor of the closet. An officer found appellant “peep[ing]” out from a closet

in the nearby back bedroom. The officer did not see a gun in appellant’s hand, but

searched the closet and found a chrome .44 Magnum revolver sticking out from a

shoebox that was on a shelf.7        The Magnum revolver was tested for latent

fingerprints, but none were found. A firearms expert testified that bullet fragments

      6
           According to Uzzle’s trial testimony, a couple of months before the
shooting, appellant, Washington, D’Quinta Uzzle (Uzzle’s son), and a man named
Sean fought over a gun. Appellant and Washington exchanged punches. As
Washington was driving away from the fight, appellant hung on to a door of the
car, firing shots at it until he fell. Uzzle saw the the gun, which she “guess[ed] . . .
was [appellant’s],” fall on the ground. Uzzle testified that she believed the gun
was a revolver.
      7
         According to the government’s brief, the owner of the apartment (Wendy
Hursey, who was “unavailable” to testify at trial) testified before the grand jury
that she did not own any guns or keep any ammunition in her apartment.
                                        8

recovered from Washington’s body and from the crime scene “were in fact fired

through the barrel of th[e] .44 Magnum revolver[.]”



      Finally, the government introduced evidence that about a week after the

shooting, police executed a search warrant at appellant’s mother’s residence, where

appellant also resided. Underneath appellant’s mattress, police found a “speed

loader” — a device used for rapidly loading ammunition into a firearm —

containing six rounds of .44 caliber ammunition as well as additional rounds of

ammunition.



              II. The Affidavits and Hearing Testimony in Support
                           of Appellant’s IPA Motion


      In support of his IPA motion, appellant submitted affidavits from Lloyd

Rodgers, Uzzle, and Jermaine Brown. Appellant’s counsel explained to the court

(the Honorable Gregory Jackson) that after interviewing Rodgers, counsel had

decided not to call him to testify at the IPA hearing because he “really couldn’t

elucidate much.”



      Rodgers stated in his affidavit that he was an eyewitness to the shooting on

August 14, 1994. Specifically, he stated that he was inside the carryout ordering
                                        9

food when he saw Washington, Gene, and Mark enter the carryout. After he

exchanged greetings with the men, he left the carryout and noticed a “slim

brown/dark-skinned guy dressed in all black wearing a baseball cap standing at the

phone booth.”8 Before Rodgers could open the door of his parked car, he saw the

three men exit the carryout, and then heard a gunshot. After taking cover, Rodgers

saw the man from the phone booth standing over Washington and firing rounds

into Washington’s body before running off. After the shooter fled, Gene and Mark

were standing there and “their buddy Eddy [presumably, Thompson]” ran over

from across the street. According to Rodgers, “they” told him that the person who

had shot Washington was Half. Rodgers stated in addition, “I know without a

shadow of a doubt that the guy I saw commit this was not Joel Caston.”



      Uzzle, Brown, and appellant all testified at the hearing on appellant’s IPA

motion. Uzzle testified that, on the evening of the shooting, she was speaking with

Washington about buying some cocaine when Half interrupted the conversation

and began arguing with Washington about Uzzle’s “having [had] sex with




      8
         In contrast, in his affidavit, Brown described Half as “approximately five
foot five inches with light brown skin, a large build and a shaved head.”
                                         10

[Washington].”9 According to Uzzle, Washington “pulled a gun out on Half[.]”

Half retreated after Uzzle told the men that they needed to “cut that out,” but Uzzle

heard him say that “this wasn’t the end of it, that he’ll be back.” Uzzle interpreted

Half’s words as meaning that Half “was going to get [Washington] for pulling [a]

gun on him.” Uzzle testified that Half then “ran up the street” toward where she

and Half lived, and that she “knew he was running to go get a gun[.]” A little

while later, Uzzle heard gunshots coming from the direction in which Half had run.

When Uzzle ran in that direction and arrived on the scene, she saw Half putting a

gun inside his pants as he stood over Washington’s body, went through

Washington’s pockets, and took money and drugs.10 Half then ran off and Uzzle

followed him. While running back to her residence, Uzzle saw appellant (whom

she regarded as a son and referred to as her “nephew,” although he was not related




      9
         This testimony was in contrast to Uzzle’s grand jury testimony that Half
did not “do any talking at that time.” Also at trial, Uzzle answered, “No” to the
question, “Isn’t it a fact that Ha[l]f was upset with [Washington] because he tried
to get some cocaine from you and he refused?”

      At trial, Uzzle testified that Washington was in a car at the time of the
conversation; during the IPA hearing, she testified that Washington was on foot.
      10
         This was in contrast to Uzzle’s grand jury testimony that she and Half
“walked across the street together over to the body.”
                                             11

by blood) about four or five blocks from the scene of the murder.11 She did not see

appellant “near the murder,” and she testified that there was “no way that he could

have . . . left from the scene of the crime” and arrived at where she saw him blocks

away unless he was “Superman.” Uzzle told appellant that he should go home

because Washington had just been shot and appellant would be the “first one . . .

blamed” because of the fight he and Washington had had two weeks earlier.

Appellant was “surprised” to hear about the shooting.12 Later in the evening, when

Uzzle and Half were both in their home again, Uzzle asked Half what he had done,

and Half responded, “I killed him, don’t worry about it, he’s dead.”13 Uzzle

testified that Half subsequently was killed and that she was told that Washington’s

brother “killed Half for killing [Washington].” Uzzle relocated to Louisiana after

Half’s death because she was “scared that [Washington’s brother] was going to

come looking for [her] [be]cause [she] knew that he had killed Half.”




      11
          Unlike in her grand jury and trial testimony, Uzzle testified that she saw
appellant that evening only after the shooting.
      12
            At trial, too, Uzzle testified that appellant was “surprised” to hear of the
shooting.
      13
         Uzzle also testified that Half was murdered not long after the shooting;
The court noted that Half died in March 1995 (before appellant’s trial).
                                        12

      Uzzle testified that after she moved to Louisiana, she had contact with

appellant’s family a “couple of times,” six or seven years after appellant’s trial,

and, at some point, talked with some of appellant’s family members about what she

knew about the murder and Half’s role in it. She had ceased having contact with

them for many years because she had been a government witness. She testified

that she did not tell the police about what Half did because she was afraid she

could go to jail for helping to smoke the cocaine and spend the money Half took

from Washington. She further testified that she did not tell the police that Half

shot Washington, even though she knew that appellant was suspected of the

murder, because she believed that telling the police that appellant was blocks away

and could not have been the shooter “would have been enough for them not to lock

him up.” She also agreed that her 30 or 40 years of substance abuse on and off had

affected her memory “[a] whole lot.”



      Brown testified at the IPA hearing that on August 14, 1994, when he was

fifteen years old and when it was dark outside, he was walking toward his uncle’s

house after leaving a friend’s home where he had been playing video games, when

he saw Half, whom he knew from “hang[ing] out” at the carryout, “shooting off at

some people” (“probably — like three males and one girl”) who were “coming
                                         13

outside the carryout.”14 At one point Brown testified that Half was “not even like

five feet away from” the carryout door when he started shooting, but at another

point agreed that Half was about 17 feet away from the carryout door when he

started shooting. Brown saw “sparks come out” and saw a man fall. Brown

testified on direct that he did not see Half do anything further with the gun and did

not see anything else Half did while the man was on the ground. On cross-

examination, however, asked about the statement in his affidavit that he rose up

from behind the car he was hiding behind and watched Half walk up and fire more

shots at the man,15 Brown testified that when Half was shooting, “he’s still walking

up on him. Not like he’s just standing there.”16 Brown further testified that he

ducked behind a car after seeing the shooting, but ran when he saw Half coming

his way. When Brown went to his uncle’s house and reported to his uncle and

mother what he had seen, his mother told him to say nothing about it. Brown told

      14
          Brown acknowledged that he had convictions for possession with intent
to distribute cocaine while armed, possession of a firearm during a crime of
violence, unlawful possession of ammunition, possession of an unregistered
firearm, carrying a pistol without a license, escape from an institution, destruction
of property, unauthorized use of a motor vehicle, and motor vehicle unlawful
taking, and also had a Bail Reform Act conviction.
      15
         When the prosecutor said on cross-examination, “That didn’t happen, did
it,” Brown replied, “If I said it happened[,] it had to have happened.”
      16
          As described above, Thompson testified at trial that the shooter was
“steadily moving” while he was shooting, and “wasn’t just standing in one spot
when he was shooting” at Washington.
                                          14

no one else about what he had seen and did not return to the neighborhood. Brown

testified that he did not know appellant “back then,” that he did not know who

appellant was prior to his walking into the courtroom, and that he became involved

in this matter only after reconnecting with appellant’s niece Rashida in 2009, after

running into her at the “food stamp place”; Rashida and Brown had been close

friends during the 1992-94 period, but, according to Brown, he had not seen her

since then. When Rashida and Brown saw each other in 2009, she asked Brown

why he had stopped coming to the neighborhood, and he told her about the

shooting he had witnessed at the carryout. Appellant’s sister thereafter showed

Brown a photograph of appellant, and Brown told her that appellant was not at the

scene of the shooting. After speaking with appellant’s sister, Brown spoke with an

investigator, who typed the affidavit for his signature.



      Appellant, who did not testify during his trial, was the final witness at the

IPA hearing.17 He denied being present when Washington was murdered, denied

playing any role in the murder, and denied having any contact with the firearm

reportedly used in the shooting.       He also testified that his altercation with

Washington a few months prior to the shooting was a mere “verbal dispute.”


      17
           Appellant acknowledged on cross-examination that he had other
convictions, for robbery and assault to avoid apprehension.
                                          15

Appellant further testified that he did not recall any conversation with Uzzle about

the potential that he would be a suspect in Washington’s murder. He explained

that he was one of a number of men in the neighborhood who were “allowed to

hang out” in the apartment where police found him and the alleged murder

weapon; that Half was one of the men who hung out there and was there, in the

back bedroom, on August 16, 1994, the day police found the alleged murder

weapon in a closet in the apartment’s back room; and that he (appellant) was not in

a closet in that bedroom. He further testified that he had never met Brown before

seeing him in the courtroom. As to Uzzle, appellant testified that he first learned

that she had been at or near the scene of the murder when she testified at trial. He

acknowledged that after his arrest, he did not try to contact her or ask his lawyer,

family, or anyone else to contact her before or during trial or prior to 2009.



      After the IPA hearing, the Superior Court judge issued a written order

explaining as to each of the witnesses why his or her testimony did not warrant a

new trial. We discuss the court’s reasoning in Parts IV and V below.
                                         16

                               III. Applicable Law



      In relevant part, the IPA provides that “at any time,” “[a] person convicted

of a criminal offense in the Superior Court . . . may move the court to vacate the

conviction or to grant a new trial on the grounds of actual innocence based on new

evidence.” D.C. Code §§ 22-4135 (a) and (b) (2012 Repl.).18 The motion must

“set forth specific, non-conclusory facts” and must identify the specific new

evidence, establish how it demonstrates the movant’s actual innocence, and

establish why the evidence is “not cumulative or impeaching.” § 22-4135 (c)(1)-

(3). As relevant in this case, “new evidence” is evidence that “[w]as not personally

known and could not, in the exercise of reasonable diligence, have been personally

known to the movant at the time of the trial or the plea proceeding[.]” D.C. Code §

22-4131 (7)(A).19 In determining whether to grant relief, the trial court “may

consider any relevant evidence, but shall consider the following: (A) The new

evidence; (B) How the new evidence demonstrates actual innocence; (C) Why the

      18
        The IPA also contains provisions pertaining to pre- and post-conviction
DNA testing that are not relevant here. See D.C. Code §§ 22-4132 and 22-4133.
      19
          “The new evidence provision of the IPA is broader and more inclusive
than the judicial test for newly discovered evidence under Super. Ct. Crim. R. 33,
as the IPA specifically provides for evidence that was known at the time of trial but
could not be produced . . . . However, the diligence requirements in the IPA and
Rule 33 are the same, as both require ‘reasonable’ or ‘due’ diligence.” Bouknight,
867 A.2d at 255.
                                          17

new evidence is or is not cumulative or impeaching[.]” § 22-4135 (g)(1)(A)-(C).

The motion must also include an affidavit by the movant stating, under penalty of

perjury, that the movant “is actually innocent of the crime that is the subject of the

motion, and that the new evidence was not deliberately withheld by the movant for

purposes of strategic advantage.” § 22-4135 (d)(1). If, after considering those

factors, “the court concludes that it is more likely than not that the movant is

actually innocent of the crime, the court shall grant a new trial.” § 22-4135 (g)(2).

If the court “concludes by clear and convincing evidence that the movant is

actually innocent of the crime, the court shall vacate the conviction and dismiss the

relevant count with prejudice.” § 22-4135 (g)(3).



      This court reviews the denial of a motion to vacate a conviction or for a new

trial under the IPA for abuse of discretion. See Richardson, 8 A.3d at 1248. “[W]e

must give great deference to the trial court’s role as the trier of fact on the ultimate

issue of ‘actual innocence’ under the IPA, and thus we apply the clearly erroneous

standard of review to the trial judge’s rejection of alleged newly discovered

evidence offered to prove ‘actual innocence.’” Id. at 1249 (citation omitted).

“Accordingly, the scope of our review is narrow, both on the question whether

appellant has been diligent in proffering ‘new evidence’ and whether that evidence

establishes appellant’s ‘actual innocence.’”       Id.    That said, “[t]he statutory
                                         18

construct itself fully accommodates consideration of the [IPA] movant’s

credibility.” Bouknight, 867 A.2d at 258. For that reason, this court will evaluate

whether the trial court has “unnecessar[il]y and inappropriate[ly] . . . depart[ed]

from that construct by recognizing [the movant’s] credibility as a separate basis for

[denying an IPA motion], independent of the considerations set forth by the

statute.” Id.



                        IV. The Motion Court’s Analysis



      The court found that Rodgers’ proffered testimony did not qualify as “new

evidence” within the meaning of the IPA because, even though Rodgers

purportedly “made himself known to multiple individuals . . . on the scene at the

time of the murder,” appellant failed to establish “what prevented him from

obtaining Mr. Rodgers’ testimony sooner.”         The court further found that the

inconsistency between Rodgers’ physical description of the shooter and Brown’s

physical description of the shooter called into doubt the reliability of Rodgers’

testimony and his “ability to perceive the events that night.”



      As to Uzzle’s testimony, the court concluded that it, too, was not “new

evidence.” The court emphasized that appellant was aware by the time Uzzle
                                           19

testified at trial, if not before, that “she had information about this offense[,]” i.e.,

“first-hand knowledge of the circumstances related to the murder of Mr.

Washington.” Yet, the court observed, despite appellant’s “close personal and

family ties” with Uzzle, “there is no indication that [he] did anything to discover at

that time the purported exculpatory evidence that [Uzzle] now proffers.” The court

found that “it would have taken minimal effort for [appellant] to contact Ms. Uzzle

and obtain th[e] favorable testimony she now purports to offer[,]” but that the

record gave no indication that either appellant or his counsel “ever attempted to

contact her or obtain her testimony.”



      The court also found that Uzzle’s affidavit and IPA hearing testimony

constituted — “at best” — “[i]mpeachment evidence [that] alone is insufficient to

establish a claim for relief under the IPA.” In addition, citing inconsistencies

between Uzzle’s trial and IPA hearing testimony, the court found that her hearing

testimony was “not sufficiently credible to show that ‘it is more likely than not that

[appellant] is actually innocent[.]’”20


      20
            The court noted that Uzzle’s first mention of the altercation between
Washington and Half on the night of the shooting came in her affidavit and IPA
hearing testimony, a “critically significant fact[]” that she could not have simply
overlooked had it been true. The court also observed that, in her grand jury and
trial testimony, Uzzle denied ever seeing Half with a gun, but claimed the opposite
in her affidavit and hearing testimony.
                                        20

      The court was satisfied that Brown’s testimony sufficed as new evidence,

finding “nothing to suggest that the exercise of due diligence would have identified

Mr. Brown any sooner.” However, the court found that appellant had not shown

that Uzzle’s and Rodgers’ testimony, “along with that of Mr. Brown[,] is more

than mere impeachment evidence[.]”        In addition, the court focused on the

“inconsistent and contradicted accounts” set out in Brown’s affidavit and his

hearing testimony, matters that the judge said “seriously undermine [Brown’s]

credibility” and that led the judge to conclude that the affidavit and testimony “do

not show ‘actual innocence.’”



      The court first took note of the contradiction between Brown’s and Rodgers’

physical descriptions of the shooter. See supra note 8. The court then catalogued

the internal inconsistencies between Brown’s affidavit and hearing testimony. The

court noted that Brown’s affidavit states that the shooting occurred “sometime

between 10 a.m. and 12 p.m.[,]” but testified at the hearing that the shooting

occurred at night. The court also characterized Brown’s affidavit as stating that he

“wanted to stop at the [c]arryout,” a (purported) statement that conflicted with

Brown’s hearing testimony that he “didn’t intend to stop” at the carryout, but

instead, “was intending to keep moving.” The court next cited Brown’s affidavit

statement that he saw Half shoot at a group of males exiting the carryout, which
                                           21

the judge contrasted with Brown’s hearing testimony about shots fired at “three

males and one girl” coming out of the carryout.21 The court also noted that Brown

stated in his affidavit that he saw Half walk over to Washington after the initial

shots and fire multiple rounds into his body, but (as described by the judge)

testified at the hearing that “after the initial shots, . . . everyone, including [Half],

fled the scene.”22 Finally, the court cited Brown’s affidavit statement that “[l]ater

in my life I met Joel Caston[,]” a statement the court contrasted to Brown’s hearing

testimony that (as the court put it) he “had never met [appellant].” The court found

that Brown’s inconsistent and contradicted accounts “fail[ed] to turn the heavy

weight of evidence produced at trial in favor of [appellant’s] innocence.”



      The court found that appellant’s hearing testimony was “significantly

inconsistent with that of his proffered witnesses and grossly undermine[d] the

      21
           At trial, Thompson testified that when Washington, Gene and Mark
exited the carryout, there were two other people whom he did not know near the
front door of the carryout.
      22
         Actually, Brown testified that after the man who had been shot fell to the
ground, Brown “ducked behind the car” and did not “see anything further that Half
did while the person was on the ground”; and that “[e]verybody just like start
running and the people was trying to help . . . the man but once I seen Half on my
way I ran the opposite way.” Brown’s testimony does suggest both that everybody
ran and that some people stayed to help the fallen man; the testimony possibly
meant that the gunshots caused everyone to run for cover briefly but that some
people then came to assist the victim.
                                          22

credibility of their affidavits and hearing testimony.” 23 The court stated in addition

that appellant’s “self-serving” testimony “does not sway the [c]ourt towards

finding [appellant] or any of his ‘newly found witnesses’ credible.”24



                            V. Appellant’s Arguments



      Appellant raises a number of challenges to the court’s ruling. He does not

challenge the court’s conclusion as to the Rodgers affidavit. As to Uzzle, however,

appellant argues that the court erred in concluding that her evidence was not “new”

and that it was “merely impeaching and not credible.” He also argues that the

court’s rejection of Brown’s testimony “solely because of unsupported or

      23
          The Order referred to inconsistencies between appellant’s testimony and
that of his proffered “witnesses” (plural), but specifically discussed only
inconsistencies between appellant’s and Uzzle’s accounts.
      24
           The court did not discuss whether appellant’s testimony was new
evidence, but acted well within its discretion in determining not to rely on
appellant’s testimony as a basis for relief. Appellant testified during the IPA
hearing that he did not testify at his trial on advice of counsel. Thus, he made a
strategic decision not to testify, thereby “deliberately withh[olding,] . . . for
purposes of strategic advantage[,]” D.C. Code § 22-4135 (d)(1), his exculpatory
account that he was never in the closet with the alleged murder weapon that police
recovered, and that Half was in the back bedroom where the gun was found. Even
if appellant’s account at the IPA hearing was truthful, “his deliberate strategy of
withholding from the jury a truthful account” amounted to deliberate withholding
under § 22-4135(d)(1), and thus his account does not constitute “new evidence”
that can satisfy the prerequisite for relief under the statute. Bouknight, 867 A.2d at
254.
                                        23

insignificant inconsistencies between his affidavit and testimony, [was] clear

error.” He further contends that the court erroneously failed to consider how

appellant’s testimony demonstrates actual innocence and erred in rejecting it on the

ground that it was “inconsistent with Uzzle’s testimony about insignificant events

prior and subsequent to the murder.” In addition, appellant argues that the court

“erroneously assumed that the evidence at trial was ‘heavy.’” Finally, appellant

argues that the court “erroneously required each piece of [appellant’s] evidence to

alone prove his actual innocence without regard to other evidence in the case[.]”

More specifically, appellant argues that when the sworn accounts from appellant’s

proffered witnesses are taken together, they have “more credibility than the trial

court took into account,” and appellant’s claim of actual innocence is strengthened.

For the reasons discussed below, we conclude that some, but not all, of appellant’s

arguments have traction.



                                   VI. Analysis



      A. Appellant’s diligence with respect to Uzzle and the court’s ruling that
      Uzzle’s evidence was not credible


      As described above, Uzzle’s trial testimony was to the effect that she had

first-hand knowledge about the murder scene and aftermath, and appellant
                                         24

confirmed at the IPA hearing that he did not try to contact Uzzle or ask anyone else

to contact her at any time during the trial. Our case law “hold[s] individuals

asserting their right to relief on the basis of new evidence to a high standard of

diligence in discovering that evidence.” Richardson, 8 A.3d at 1249. The factual

record and our case law fully support the court’s conclusion that appellant did not

exercise the requisite due diligence with respect to Uzzle. We held in Richardson

that where it “came to light on the first day of trial” that a witness had relevant

information about facts surrounding the charged crime, the “exercise of due

diligence should have caused appellant to attempt to speak with [the witness]

immediately upon learning of her connection[.]” Id. at 1249. The fact that Uzzle’s

trial testimony did not reveal that she might know who the shooter was, is “a lame

excuse for appellant’s failure to make any effort to contact” her, id. at 1250, where

she professed to have been on the scene in the immediate aftermath of the shooting

(when Half was going through Washington’s pockets),25 and where appellant’s

trial counsel actually pursued a line of questioning about whether Half “was upset

with [Washington]” before the shooting. Especially given our deferential and

narrow standard of review on the question whether appellant has been diligent in


      25
         As already described, Uzzle testified at trial that when she saw
Washington’s body on the ground a couple of minutes after she heard shots, Gene,
Mark, Thompson, and Half were all on the scene.
                                         25

proffering “new evidence,” we can find no erroneous exercise of discretion in the

court’s conclusion regarding appellant’s efforts with respect to Uzzle.26



      We also defer to the court’s determination about the credibility of Uzzle’s

hearing testimony, because “witness recantations in general are properly viewed

with great suspicion.” Turner v. United States, 116 A.3d 894, 927 (D.C. 2015)

(internal quotation marks omitted); see also Johnson v. United States, 33 A.3d 361,

371 (D.C. 2011) (“Recanting affidavits and witnesses are looked upon with the

utmost suspicion[,]” and the trial court acts within its authority in rejecting a

recantation as not credible (internal quotation marks omitted)). We are satisfied

that the court reasonably found that Uzzle’s hearing-testimony recantation (e.g., of

her grand jury testimony that she did not know who shot Washington, and that Half

said nothing to Washington when Half and Uzzle saw Washington before the

shooting) was not credible. Although Uzzle claimed that she did not testify about

      26
          Appellant did not establish at the IPA hearing that Uzzle would have
withheld the exculpatory evidence in a pre- or mid-trial interview with the defense
or that she would have refused to talk with the defense altogether. And while
appellant could have asked Uzzle about those matters at the IPA hearing, he did
not. This record leaves us with some doubts about the court’s seemingly
speculative conclusion that it would have taken “minimal effort” for appellant to
“obtain [from Uzzle] th[e] favorable testimony she now purports to offer[.]”
However, in light of our conclusion that appellant failed to meet the IPA diligence
standard with respect to Uzzle’s testimony, as well as the deference we accord to
the court’s determination that Uzzle’s hearing testimony was not credible, we need
not decide whether the court had an adequate basis for that conclusion.
                                            26

Half’s role previously because she did not want to go to jail for having shared in

what Half plundered from Washington’s pockets, she gave no reason why — when

Half was already dead — she could not have testified about Half’s putative

confession and his motive for taking revenge against Washington without

implicating herself.27 As the court put it, Uzzle gave no satisfactory explanation

for her omission of “critically significant facts” at trial.28



       Appellant contends, however, that the court should not have dismissed

Uzzle’s hearing-testimony account by viewing it “in isolation.” We agree that it is

not proper for a court evaluating a claim of actual innocence to evaluate each piece


       27
          Moreover, as described above, Uzzle actually admitted at trial to having
participated with Half in stealing Washington’s money.
       28
          Appellant relies on People v. Deacon, 946 N.Y.S.2d 613 (N.Y. App. Div.
2012), in which the court stated that “[w]hile recantation evidence is considered to
be the most unreliable form of evidence, its credibility may be established if
certain factors are present, including its inherent believability, the demeanor of the
recanting witness, the existence of corroborating evidence, the reasons offered for
the recantation of the previous testimony, the relationship between the recanting
witness and the defendant, and the importance of facts established at trial as
reaffirmed in the recantation.” Id. at 618 (citation and internal quotation marks
omitted). In explaining in that case why the witness’s recantation had an “aura of
believability,” the Deacon court emphasized that “there appear[ed] to be no
relationship between [the recanting witness] and the defendant of a nature that
would motivate [the witness] to inappropriately come to the defendant’s aid.” Id.
Here, by contrast, Uzzle had known appellant all his life and regarded him as a son
or nephew.
                                         27

of evidence in isolation in a manner that (as appellant puts it) “require[s] each

piece of evidence to alone prove [the defendant’s] actual innocence without regard

to other evidence in the case[.]” But appellant’s argument goes further.           He

contends that when Uzzle’s testimony about Half’s motive, appellant’s testimony

that Half was in the room with the murder weapon, and Brown’s testimony that he

saw Half shoot Washington, are taken together, Uzzle’s motive evidence has “far

more credibility than the trial court took into account.” An appropriate generic

response to this argument is perhaps that an accumulation of multiple witnesses’

discredited testimony has no more strength than a single witness’s discredited

testimony (because, as one court put it in mathematical terms to make a similar

point, “any number multiplied by zero is still zero”29). Just as a defendant cannot

rely on properly discredited testimony to bolster the reliability of other evidence he

has put forward, he cannot rely on that other evidence to bolster properly

discredited testimony.




      29
           Gudino v. Allison, No. 1:10-CV-01310-AWI, 2013 WL 1281620, at *18
(E.D. Cal. Mar. 27, 2013); see also Stephenson v. Connecticut, 639 F. App’x 742,
745 (2d Cir. Feb. 24, 2016) (letter from witness retracting certain portions of his
trial testimony “must first be found credible for it to be relevant to the question
whether or not, in concert with the other evidence . . . , it presents a compelling
case of innocence”).
                                         28

      More to the point in the present context, this court has held that “[w]hen a

convicted person moves for a new trial under [the IPA] by submitting [evidence] of

a government witness purporting to recant h[er] trial testimony, . . . if the judge

reasonably finds the recantation to be not credible, that determination properly

‘ends the inquiry[.]’” Bell v. United States, 871 A.2d 1199, 1201-02 (D.C. 2005)

(emphasis added); see also Turner, 116 A.3d at 927 n.94, 928-29 (D.C. 2015)

(discussing the recantations by four witnesses and holding that “[w]ithout the

discredited recantations, appellants’ remaining new evidence was clearly not

enough to overcome the government’s proof of their guilt and show their actual

innocence by a preponderance of the evidence”). Because D.C. Code § 22-4135

(g)(1) expressly gives the trial court authority to “consider any relevant evidence”

in determining whether to grant relief, the court had discretion to compare the

content of the discredited accounts for purposes of its analysis.30 But as the

analysis in Turner establishes, in connection with an IPA motion, a mere

accumulation of (consistent but) discredited testimony does not make it more likely

than not that any of the discredited testimony is true. Turner, 116 A.3d at 929.




      30
         Thus, contrary to appellant’s argument, the court did not err in examining
appellant’s testimony for its consistency vel non with Uzzle’s testimony.
                                        29

       B. The ruling that Brown’s evidence was merely “impeaching”



       We cannot agree with the court’s conclusion that Brown’s testimony was no

more than “mere impeachment evidence.” It is true that Brown’s testimony that

Half was the shooter impeached Thompson’s trial testimony that appellant was the

shooter. But, if believed, Brown’s testimony that he saw Half shoot Washington

was also directly and completely exculpatory as to appellant — establishing that he

“did not commit the crime of which he . . . was convicted,” D.C. Code § 22-4131

(1).



       While the IPA does not define the term “impeaching,” implicit in our IPA

case law is an understanding that evidence is merely “impeaching” for IPA

purposes when, if credited, it does not establish that the appellant is actually

innocent. For example, in Richardson, we noted that testimony (by one Croskey)

proffered as “new evidence” “[a]t most . . . might have been used to impeach” the

identification offered by a trial witness, and was “not proof of [Richardson’s]

actual innocence,” because “Croskey definitively testified that she did not see the

shooter, and she did not and could not say that appellant was not the shooter[.]” 8

A.3d at 1250. Our case law under Rule 33 is to the same effect. See Prophet v.

United States, 707 A.2d 775, 778 (D.C. 1998) (rejecting the conclusion reached by
                                        30

the trial court, namely, that the affidavit from appellant’s co-defendant, in which

the co-defendant assumed the entire blame, was “no more than impeaching

evidence,” reasoning that the “affidavit proffered substantive evidence and did not

merely attack the general credibility of” the government’s trial witness). Other

courts have similarly recognized a “pivotally important” distinction between

“impeaching” (but also exculpatory) and other impeaching evidence. See, e.g.,

State v. Hunt, 116 A.3d 477, 489 (Md. 2015) (explaining that a petitioner for a writ

of actual innocence must do more than present “[n]ewly discovered evidence that a

State’s witness had a number of convictions” implicating her “truth and veracity,”

or evidence that the State’s witness gave “deliberately false” testimony “about

inconsequential details that did [not] go to the core question of guilt or

innocence”; the petitioner must present “directly exculpatory evidence on the

merits”).31




      31
          See also United States v. Quiles, 618 F.3d 383, 395 (3d Cir. 2010)
(Evidence is not “merely impeaching” if “there is a strong exculpatory connection
between the newly discovered impeachment evidence and the charge against the
defendant”); Ward v. State, 108 A.3d 507, 520 (Md. Ct. Spec. App. 2015)
(“[E]vidence attacking the merits of inculpatory testimony should not be dismissed
as ‘merely impeaching,’ even if it happens to be ‘coincidentally impeaching.’”);
Love v. State, 621 A.2d 910, 917 (Md. Ct. Spec. App. 1993) (“[T]he most critical
exculpatory evidence always is ‘impeaching’ of the State’s case . . . not ‘merely
impeaching.’”).
                                        31

      Here, Brown’s testimony, if true, meant that appellant could not have been

the shooter. It was error to reject it as “mere impeachment evidence.”32



      C. The significance of inconsistencies



      The court correctly observed that Brown’s hearing testimony differed in

several respects from certain statements in his affidavit. In assessing Brown’s

credibility, the court was certainly entitled to take into account internal

inconsistencies.33   However, at least one purported inconsistency reflects the

court’s own loose paraphrasing of Brown’s testimony.34 Also, because the record



      32
          The court made the same error in rejecting, as “at best” impeachment
evidence, Uzzle’s hearing testimony that Half had a motive to kill Washington and
later confessed to the murder.
      33
          A witness’s “story itself may be so internally inconsistent . . . that a
reasonable factfinder would not credit it.” Anderson v. Bessemer City, 470 U.S.
564, 575 (1985).
      34
           To wit, as described above, the court characterized Brown’s affidavit as
stating that he “wanted to stop by the [c]arryout,” a (purported) statement that
conflicted with Brown’s hearing testimony that he “didn’t intend to stop” at the
carryout and, instead, “was intending to keep moving.” Actually, Brown’s
affidavit states that “on my way home I stopped at the carryout. When I made it to
the carryout parking lot, I saw Haf coming from the phone booth that was located
in the parking lot going toward the carryout’s front door. . . . Before it
[presumably, “he” or “I”] could reach the carryout Haf fired a [sic] multiple shots
at a group of males who were coming out of the carryout’s front door.”
                                          32

makes clear that someone other than Brown typed his affidavit and that Brown’s

attention to language and detail was wanting,35 the record compelled a nuanced

analysis of the inconsistencies.    In addition, we are concerned that the court’s

assessment as to Brown may have been tainted by a failure to appreciate that

Brown’s evidence was not merely impeaching. We also want to be sure that the

force of Brown’s exculpatory testimony is not discounted solely on the basis of

inconsistencies that are minor, or that pertain to inconsequential matters, or that are

(or might have been, upon follow-up inquiry) explainable.



      Courts are in general agreement that the significance of inconsistencies

between a witness’s pre-hearing and hearing statements is a determination of law,


      35
            Brown, who did not finish high school, and who explained that his
“cursory [sic] writing ain’t so good,” testified that he neither read the affidavit with
care (we note that he did not correct the “Before it could reach the carryout” or the
“a multiple shots” mentioned supra in note 34) nor executed it with care (as he
testified, in his signature he “ain’t finish the last E” in his given name, “Jermaine,”
signing it “Jermain” instead). His hearing testimony also demonstrated that his use
of language is far from precise. Appellant’s brief cites, as one example of this,
Brown’s testimony that after the shooting, a young lady cried out, and “everything
went AWOL.” For those reasons, even if (to give just one example) all Brown
meant to say in his affidavit regarding when he first became familiar with
appellant’s case was that he learned of appellant when he saw a photo of appellant
and spoke with appellant’s sister in 2009, it does not seem implausible that he
would nonetheless have signed a statement that says “[l]ater in my life I met Joel
Caston.” Similarly, it is not difficult to believe that Brown would not have paused
over immaterial errors in the affidavit.
                                          33

subject to appellate scrutiny.36 Courts also agree that the circumstances in which

inconsistent statements were made, and the declarants’ explanations for the

inconsistencies, must be taken into account.37        “[M]inor inconsistencies and


      36
          See, e.g., Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir. 2007) (“Some of
the inconsistencies [between the petitioner’s testimony at the immigration hearing
and the written statement that he had submitted earlier in support of his application
for asylum] . . . are trivial — the sort of innocent mistake that a person testifying
about events that had occurred years earlier would be likely to make”); Latifi v.
Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (finding error in immigration judge’s
adverse credibility determination premised on asylum applicant’s “essentially
telling three different stories [in his airport interview, credible fear interview, and
hearing testimony],” because the discrepancies in the applicant’s account were “far
from ‘significant and numerous,’ but rather insignificant and trivial”); State v.
Wilcox, 758 A.2d 824, 834 (Conn. 2000) (holding that where “[e]ssentially, the
differences between the victim’s trial testimony and what she had told [the victim’s
advocate] were: (1) that she had entered the defendant’s vehicle while walking
down the driveway of the bar rather than in the parking lot; and (2) that she had
planned on walking home from the bar, although she told [the victim’s advocate]
that she had asked Lawrence whether the defendant was a person from whom it
would be OK to accept a ride,” “the victim’s statements [as memorialized by the
victim’s advocate] did not substantially differ from her testimony at trial”). As is
reflected in two of the foregoing citations and those in the immediately following
footnotes, issues about the significance of inconsistencies between a witness’s pre-
hearing and hearing statements seem to have arisen most often in the asylum-
application context, where courts have focused on discrepancies between the
written applications or interview statements of immigrants seeking asylum, and
those individuals’ later sworn testimony at asylum hearings.
      37
          See, e.g., Kai Ting Huang v. Gonzales, 143 F. App’x 502, 504 (3d Cir.
2005) (“We are cautious in our reliance on airport interviews, and standing alone,
inconsistencies between statements at such an interview and at later proceedings
will not support an adverse credibility determination.”); Arredondo v. Delano
Farms Co., 301 F.R.D. 493, 518 (E.D. Cal. 2014) (holding, in case involving
alleged violations of state wage and hour provisions, that “considering the nature
and circumstances in which [employees’] statements were made and recorded . . .
                                                                         (continued…)
                                          34

omissions will not support an adverse credibility determination.” Zhang v. Holder,

737 F.3d 501, 504 (8th Cir. 2013) (internal quotation marks omitted).38


(…continued)
the [c]ourt cannot find they reflect significant inconsistencies”); see also Beardsley
v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014) (“[W]ithout some attempt by the ALJ
to explore the supposed contradictions here, they do not provide a sound basis for
concluding that Ms. Beardsley’s report was inaccurate.” (internal quotation marks
and alterations omitted)); Halajanyan v. Holder, 380 F. App’x 636, 637, 638 (9th
Cir. 2010) (reasoning that “[t]o the extent that Halajanyan’s testimony about
whether she was in Armenia or Russia in 1999 conflicts with her son’s asylum
application, she was never given an opportunity to explain the discrepancy”; and
holding that “unclear testimony may not serve as substantial evidence for an
adverse credibility finding when an applicant is not given the chance to attempt to
clarify his or her testimony”).
      38
           See also Yaogang Ren v. Holder, 648 F.3d 1079, 1084-85 (9th Cir. 2011)
(holding that even after a 2005 change in federal law that expressly permits
immigration judges to consider “any inaccuracies or falsehoods in [an asylum
applicant’s] statements, without regard to whether [an inconsistency, inaccuracy,
or falsehood] go[es] to the heart of the applicant’s claim,” immigration judges
“remain obligated to provide specific and cogent reasons supporting an adverse
credibility determination[,]” reasons which “must consist of something more than
trivial inconsistencies that under the total circumstances have no bearing on a
petitioner’s veracity”; and that judges “should recognize that the normal limits of
human understanding and memory may make some inconsistencies or lack of
recall present in any witness’s case.”) (internal quotation marks, citations, and
alterations omitted); accord, Chun Sui Yuan v. Lynch, No. 15-2834, 2016 WL
3536667, *4, 7 (7th Cir. June 28, 2016) (explaining that the Board of Immigration
Appeals and immigration judges “still must distinguish between inconsistencies
that are material and those that are trivial” and that “reasonable explanations for
discrepancies must be considered”; and concluding that “the purported
inconsistencies regarding Yuan’s injuries and time in the hospital, his method of
transportation to the hospital, and whether or not government officials questioned
him at his workplace are either so easily explained or so trivial as to call into doubt
the Board’s decision”); Mamane v. Lynch, 637 F. App’x 874, 884 (6th Cir. 2016)
(“[I]nconsistencies or inaccuracies must always be considered in light of the
                                                                         (continued…)
                                         35

      The court did not address (and did not consider explicitly) whether the

inconsistencies between Brown’s affidavit and hearing testimony that the court

described were significant. We will not substitute our own judgment about the

significance vel non of the inconsistencies, for the court’s initial determination.

That said, it does seem to us that at least some of the inconsistencies the court

highlighted pertain to seemingly unimportant facts and should not weigh heavily

(if at all) toward an adverse credibility determination. That observation applies

most obviously to the inconsistency cited first in the court’s ruling: Brown’s

(…continued)
‘totality of the circumstances.’”); Jin v. Holder, 439 F. App’x 591, 592 (9th Cir.
2011) (favorably citing the principle that “a minor inconsistency in identifying the
location of a person’s persecution will not support an adverse credibility
determination”); Zheng v. Holder, 530 F. App’x 87, 88 (2d Cir. 2013) (“These one-
and two-day inconsistencies [about when certain events occurred], which Zheng
promptly corrected, in testimony given more than a year and one half after the
events, are too trivial to lend support to a finding that Zheng lacked credibility.”);
Halajanyan, 380 F. App’x at 637, 638 (stating that “minor inconsistencies in the
record, such as the date of Halajanyan’s son’s arrest and the relative timing of the
search of her home . . . which cannot be viewed as attempts to enhance
Halajanyan’s claims of persecution, are too insignificant to support an adverse
finding regarding Halajanyan’s credibility generally”); cf. Walsh v. District of
Columbia Police & Firefighters Retirement & Relief Bd., 523 A.2d 562, 566 (D.C.
1987) (noting that the Board cited inconsistencies in the claimant’s testimony as a
basis for an adverse credibility determination and concluding that “the testimonial
evidence relied on here to make this determination does not rise to the level of
substantial evidence, even if the purported inconsistencies are assumed to exist”);
Criminal Jury Instructions for the District of Columbia No. 2.200 (“Credibility of
Witnesses”) (instruction, with respect to inconsistencies or discrepancies in the
testimony of a witness, that “[i]n weighing the effect of the inconsistency or
discrepancy, always consider whether it pertains to a matter of important or
unimportant detail”).
                                         36

hearing testimony that the shooting occurred at night, versus his affidavit statement

that the shooting occurred between 10 a.m. and 12 p.m. The court did not consider

(or at least did not consider explicitly) whether this inconsistency might reflect the

“common mistake” of transposing “a.m.” for “p.m.,”39 or vice versa, or reflect

confusion about whether midnight is 12 p.m. or 12 a.m. The court also did not

address Brown’s explanation at the hearing that he “did not look at . . . the a.m.

part” when reviewing the affidavit.      Cf. Stephenson, 639 F. App’x at 745-46

(remanding actual innocence claim to the trial court where that court failed to

address witness’s explanation for the inconsistency between his trial testimony and

the statements he made in a letter to the court submitted after the defendant’s

conviction).



      The inconsistency between Brown’s affidavit statement about shots fired

toward a group of males exiting the carryout and his hearing testimony that the

group might “probably” have included “one girl” also strikes us as relatively


      39
          Cf. Hadley v. Journal Broad. Grp., Inc., No. 11-C-147, 2012 WL 523752,
*2 (E.D. Wis. Feb. 16, 2012) (noting that plaintiff “had accidentally entered “a.m.”
instead of “p.m.” on two separate occasions”); United States v. Wilkerson,
3:10CR75-WHA, 2010 WL 4624046, *1 (M.D. Ala. Aug. 18. 2010) (describing
defendant’s contention that “the search warrant return and inventory incorrectly
state that the return was made at 2:17 a.m. rather than 2:17 p.m.”); 1199 Hous.
Corp. v. Griffin, 520 N.Y.S.2d 93, 94 (N.Y. Civ. Ct. 1987) (“The second process
server also twice seems to have reversed the use of a.m. and p.m.”).
                                        37

unimportant. We note that Brown’s hearing testimony about a young lady crying

out after shots were fired seems consistent with his testimony that the individuals

who were in front of the carryout at the time of the shooting included “one girl as

well as three men.”      We further observe that, without having credited the

description of the shooter given by Rodgers in his affidavit, the court had no basis

for discrediting Brown’s conflicting description. To be sure, where the proffered

support for a claim of actual innocence consists solely of affidavits that give

inconsistent accounts about the crime, a court may conclude that the movant has

not met his burden.40 But here, Brown (who, unlike Rodgers, claimed to know

Half) not only signed an affidavit, but also appeared for the IPA hearing. At the

hearing, no one asked Brown about his description of Half (and, similarly, no one

asked Uzzle to describe Half). In these circumstances, the inconsistency between

Brown’s and Rodgers’ descriptions of the shooter did not provide an adequate

basis for concluding that Brown’s exculpatory testimony was not credible.41


      40
          Cf. Herrera v. Collins, 506 U.S. 390, 418 (1993) (reasoning that because
the affidavits of the petitioners’ witnesses filed in a habeas proceeding contained
inconsistent accounts about petitioner’s whereabouts on the night of the killings,
about the direction in which the claimed murderer’s vehicle was heading when the
murders took place, and about the number of people in the vehicle, the affidavits
“therefore fail[ed] to provide a convincing account of what took place on the night
[the victims] were killed”).
      41
         “[C]redibility determinations cannot be based on affidavits[.]” Bellinger
v. United States, 127 A.3d 505, 515 (D.C. 2015) (quoting Newman v. United
                                                                      (continued…)
                                         38

       It cannot be gainsaid that the ultimate responsibility to determine Brown’s

credibility and whether appellant is more likely than not actually innocent lies with

the Superior Court judge, and that the Superior Court judge’s factual findings

“anchored in credibility assessments derived from personal observations of the

witnesses [are] beyond appellate reversal unless those factual findings are clearly

erroneous.’” Hill v. United States, 664 A.2d 347, 353 n.10 (D.C. 1995). Notably,

however, in this case the court did not find Brown generally incredible; the court

found no reason to reject Brown’s testimony that, for years, he never returned to

the neighborhood after the shooting and had no contact with anyone connected to

the case. The court also did not cite Brown’s demeanor as a reason for discrediting

his account of the shooting. Thus, we are not confronted here with a credibility

determination that was “based on factors that [could] only be ascertained after

observing the witness testify.” David v. United States, 957 A.2d 4, 8 (D.C. 2008)

(internal quotation marks omitted). In addition, it is clear that “[d]espite the

inconsistencies and credibility flaws” of a proffered witness, the witness’s

(…continued)
States, 705 A.2d 246, 261 (D.C. 1997)); see also Thomas v. United States, 942
A.2d 1180, 1185 (D.C. 2008) (“[A]n evidentiary hearing was necessary to assess
Ms. Dobbins’s credibility, particularly because she had not testified at trial.”). An
IPA-motion judge may be able to “assess the credibility of [an] affidavit” if the
judge heard testimony from the affiant at trial, see Bell, 871 A.2d at 1201, but that
emphatically was not the case here. Judge Jackson did not preside at appellant’s
trial, Rodgers did not testify at trial, and there was no trial testimony about Half’s
physical characteristics.
                                         39

testimony can still have “substantial exculpatory potential[.]” Rollerson v. United

States, 127 A.3d 1220, 1228 (D.C. 2015).



      D. The “heavy” weight of the evidence produced at trial



      The court found that Brown’s testimony “fail[ed] to turn the heavy weight of

evidence produced at trial in favor of [appellant’s] innocence.” However, Judge

Jackson did not preside over appellant’s trial, and we thus are constrained to

observe that his assessment of the weight of the trial evidence can be no better than

our own.42 We think it was incumbent on the court to at least consider the

potential weaknesses in the government’s case that appellant cited in his IPA

papers. As appellant highlights, Thompson, the sole eyewitness to the shooting

who testified at trial, had pled guilty and been convicted of murder at the time of

appellant’s trial, but had not yet been sentenced, and hoped for a favorable

recommendation from the government in exchange for his inculpatory testimony




      42
         Judge Jackson acknowledged during the proceeding in which he decided
to schedule an IPA hearing that because he was not the trial judge, he did not “have
the same perspective of the witnesses [and] the evidence . . . that the trial judge
would have, even after so many years have passed since the original trial.”
                                        40

against appellant.43 With reference to the firearms examiner’s testimony at trial

that bullet fragments recovered from Washington’s body and from the crime scene

“were in fact fired through the barrel of th[e] .44 Magnum revolver” that police

found in the closet where appellant was hiding, appellant also cited in his IPA

motion papers the “considerable change to the level of confidence given firearm

and toolmark identification evidence,” a change this court has recently recognized.

See Gardner v. United States, 140 A.3d 1172, ____ (D.C. 2016) (citing a National

Research Council report stating that “[t]he validity of the fundamental assumptions

of uniqueness and reproducibility of firearms-related toolmarks has not yet been

fully demonstrated,” and holding that “in this jurisdiction a firearms and toolmark

expert may not give an unqualified opinion, or testify with absolute or 100%

certainty, that based on ballistics pattern comparison matching a fatal shot was

fired from one firearm, to the exclusion of all other firearms”). The court’s ruling

did not address these matters.




      43
          Also, Thompson initially testified at trial that he knew appellant from
having worked with him “a while ago” during a summer job and saw appellant
“[o]ff and on,” but was impeached with his grand jury testimony that he knew
appellant because he had seen him “around” about a week before the shooting.
The court had no basis for assessing the credibility of Thompson’s trial testimony.
                                         41

      E. Appellant’s testimony and its effect



      We discern no basis for disturbing the court’s ruling that appellant’s “self-

serving” testimony was not credible, especially because it “contradict[ed] the less

than favorable aspects of the testimony of his proffered witness” Uzzle. As noted

above, however, the judge also found that appellant’s hearing testimony “grossly

undermine[d] the credibility of the[] affidavits and hearing testimony” of “his

proffered witnesses.” In light of that statement, it appears to us that “[t]he judge’s

evaluation of [appellant’s] credibility remained . . . a matter that informed the

judge’s rulings on the matters upon which the IPA required him to rule.”

Bouknight, 867 A.2d at 258.44 We have concern, as we did in Bouknight, that the

court’s “assessment of [appellant’s] testimony as incredible” was a “separate

ground for denial of [appellant’s] motion,” id. at 257, i.e., that the judge’s

evaluation of the statutory factors he was required to consider, “in particular, his

consideration of how and whether the proffered ‘new evidence [(Brown’s

testimony)] demonstrates actual innocence’ . . . depended upon the judge’s

      44
           Appellant asserts in his Reply Brief that “[t]his is not a case like
Bouknight in which the trial’s court’s ‘emphatic credibility ruling’ . . . [about] the
defendant’s ‘repeated lies’” was a compelling factor in denial of the IPA motion.
Appellant may be correct that the court’s view that appellant’s hearing testimony
“grossly undermine[d] the credibility of the[] affidavits and hearing testimony” of
his proffered witnesses, was not the most critical factor in the court’s denial of the
IPA motion, but it does appear to have played a role.
                                          42

assessment of [appellant’s] credibility.” Id. at 257-58. To the extent that the lack

of credence the court placed in appellant’s hearing testimony tainted Brown’s

exculpatory “new evidence” and rendered the judge “unable to come to the

conclusion that it is more likely than not that [appellant] is actually innocent of the

crime[,]” id. at 258 (internal quotation marks omitted), the judge’s credibility

assessment as to appellant improperly “gutted the core of [appellant’s] IPA

motion,” giving appellant “no chance of prevailing upon consideration of all the

factors the IPA says must be considered.” Id.



                                         ***




      For all the foregoing reasons, we conclude that a remand is in order for the

court to consider the significance vel non of the inconsistencies between Brown’s

affidavit statements and hearing testimony;45 to consider the force of Brown’s

exculpatory (and not-merely-impeaching) testimony in light of asserted

weaknesses in the government case at trial and the evidence as a whole; and to


      45
          Cf. Zheng, 530 F. App’x at 88-89 (“In view of the fact that the other
inconsistencies noted by the [immigration judge] are at best of only marginal
significance, we conclude that a remand is warranted for reconsideration of
Zheng’s credibility, without regard to the two items concerning the October
dates.”).
                                        43

assess the credibility of Brown’s testimony unaffected by the court’s assessment of

appellant’s credibility. Accordingly, the trial court’s order is hereby vacated and

the matter remanded for further proceedings consistent with this opinion.



                                             So ordered.
