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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 14-CO-887
                                                                             08/2/2018
                     MACARTHUR D. WILLIAMS, APPELLANT,

                                         v.

                             UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                            of the District of Columbia
                                  (FEL-9907-97)

                       (Hon. Henry F. Greene, Trial Judge)

(Submitted January 9, 2018                                 Decided April 26, 2018)

      Sicilia C. Englert was on the brief for appellant.

       Chimnomnso N. Kalu, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney at the time the brief was filed,
Elizabeth Trosman, Suzanne Grealy Curt, and Timothy Lucas, Assistant United
States Attorneys were on the brief for appellee.

     Before BLACKBURNE-RIGSBY, Chief Judge, EASTERLY, Associate Judge, and
FERREN, Senior Judge.

      
           The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court‟s
grant of appellee‟s motion to publish.

      After the initial April 26, 2018, issuance of this decision, this court added a
new second paragraph in part I regarding the factual background of the murder.
                                         2


      FERREN, Senior Judge: On June 30, 1998, appellant MacArthur Williams

and his co-defendant, Michael McCullough, were convicted of a number of

offenses in connection with the shooting death of Sharon Jackson.1 This court

affirmed his convictions on direct appeal.2 Appellant subsequently filed a motion

for relief pursuant to the Innocence Protection Act (“IPA”), 3 in which he alleged

there was new evidence proving his actual innocence. After a two-day hearing, the

trial court denied his motion. On appeal, appellant asserts that the trial court

abused its discretion in denying his motion to vacate convictions for two reasons:

(1) the trial court assessed the witnesses‟ credibility without addressing the

remaining statutorily mandated IPA factors, and (2) the trial court impermissibly

made credibility findings based on minor inconsistencies. Discerning no abuse of

discretion, we affirm.



                                        I.

      1
          Appellant was convicted of obstruction of justice, D.C. Code § 22-722
(a)(4) (1996); conspiracy to commit murder and obstruction of justice, D.C. Code
§§ 22-105a, -722, -2401, -3202, 3204 (1996); first-degree premeditated murder
while armed, D.C. Code §§ 22-2401, -3202; possession of a firearm during the
commission of a crime of violence, D.C. Code § 22-3204 (b); and carrying a pistol
without a license, D.C. Code § 22-3204 (a).
      2
          McCullough v. United States, 827 A.2d 48 (D.C. 2003).
      3
          D.C. Code § 22-4135 (2012 Repl.).
                                         3



      The IPA provides that “[a] person convicted of a criminal offense in the

Superior Court of the District of Columbia may move the court to vacate the

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

evidence.”4 On March 30, 2012, appellant filed a pro se motion for a new trial

alleging actual innocence based on newly discovered evidence.           Appellant

submitted two affidavits in support of his request, one from a purported alibi

witness, Larry Bradley, and one from appellant himself.          The trial court

subsequently appointed counsel for appellant and scheduled an evidentiary

hearing.



      In 1997, appellant and his co-defendant, Michael McCullough, learned that

Sharon Jackson had “snitched on [Elliot] Wallace and [Andrew] Tillman” by

cooperating with investigators on an open homicide case.5 “After confirming that

Jackson had indeed gone to the police” to cooperate, appellant and his co-

defendant “decided that the best thing to do was to kill Jackson.”6 On December 1,


      4
           D.C. Code § 22-4135 (a).
      5
           McCullough, 827 A.2d at 54.
      6
           Id.
                                          4

1997, Jackson was shot four times in front of an apartment building located on

1527 Park Road, N.W., Washington, D.C.7 Immediately after the shooting, Mack

Williams, appellant‟s father, who was in the basement apartment at the time of the

shooting, “heard [appellant‟s] voice in the area of the shooting urging someone to

hurry as he fled and then saw his son leave through the backdoor of the apartment

building, get into a car with another person, and leave the area.”8 Both appellant‟s

father, as well as appellant‟s brother, testified to hearing appellant discuss

Jackson‟s impending death in the week prior to the shooting.9



      Bradley testified, consistently with his affidavit, that in the evening hours of

December 1, 1997, he was in the front passenger seat of a car parked in the alley of

14th Street and Park Row in between 14th Street and Monroe Street in Northeast

Washington, D.C., drinking alcohol with a friend. While he was in the car, he saw

a man known as Mikey-D come out of the back of the building and get into a

vehicle in the alley. Shortly thereafter, Bradley saw appellant, who he knew as

Mackavelli Love, come out of the same building and walk toward Mikey-D‟s



      7
          Id.
      8
          Id.
      9
          Id.
                                           5

vehicle.10 Bradley then observed appellant making what Bradley believed to be a

drug transaction.     While observing the transaction, Bradley heard gunshots.

Immediately thereafter, appellant jumped into the vehicle with Mikey-D and

“pulled off” out of the alley while “the individual that [appellant] was serving[] ran

down the alley.” Moments later, Bradley saw Travis Singleton and a man known

as “Marcelle” running three or four feet in front of the car in which Bradley was

sitting with his friend. Singleton was armed with a gun in his hand, and it also

appeared that Marcelle was running with a gun, although Bradley could not

definitively see a gun in Marcelle‟s possession.



      A few days after the shooting, Bradley saw Singleton and Marcelle “in a

poolroom on Park Row.” Bradley inquired “what was all that about in the alley,”

to which Singleton allegedly responded, “Sharon set him up to get robbed, and so

that‟s why he killed the bitch.”11 Bradley further testified that, after running into

Singleton in the pool hall, he sought out appellant and went to appellant‟s father‟s

home, asking “his father to tell [appellant‟s] lawyer” to contact him. Bradley,

however, was never contacted regarding what he saw or heard on December 1,


      10
         Bradley considered appellant a friend because they grew up in the same
neighborhood.
      11
           Bradley testified that Singleton is now deceased.
                                        6

1997. In 2011, Bradley and appellant were both incarcerated at a penitentiary in

Coleman, Florida where Bradley told appellant what he had witnessed. Bradley

subsequently provided appellant with an affidavit attesting to what he saw in the

alley on December 1, 1997. Bradley‟s testimony was consistent with appellant‟s.



      The trial court did not credit appellant‟s and Bradley‟s testimonies and

ultimately found it was “unable to conclude either that there is clear and

convincing evidence of [appellant‟s] innocence or that it is more likely than not

that he is actually innocent.” In the absence of credible evidence, the trial court

denied appellant‟s IPA motion. This timely appeal followed.



                                        II.



      To obtain relief under the IPA, “appellant must prove by clear and

convincing evidence that [he] is actually innocent of the crime.” 12 In considering

the motion for a new trial based on actual innocence, “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; [and] (C) Why the new


      12
         Meade v. United States, 48 A.3d 761, 766 (D.C. 2012) (quoting D.C.
Code § 22-4135 (g)(3)) (brackets in original) (internal quotation marks omitted).
                                          7

evidence is or is not cumulative or impeaching.”13 Also, the statute provides in

subsection (D) that “[i]f the conviction resulted from a trial, and if the movant

asserted a theory of defense inconsistent with the current claim of innocence,” the

court must consider “the specific reason the movant asserted an inconsistent theory

at trial.”14 “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.”15



      We review the denial of a motion to vacate under the IPA for abuse of

discretion,16 giving “great deference to the trial court‟s role as the trier of fact on

the ultimate issue of „actual innocence‟ under the IPA.”17 “[T]hus[,] we apply the

clearly erroneous standard of review to the trial judge‟s rejection of alleged newly


      13
        Caston v. United States, 146 A.3d 1082, 1089-90 (D.C. 2016) (quoting
D.C. Code § 22-4135 (g)(1)(A)-(C)) (internal quotation marks omitted).
      14
          D.C. Code § 22-4135 (g)(1)(D); see also § 22-4135 (g)(1)(E) (“If the
conviction resulted from a guilty plea, the specific reason the movant pleaded
guilty despite being actually innocent of the crime.”).
      15
         Caston, 146 A.3d at 1090 (quoting D.C. Code § 22-4135 (g)(2)) (internal
quotation marks omitted).
      16
            Veney v. United States, 936 A.2d 811, 822 (D.C. 2007).
      17
            Richardson v. United States, 8 A.3d 1245, 1249 (D.C. 2010) (citation
omitted).
                                          8

discovered evidence offered to prove „actual innocence.‟”18 As such, “the scope of

our review is narrow[ ] on the question . . . [of] whether that [new] evidence

establishes appellant‟s „actual innocence.‟”19     However, “[w]hether the court

applied the correct legal standard [in ruling on an IPA motion] is a question of law

that we consider de novo.”20



                                         III.



      Relying on this court‟s decision in Caston v. United States,21 appellant first

suggests that the trial court “failed to analyze the new evidence according to the

statutorily mandated factors” because it “ended its inquiry after finding Bradley

and [appellant] not credible.” Appellant‟s reliance on Caston is misplaced. In

Caston, we found error because the trial court‟s consideration of the new evidence,

i.e., its credibility assessment of testimony from a new, alleged eyewitness,




      18
           Caston, 146 A.3d at 1090 (citation omitted).
      19
           Id. (citation omitted).
      20
           Mitchell v. United States, 80 A.3d 962, 971 (D.C. 2013).
      21
           146 A.3d 1082 (D.C. 2016).
                                         9

“depended upon the judge‟s assessment of [appellant‟s] credibility.”22 In other

words, the trial court found the appellant‟s testimony to be so incredible that it

tainted even the credibility of the new witness supporting the appellant‟s

innocence. Here, to the contrary, appellant does not assert that the trial court‟s

credibility assessment of Bradley was tainted by its credibility evaluation of

appellant, and we perceive no such improper assessment in our review of the

record. Rather, unlike the trial court in Caston, the IPA court here made wholly

independent credibility assessments of both appellant‟s and Bradley‟s testimonies

— assessments fully within its purview of permissible considerations in evaluating

whether the new evidence demonstrated actual innocence.23



                                        IV.



      Without regard to Caston, appellant faults the trial court for failing to

address, methodically, the statutorily mandated factors for resolution of an IPA

claim.24 As to each, appellant stresses that: (A) the new evidence (Bradley‟s


      22
         Id. at 1100 (quoting Bouknight v. United States, 867 A.2d 245, 257-58
(D.C. 2005)).
      23
           See D.C. Code § 22-4135 (g)(1)(B).
      24
           See text accompanying supra notes 13 and 14.
                                          10

testimony) revealed that appellant could not have been in the apartment at the time

of the shooting because he was in the back alley of the building at that time

conducting a drug transaction; (B) Bradley‟s testimony demonstrated that appellant

could not have been one of the shooters; (C) Bradley‟s testimony was not

cumulative or impeaching; and (D) this new testimonial evidence was consistent

with appellant‟s defense at his 1999 trial.




      Contrary to appellant‟s contention, we are not convinced that the trial court‟s

inquiry needs to proceed any further once the court considers the new evidence and

finds all of it, in all material respects, incredible.25 In any event, we can perceive

no prejudice where, as here, there is no new evidence (claimed to demonstrate

actual innocence) which has not been substantially discredited. In discrediting

Bradley‟s and appellant‟s testimonies, the court sufficiently addressed factors (A)

and (B) and, as a result, mooted factors (C) and (D) as irrelevant.



      Appellant‟s IPA claim, therefore, turns on whether the trial court‟s ultimate

      25
         See Bell v. United States, 871 A.2d 1199, 1202 (D.C. 2005) (“In other
words, if the judge reasonably finds the recantation to be not credible, that
determination properly ends the inquiry into whether the movant has met his
burden of showing that he was in fact innocent.”) (internal citation and quotation
marks omitted).
                                          11

finding — that Bradley‟s testimony was not credible — is sustainable. Under the

IPA,

             [i]t cannot be gainsaid that the ultimate responsibility to
             determine [a witness‟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.[26]


“This accords with the usual rule in an appeal from a bench trial that [a]n appellate

court will not redetermine the credibility of witnesses where, as here, the trial court

had the opportunity to observe their demeanor and form a conclusion.”27 We

consider in turn each of the trial court‟s findings that contributed to its ultimate

credibility determination.



       First, the court questioned Bradley‟s purported vantage point during the


       26
         Caston, 146 A.3d at 1099 (quoting Hill v. United States, 664 A.2d 347,
353 n.10 (D.C. 1995)) (internal quotation marks omitted).
       27
          Turner v. United States, 116 A.3d 894, 927 n.94 (D.C. 2015), aff’d, 137
S. Ct. 1885 (2017) (citations and internal quotation marks omitted). Accord David
v. United States, 957 A.2d 4, 8 (D.C. 2008) (“This court will not substitute its
judgment for that of the fact-finder when it comes to assessing the credibility of a
witness . . . based on factors that can only be ascertained after observing the
witness testify.”) (alterations in original) (citation and internal quotation marks
omitted).
                                         12

shooting based on his testimony that the gunshots came from his right.             In

comparing this testimony to the undisputed evidence at trial that Jackson was shot

in front of 1527 Park Road, the trial court noted that if Bradley had been in the area

of the alley as he attested, “the gunshots would have come from his left and not his

right.”



      Second, the court discredited Bradley‟s account of Singleton‟s and

Marcelle‟s alleged path after the shooting. The trial court found that it “strains

credulity to believe that the shooters shot [Jackson] in front of 1527 Park Road,

then fled down Park Road to the left in front of the witnesses and exited into the

rear alley behind Park Road[,] only to then flee out of the alley towards 16th and

Monroe Streets.”



      Third, the trial court did not find Bradley‟s exoneration of appellant credible,

given the trial testimony of appellant‟s half-brother, Raymond Harris, that

appellant had told him that appellant and others would have to “bust off” Jackson

for snitching, which Harris interpreted to mean shoot her.28


      28
         During the IPA proceeding, appellant never asserted that the trial court
erred in accepting Harris‟s interpretation of the phrase “bust off,” nor did his
counsel ever contest the trial court‟s consideration of the Harris testimony. Indeed,
during a discussion with the trial court about Harris‟s testimony, appellant‟s
                                                             (continued . . .)
                                          13



      Finally, appellant‟s father, Mack Williams, had testified at trial about

hearing the sound of footsteps above him in apartment 102, then gunshots, then his

son‟s voice saying, “Come on, come on, let‟s get out of here.” As the trial judge

who had heard that testimony (which the jury credited), Judge Greene was

unpersuaded by Bradley‟s IPA testimony that appellant had been outside the

apartment, pursuing a drug deal, at the time of the shooting.29



      Consistent with the trial court‟s findings, we agree that none of the

contradictions or inconsistencies between Bradley‟s testimony and the evidence at

trial “are minor”; nor do they “pertain to inconsequential matters” that may be



_________________________
(. . . continued)
counsel advised the court: “I think I would lose all credibility in this courtroom if I
didn‟t acknowledge that it was important evidence.” Reviewing for plain error, we
find none here.
      29
          Appellant alleges that the trial court failed to weigh the “shortcomings” of
the government‟s case, particularly Mack Williams‟s testimony, in light of
Bradley‟s evidence. As the judge at both appellant‟s trial and his post-conviction
proceeding, Judge Greene was well aware of any weakness in Mack Williams‟s
testimony; cf. Caston, 146 A.3d at 1099 (noting that post-conviction proceeding
trial judge did not preside over appellant‟s original trial). Moreover, in making his
findings at the conclusion of the IPA hearing, Judge Greene stated, “I have also
reviewed my trial notes in this case,” and read from those notes during discussions
with both parties.
                                           14

“explainable.”30 Thus, we cannot say that the trial court, after observing and

hearing Bradley testify, clearly erred in disbelieving him. To the contrary, the trial

court‟s credibility determination is well supported by the record.



      Specifically, in considering Bradley‟s testimony, the trial court identified

more than a few reasons to question his story, in addition to the reasons outlined

above: (1) the fact that Bradley and appellant had been fellow inmates for a

number of years and had a long-lasting friendship, giving Bradley a “strong reason

to be biased . . . in favor of [appellant]”; (2) that despite their being friends for over

twenty years, Bradley could not locate appellant until they were incarcerated in the

same prison because he knew appellant only by his nickname, even though Bradley

knew appellant‟s family; (3) that in addition to Bradley‟s prior convictions, he

admitted his use of PCP within days of the shooting; (4) that Bradley‟s statement

he had not visited the alley prior to testifying at the hearing was untruthful; and,

finally, (5) that Bradley‟s admission he had been drinking alcohol at the time of the

      30
            Caston, 146 A.3d at 1096; cf. id. at 1097-98 (highlighting the
“unimportant facts” the trial court improperly relied upon in making its credibility
determination, including hearing testimony that the shooting occurred at night
while an affidavit by the witness attested that the shooting occurred between 10
a.m. and 12 p.m. without accounting for the “common mistake of transposing a.m.
for p.m.”) (footnote and internal quotation marks omitted); Fatumabahirtu v.
United States, 148 A.3d 260, 267 n.10 (D.C. 2016) (seeking clarity from the trial
court as to whether it considered the witnesses‟ lack of English fluency in
identifying discrepancies between witness testimony and sworn affidavits).
                                          15

shooting suggested questions about “his recollection of the events he purportedly

saw.”



        In light of the trial court‟s conscientious and comprehensive analysis, we are

well satisfied that there was no abuse of trial court discretion.



                                          V.



        For the foregoing reasons, the judgment of the Superior Court is



                                                Affirmed.
