                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2009

Gov VI v. David Motta
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2693




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                                        NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 08-2693


        GOVERNMENT OF THE VIRGIN ISLANDS

                              v.

                        DAVID MOTTA,
                                  Appellant


         APPEAL FROM A JUDGMENT OF THE
      DISTRICT COURT OF THE VIRGIN ISLANDS,
                   APPELLATE DIVISION
              (D.C. Crim. No. 04-cr-00174-001)
          Chief Judge: Honorable Curtis V. Gomez
        District Judge: Honorable Stanley S. Brotman
      Superior Court Judge: Honorable Leon A. Kendall


                    Argued: April 23, 2009


 Before: BARRY, HARDIMAN, and COWEN, Circuit Judges

                (Opinion Filed: June 30, 2009)




Eric S. Chancellor, Esq. (Argued)
2111 Company Street,
Christiansted, St. Croix
USVI, 00820-0000

Counsel for Appellant
Tiffany V. Robinson, Esq. (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade, GERS Complex, 2nd Floor
Charlotte Amalie
St. Thomas, VI 00802

Counsel for Appellee




                            OPINION


BARRY, Circuit Judge

       Appellant David Motta was convicted by a jury of robbery,
possession of a deadly weapon during a crime of violence, and
attempted rape.1 The convictions were affirmed by a panel of the
Appellate Division of the District Court of the Virgin Islands.
Motta appeals to this Court, alleging error in the trial court’s
refusal to allow an impeachment witness to testify. We will affirm.

                       Factual Background

       At approximately 10:00 a.m. on the morning of September
12, 2001, Kim Urgent was reading meters as part of her job with
the Virgin Islands Water and Power Authority. After stopping to
read a meter, Urgent felt a gun pressed to the back of her neck.
Turning around, she saw two men, who demanded her jewelry and
money. Frightened, Urgent complied. One man then searched her
car, and found a cell phone. At this point, the men sexually
assaulted Urgent and attempted to rape her, but the attempt was
aborted because her jeans were too tight to remove, and her cell
phone rang. Urgent told the men that the call was likely from her

       1
        Motta was sentenced to 15 years on the robbery count, five
years (consecutive) on the possession of a deadly weapon count,
and ten years (concurrent) on the attempted rape count. Motta’s
sentence is not at issue here.

                                -2-
boss, who, if she did not answer, would come looking for her. At
this point, the men left the scene in a white car, and Urgent
contacted the police.

         Urgent identified Motta and his brother, Alan, as the
perpetrators. She first identified them, albeit with some hesitation
in light of different hairstyles, from a book of a large number of
photographs maintained by the police. She also identified Motta in
person, seeing him twice at a local gas station and once at a street
party. Finally, Urgent made an in-court identification of Motta
during trial.2

        At trial, Motta put on an alibi defense, claiming that he was
scavenging car parts from an abandoned vehicle on the other side
of the island at the time of the robbery and assault. The
government challenged this alibi with the testimony of Celestina
Horsford, who stated that she saw Motta arrive at the abandoned
vehicle shortly before 9:00 a.m., leave shortly thereafter between
9:00 a.m. and 9:30 a.m., and return around 1:30 p.m. This
testimony, if believed by the jury, as clearly it was, wholly
undermined Motta’s alibi as it indicated that he was not where he
claimed to be at the time of the crime. Horsford also testified that
Motta arrived in a white car, the same color as the car Urgent
testified had been driven by the men who robbed and assaulted her.
On cross examination Horsford explicitly denied having told the
brother’s lawyer, Renee Dowling, a different timeline and that the
car was blue, as Motta would later testify that it was.

       To counter Horsford’s testimony, Motta sought to have
Dowling testify to impeach Horsford as to her “description of the
vehicle [and] the individuals driving . . . .” App. at 141, but did not
seek to impeach her, as he now says he did, in terms of the precise



       2
        For reasons undisclosed by the record, the Motta brothers
were tried separately. Alan, too, was convicted, and his
convictions were affirmed by the Appellate Division. See Motta v.
Gov’t of V.I., 2004 WL 2848467 (App. Div. D. V.I. Nov. 30,
2004). It does not appear that Alan thereafter appealed his
convictions to this Court.

                                  -3-
timeline of Motta’s coming and going. The District Court refused
to allow Dowling to testify, and Motta claims this ruling constitutes
reversible error. We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291.

                             Discussion

        Although it is not altogether clear, it appears that it was the
government’s position before the trial court and before the
Appellate Division, and it appears to be the government’s position
before us, that because Motta had already impeached or could
impeach Horsford in ways it does not identify, any further
impeachment of her by what she purportedly told Dowling would
have been inadmissible cumulative evidence. Enough, in other
words, was enough. Indeed, the trial court excluded Dowling’s
testimony as cumulative although it did not use that word, did not
do the requisite Fed.R.Evid. 403 balancing, and as the Appellate
Division noted, “did not explain why” it was cumulative. Id. at 17.
It appears that the trial court believed that because Motta had a
transcript of Horsford’s testimony at the brother’s trial and her
statement to the police, no more was needed, although there is no
indication that the court knew how if at all Horsford could have
been impeached with those materials. What is clear, however, is
that the court was concerned that “another lawyer in preparation for
trial [could] come in here to discuss what . . . discussion she may
or may not have [had with] that particular witness.” Id. at 141.
Indeed, the government warned the court that it would violate the
attorney client privilege for Dowling to testify about her
preparation for trial and her investigation. The court responded
that “we are not getting into that complicated aspect. If that’s what
you are going to do, she will not testify.” Id. at 142. Defense
counsel persisted: “We feel it should have been allowed as
impeachment,” id., but the court moved on.

       The Appellate Division found that because Motta had
“ample opportunity to challenge Horsford’s credibility,” the trial
court did not abuse its discretion in excluding Dowling’s testimony
as cumulative. Id. at 17. However, it similarly failed to describe
in what way or even of what that testimony would have been



                                  -4-
cumulative, and did not even mention time or car color.3

       Cumulative evidence can, of course, be inadmissible.
       Although relevant, evidence may be excluded if its
       probative value is substantially outweighed by the
       danger of unfair prejudice, confusion of the issues,
       or misleading the jury, or by considerations of undue
       delay, waste of time, or needless presentation of
       cumulative evidence.

Fed. R. Evid. 403 (emphasis added). But Horsford had not yet
been impeached in any material way, if at all. Moreover, her
testimony in the brother’s trial and her statement to the police, both
of which we have reviewed, were consistent with each other and
with her testimony at Motta’s trial as to the essential parameters of
the timeline and the color of the car. And, certainly, Dowling’s
testimony would have been relevant impeachment evidence given
that on cross examination, Horsford denied having said what it was
proffered that Dowling would testify she said as to those discrete
matters. We simply cannot see how that testimony would have
been cumulative of anything, and the refusal to allow Dowling to
testify was error.

       The error, however, was harmless, and does not require that
we vacate Motta’s conviction. The government presented
substantial evidence of Motta’s guilt and, more importantly, the
excluded impeachment testimony was insignificant. Critically, any
minor variation in the timeline, which is all there could have been,
would not have contradicted the gravamen of Horsford’s testimony
– to wit, that Motta was not where he claimed to be at the time of
the assault and robbery.4 Moreover, as to the color of the car,


       3
           The Appellate Division added, again without any
explanation of its own and none by the trial court, that Dowling’s
testimony “was likely to confuse the issues.” App. 18. We surely
do not see that as “likely.”
       4
         We have assumed, for purposes of our discussion, that
Motta claimed at trial that Dowling would impeach Horsford with
respect to the timeline. As noted above, that he did so is anything

                                 -5-
Horsford at all times other than when she purportedly spoke to
Dowling, said the car was white – in her prior testimony in the
brother’s case, in her testimony in this case, and in her statement to
the police.

        At the end of the day, Dowling’s proffered testimony is the
sort of commonplace impeachment evidence found at nearly every
trial. While relevant and thus admissible, this sort of impeachment
evidence – which picks at minor inconsistencies found within a
series of a witness’s prior statements – is rarely of much import.
This case is no exception: we simply cannot see how the exclusion
of Dowling’s very limited testimony could have affected the jury’s
verdict.

       And even assuming, with no great confidence, that the
exclusion was a violation of Motta’s Sixth Amendment right to
present witnesses on his behalf, and thus an error of constitutional
dimension,5 the error was harmless. In light of the “overwhelming
evidence against the defendant,” Gov’t of the V.I. v. Davis, 561


but clear.
       5
           Whether the error was of constitutional dimension, or
simply a violation of the Rules of Evidence, is a question we need
not decide given that the error would be harmless under either
standard. Compare Chapman v. California, 386 U.S. 18, 24
(1967); Davis, 561 F.3d at 165 (requiring that constitutional errors
be harmless “beyond a reasonable doubt”) with Kotteakos v. United
States, 328 U.S. 750, 776 (1946) (non-constitutional errors will
only justify reversal if error had a “substantial and injurious effect”
on the verdict). We note, however, that the test for whether a
defendant’s Sixth Amendment rights were violated by a court’s
decision to exclude evidence contains a materiality requirement
that was surely not met here. See, e.g., Gov’t of the V.I v. Mills,
956 F.2d 443, 446 (3d Cir. 1992) (defendant must demonstrate (1)
a deprivation of an opportunity to present evidence, (2) that the
evidence was “material and favorable,” and (3) that the deprivation
was “arbitrary or disproportionate to any legitimate evidentiary or
procedural purpose”); see also United States v. Cruz-Jiminez, 977
F.2d 95, 100 (3d Cir. 1992).

                                  -6-
F.3d 159, 165 (3d Cir. 2009), and the minute import of the
erroneously excluded evidence, we comfortably conclude that the
“the guilty verdict actually rendered in this trial was surely
unattributable to the error,” Sullivan v. Louisiana, 508 U.S. 275,
279 (1993) (emphasis in original).

                            Conclusion

      For reasons set forth above, we will affirm the order of the
Appellate Division which affirmed Motta’s judgment of
conviction.


Government of the Virgin Islands v. David Motta, No. 08-2693
COWEN, Circuit Judge, dissenting .
        Because I disagree with the Court’s determination that the
trial court committed merely harmless error, I respectfully dissent.

        In an effort to impeach the alibi-related testimony of
Horsford, Motta unsuccessfully sought to present the testimony of
his brother’s lawyer, Dowling, regarding certain prior statements
allegedly made to her by this witness. Horsford, who testified that
Motta was in a white car and returned to the abandoned vehicle
around 1:30 p.m., denied on cross-examination that she ever told
Dowling either that the car was blue or that she saw Motta
returning to the abandoned vehicle at an earlier time. Dowling
evidently would have testified that Horsford did in fact tell her that
the car itself was blue and that she witnessed Motta coming back
to the derelict vehicle much earlier than 1:30 p.m. (and even earlier
than the 12:30 p.m. time recorded in Horsford’s police statement).
        The majority correctly rejects the Appellate Division’s
determination that it was appropriate to exclude such testimony as
cumulative. Like the trial court, the Appellate Division failed to
provide a real explanation for this cumulativeness finding,
omitting any express reference to either the timeline or the color of
the car. Contrary to the trial court’s suggestions, Horsford’s prior
testimony in the brother’s trial and her police statement did not
constitute sufficient substitutes for Dowling’s own proffered
testimony, especially with respect to the color issue. As the
majority notes (and neither the Appellate Division nor the trial

                                 -7-
court evidently recognized), Dowling’s testimony would have
actually provided relevant and non-superfluous impeachment
evidence given Horsford’s own adamant denials on cross-
examination. In the apt words of the majority, “[w]e simply
cannot see how that testimony would have been cumulative of
anything, and the refusal to allow Dowling to testify was error.”6
        Nevertheless, I find that this error itself was not harmless.
Initially, the government failed to raise this harmlessness issue in
its own appellate briefing, although the issue was subsequently
addressed at oral argument through this Court’s own questioning.
See, e.g., United States v. McLaughlin, 126 F.3d 130, 135 (3d Cir.
1997) (recognizing that appellate court had discretion to consider
whether constitutional error was harmless where government did
not argue issue but refusing to do so because of complexity of
record and lack of certainty or clarity with respect to harmlessness
finding). In any case, Horsford was an important government
witness, presented to rebut Motta’s own defense that he could not
have been one of the attackers in Estate Mary’s Fancy because he
was actually in Estate Campo Rico when the crimes occurred. The
color of the car, in particular, appeared to constitute an important
and disputed issue at trial. While the victim testified that her
attackers used a white car, the defense claimed that Motta was
driving in a blue car on the day in question. In the absence of the
trial court’s evidentiary error, Dowling would have testified that
Horsford actually told her that she did in fact see a blue car. In
turn, a jury could have reasonably relied on such impeachment
testimony to call into question Horsford’s sworn denial on the
stand that she ever made such a statement as well as her specific
claim, made at both trials and in the police statement, that she saw
a white car. Under the circumstances, I cannot agree with the
majority’s characterization of Dowling’s proffered non-cumulative
testimony as involving merely “minor inconsistencies” and the
“sort of commonplace impeachment evidence found at nearly
every trial.”
        In the end, the majority appropriately points out that the


       6
         The majority also properly concludes that the Appellate
Division failed to provide any justification for its finding that the
proffered testimony was “likely” to confuse the issues.

                                 -8-
government presented substantial evidence of Motta’s guilt in this
case. Nevertheless, an evidentiary error is harmless only if it is
highly probable that the error did not contribute to the jury’s
judgment of conviction. United States v. Sallins, 993 F.2d 344,
348 (3d Cir. 1993). The error in precluding the defense from at
least attempting to impeach an important prosecution witness on a
important disputed issue fails to satisfy this rigorous standard. I
accordingly would reverse the Appellate Division’s ruling
affirming the conviction and remand this matter for a new trial.




                                -9-
