2009 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
 Motta was sentenced to 15 years on the robbery count, five 1

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.

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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. The convictions were affirmed by a panel of the 1

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
 For reasons undisclosed by the record, the Motta brothers 2

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.

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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
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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
 The Appellate Division added, again without any 3

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.” 

 We have assumed, for purposes of our discussion, that 4

Motta claimed at trial that Dowling would impeach Horsford with

respect to the timeline. As noted above, that he did so is anything

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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. Moreover, as to the color of the car, 4
but clear. 

 Whether the error was of constitutional dimension, or 5

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). 

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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, the error was harmless. In light of the “overwhelming 5

evidence against the defendant,” Gov’t of the V.I. v. Davis, 561
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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
 The majority also properly concludes that the Appellate 6

Division failed to provide any justification for its finding that the

proffered testimony was “likely” to confuse the issues.

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court evidently recognized), Dowling’s testimony would have

actually provided relevant and non-superfluous impeachment

evidence given Horsford’s own adamant denials on crossexamination. 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
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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.