In ruling on a motion for a new trial, “the trial judge who heard the trial evidence, sits as the ‘thirteenth juror’ to determine whether a fair trial requires that the [additional evidence] be made available to the jury.” (some quotation marks omitted)
How later courts described this case
- In ruling on a motion for a new trial, “the trial judge who heard the trial evidence, sits as the ‘thirteenth juror’ to determine whether a fair trial requires that the [additional evidence] be made available to the jury.” (some quotation marks omitted)
- "[W]here, as here, there are claims ... that, if believed, would warrant relief, a final determination can be made only after an evidentiary hearing — as with any other case where a material fact, grounded on credibility, must be established.”
- “Any potential for suggestivity was outweighed by the promptness of the show-up, which took place about one hour and fifteen minutes after the robbery.”
- hour and fifteen minutes
Written by the judges who cited it.
The opinion
FARRELL, Associate Judge,
concurring.
I agree fully with the court’s disposition of Lyons’ appeal. As to Hilton, I concur reluctantly in the remand for a hearing. The court says that at a hearing the trial judge can “evaluate Hilton’s demeanor and credibility,” ante at 489. But credibility as to what? We presently have no idea what Hilton would say on the stand, since he personally has furnished no affidavit or other statement asserting a basis for the claim of intimidation. His counsel suggests that Hilton is afraid to substantiate the claim (“[T]his motion is itself more strongly worded than Mr. Hilton might like.”), so we are left to assume that — just perhaps — at the hearing Hilton will have overcome his fear and be ready to recite the objective basis for the coercion Lyons supposedly worked upon him. That, as I see it, is an insufficient showing to require the judge to convene an evidentiary hearing.
On the other hand, trial counsel’s motion, read very generously, implies that he himself witnessed interactions between the codefendants or was told things by Hilton (which might be admissible as going to the client’s state of mind) that could support a claim of duress or intimidation. 1 That is *490 enough to justify a hearing, though barely. Ultimately, however, unless Hilton’s own words — not his counsel’s — impeached by his failure to utter them at any time earlier, see Geddie v. United States, 663 A.2d 631 , 535 (D.C.1995) (discussing means by which defendant can timely bring intimidation to court’s attention without danger of retaliation), persuade the trial judge that duress rather than an unsuccessful choice of strategy likely dictated his defense, the hearing will be as predictable in outcome as it may be brief.
. I say read "very generously” because counsel’s motion is filled with elusive and conclu-sory language about "the unusual dynamic of *490 this co-defendant trial” in which "Lyons called the shots and he dragged Hilton down with him,” and where — without further specification — "the co-defendant’s influence ... kept Mr. Hilton from the stand.”