United States v. Rowley ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4137
DONTE MIGUEL ROWLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-94-358)
Submitted: June 10, 1998
Decided: July 24, 1998
Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Anthony Bornstein, WASHINGTON COLLEGE OF LAW, Washing-
ton, D.C., for Appellant. Lynne A. Battaglia, United States Attorney,
Robert R. Harding, Assistant United States Attorney, Illene J. Nathan,
Special Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A jury convicted Donte Miguel Rowley of killing in furtherance of
a drug conspiracy in violation of 21 U.S.C.A. § 848(e) (West Supp.
1998) and he pled guilty to conspiracy to distribute and possess with
intent to distribute cocaine in violation of 21 U.S.C. § 846 (1994).
The court sentenced Rowley to life imprisonment and three hundred
months, respectively. Rowley appeals his conviction and sentence
alleging that the trial court's refusal to grant a mistrial and replace
Rowley's attorney when he notified the court during the trial of his
upcoming suspension from the Maryland Bar violated Rowley's Sixth
Amendment right to counsel. Rowley further contends that the trial
court's admission of certain propensity evidence violated Rowley's
due process rights to a fair trial. Finding no reversible error, we
affirm.
The evidence presented at trial disclosed that Donte Miguel Row-
ley was a leader in a crack distribution organization. Andre Robinson,
the victim, worked within the organization. Upon receiving a call at
approximately 2:00 a.m. on May 29, 1994, police went to Robinson's
apartment and found Robinson dead with two gunshot wounds to the
back of his head. The mattress in the bedroom had been ransacked.
Police estimated the death to have occurred no more than one hour
prior to their arrival.
Testimony was introduced that in 1993, a dispute developed
between Rowley and Robinson over drug money. In a post-arrest
statement Rowley admitted that he kept large amounts of cash in a
"Charlie Rudo" bag in Robinson's apartment, which Rowley claimed
was missing the day after the murder. A witness testified that he saw
both Rowley and Robinson on the night of the murder at approxi-
mately 11:00 p.m. in front of Robinson's apartment. Some time after
that he heard three gunshots and saw Rowley in front of the apart-
2
ment. Silvester Taylor, a neighbor of Robinson, testified that at
approximately 2:00 a.m. that night, as he was returning home, he
heard gunshots from Robinson's apartment. As he peered out of his
curtain window, he saw two males walk from Robinson's apartment
and towards the parking lot. He testified that he believed one of the
males was Rowley, whom he had seen at Robinson's apartment sev-
eral times in the past.
Taylor's seventeen-year-old stepdaughter, Melody McLeod, also
testified that she had seen Rowley at Robinson's apartment on several
occasions. The week prior to the murder she saw money in both the
bedroom closet and under the mattress of Robinson's apartment. On
the afternoon of May 28, 1994, McLeod observed Robinson, after
talking with his mother on the phone, take a Charlie Rudo tennis shoe
bag with a drawstring, go into the bedroom, come out with the bag
packed with something, and leave the apartment. That night, just
before 2:00 a.m., McLeod observed through her open window, Row-
ley knock on Robinson's door and say, "Come open the door." After
Rowley identified himself, Robinson let him into the apartment. Mc-
Leod then heard the volume of the music go up, loud voices, and gun-
shots. Before noon on the same day, several hours after the murder,
Rowley came to the apartment complex and stated to both Taylor and
McLeod when he saw them, something to the effect of"You know
it wasn't me, right?"
During the trial, Rowley's appointed attorney, Allen Drew, notified
the court that he would be suspended from the bar for a year. The sus-
pension would go into effect in thirty days, after the completion of
Rowley's trial. The suspension was related to the handling of an
escrow account in a bankruptcy case several years earlier. Upon the
court's inquiry, Rowley indicated that he was satisfied with Drew's
representation. Drew further indicated that the suspension was not
unexpected and that it would not compromise his ability to represent
Rowley as he was prepared for that possibility. The court then gave
Rowley twenty-four hours to confer with his family. The following
day Rowley again talked to Drew and his family. The next morning,
Rowley indicated to the court that he had "a great deal of concern"
that Drew's ability to represent him adequately might be impaired. In
light of Rowley's concern, Drew, finding no other alternative,
requested a mistrial. The court denied the motion for a mistrial, find-
3
ing that Drew could continue to serve as counsel under the circum-
stances, given that his representation thus far had been effective,
Drew's assurances that he would continue to be, and Rowley's own
acknowledgment the day before of Drew's adequate representation.
The jury ultimately convicted Rowley of Robinson's murder.
Rowley first contends that the court's denial of the motion for
replacement of counsel and mistrial violated his Sixth Amendment
right to the "the assistance of an attorney unhindered by a conflict of
interests." The Sixth Amendment provides a defendant a fair opportu-
nity to secure counsel of his own choice. See Sampley v. Attorney
Gen. of N.C., 786 F.2d 610, 612 (4th Cir. 1986). This is not an unlim-
ited right, however, and must not obstruct orderly judicial procedure.
See United States v. Gallop, 838 F.2d 105, 107-08 (4th Cir. 1988). An
indigent defendant has no right to have a particular lawyer represent
him and can demand a different appointed lawyer only with good
cause. See id. at 108. We review a claim that the district court erred
in denying a motion to replace counsel and a motion for mistrial for
abuse of discretion. See United States v. Kennedy, 32 F.3d 876, 885
(4th Cir. 1994); United States v. Hanley, 974 F.2d 14, 16-17 (4th Cir.
1992). In evaluating whether the trial court abused its discretion, we
consider the timeliness of the motion, the adequacy of the court's
inquiry into the defendant's complaint, and whether the attor-
ney/client conflict was so great that it resulted in a total lack of com-
munication preventing an adequate defense. See Hanley, 974 F.2d at
17.
Upon consideration of the relevant factors, we hold that the district
court did not abuse its discretion in refusing to grant Rowley's
motions for replacement of counsel and a mistrial. We first note that
Drew was not under investigation by the same authorities that were
prosecuting Rowley. See Roach v. Martin, 757 F.2d 1463, 1479 (4th
Cir. 1985) (no actual conflict of interest when attorney was under
investigation by State Bar authorities). Drew's suspension was inves-
tigated by the Maryland State Bar and Rowley was prosecuted by fed-
eral authorities. Drew's suspension was related to a previous
bankruptcy case. Second, the trial court conducted an adequate
inquiry into the situation by discerning Rowley's satisfaction with
Drew's representation up to that point and Drew's own views as to
whether he could effectively represent Rowley. Furthermore, there is
4
no evidence in the record of any other disagreement between Rowley
and Drew regarding Drew's representation. Under these circum-
stances, we find no abuse of discretion in the court's denial of Row-
ley's motions for replacement of counsel and mistrial.
Rowley also contends that the court's admission of substantial pro-
pensity evidence and other highly irrelevant and prejudicial evidence
violated his due process rights to a fair trial. As a threshold matter,
the trial court's evidentiary rulings concerning the admission of evi-
dence pursuant to Fed. R. Evid. 609(a) and Fed. R. Evid. 404(b) or
evidence of prior bad acts under Fed. R. Evid. 403 are given great
deference and will only be disturbed if there was an abuse of discre-
tion. See United States v. Powers, 59 F.3d 1460, 1464-65 (4th Cir.
1995), cert. denied, 64 U.S.L.W. 3485 (U.S. Jan. 16, 1996) (No.
95-6391); United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994);
United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). Evi-
dence of prior bad acts is admissible if it is relevant to an issue other
than character, is necessary to show an essential part of the crime or
its context, and is reliable. Substantial prejudice must be shown to
warrant exclusion. Powers, 59 F.3d at 1464 (citations omitted). Under
Fed. R. Evid. 404(b), evidence of other crimes, wrongs, or acts, is
admissible for proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Such evidence
"is not admissible to prove the character of a person in order to show
action in conformity therewith." Fed. R. Evid. 404(b).
The admission of evidence is reviewed for plain error where coun-
sel fails to adequately preserve an objection on the record. See United
States v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993). In reviewing for
plain error, this court should identify the plain error, consider whether
it affected substantial rights and consider whether the fairness, integ-
rity, or public reputation of judicial proceedings was jeopardized. See
United States v. Olano, 507 U.S. 725, 731 (1993).
Rowley first contends that the court improperly admitted testimony
of prior bad acts, specifically, alleged threats he made concerning a
rival drug dealer referred to as "Man," threats made to an undercover
agent, and to a co-conspirator about killing his mother. He maintains
that the probative value of this evidence was clearly outweighed by
its prejudicial impact. Kevin Wands, a co-conspirator who testified
5
extensively as to Rowley's drug dealings, testified that Rowley told
him to kill Man on the spot whenever he saw him. 1 Wands further tes-
tified, without objection, that Rowley threatened to kill unknown indi-
viduals who stole his truck. Undercover Agent Darren Sanders also
testified that Rowley remarked upon how he resembled an individual
who stuck up one of his runners for some drugs and he would kill
them if he ever found them,2 and that Rowley displayed his semi-
automatic weapon to intimidate him. Wand's testimony that another
co-conspirator, Brandon Holloway, stated that on one occasion he did
not take all of the crack because he was afraid Rowley would kill his
mother was also admitted.3
We have held that where testimony is admitted as to acts intrinsic
to the crime charged, and is not admitted solely to demonstrate bad
character, it is admissible. See United States v. Chin, 83 F.3d 83, 88
(4th Cir. 1996). In Chin, we held that Rule 404(b) does not apply to
testimony of bad acts that are an integral part of the defendant's crim-
inal enterprise. Similar to that case, the testimony in question here
relating to threats made by Rowley demonstrated that the threat of
killing was necessary and inextricably intertwined to the drug busi-
ness, and thereby intrinsic to the crime charged. See id.Rowley also challenges the admission into evidence of the details
underlying four of his prior convictions, two for distributing crack
cocaine and two for assault. We first note that evidence of Rowley's
prior convictions, admitted under cross-examination of Rowley, was
introduced without objection. Furthermore, the circumstances sur-
rounding those convictions were brought out by Rowley himself in an
effort to show that the two drug-related convictions arose out of the
same investigation and that the assault convictions arose out of the
same incident. We further find that admission into evidence of Row-
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1 Because the joint appendix omits this page of the transcripts, it is
unclear the nature of the objection, if any.
2 Although defense counsel objected to the admission of this testimony,
the basis of the objection is not clear. Furthermore, evidence of these
statements had already been previously entered.
3 While both parties admit in their briefs that the court sustained
defense counsel's objection and struck this testimony, that portion of the
transcript is omitted from the joint appendix.
6
ley's drug convictions as it related to co-conspirator Holloway's and
Rowley's drug dealings with a common undercover agent, was rele-
vant because Rowley opened the door to such questioning when he
denied any such involvement with Holloway on direct examination.
Under these circumstances, we find that the trial court did not err in
admitting testimony concerning Rowley's prior convictions. More-
over, even assuming plain error, we do not find that it affected Row-
ley's substantial rights. See United States v. Rhodes, 32 F.3d 867, 871
(4th Cir. 1994).
Rowley also contends that the court's admission into evidence of
alleged threats he made while in jail regarding Kevin Wands if he
cooperated with the Government, and to a jail cellmate Rowley sus-
pected to be a snitch, was prohibited by Fed. R. Evid. 404(b). The
court allowed Timothy McCray to testify that while incarcerated
Rowley threatened Wands if he chose to cooperate. The court, how-
ever, did not permit McCray to mention "death." The prosecution also
cross-examined Rowley on the alleged threats.4 Evidence of witness
intimidation is admissible to prove consciousness of guilt and crimi-
nal intent under Rule 404(b), if the evidence (1) is related to the
offense charged and (2) is reliable. See United States v. Hayden, 85
F.3d 153, 159 (4th Cir. 1996). Because Wands testified extensively
on the nature of the drug conspiracy for which Rowley was also
charged and there is no allegation of unreliability, we find no error in
the admission of this testimony. Similarly, the prosecution's cross-
examination of Rowley concerning threats he made against a jail cell-
mate he considered to be a snitch did not constitute error because that
testimony too related to Rowley's consciousness of guilt.
Rowley next alleges that the court improperly allowed testimony
of alleged threats Rowley made to Robinson's family. On direct
examination, Rowley testified that he had had only one argument with
Andre Robinson, months before the murder, and expressly denied
ever threatening him or his family. As rebuttal evidence, the prosecu-
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4 Rowley also claims that it was error for the prosecutor to mention
"death" concerning Rowley's threats against Wands during cross-
examination of Rowley. Because there was no objection and the court's
instruction to not mention "death" did not explicitly extend beyond Mc-
Cray's testimony, we find no error.
7
tion introduced the testimony of Robinson's mother, Shirley
Robinson-Braithwaite, who testified that four or five months prior to
the murder, Andre played back a message off of his beeper of Rowley
threatening to kill Andre's mother and brother. She testified that some
time thereafter, Rowley apologized to her. On surrebuttal, Rowley
gave a different version of the message left on Robinson's beeper.
The admission of rebuttal evidence is well within the sound discre-
tion of the trial court and is not reviewable on appeal absent an abuse
of that discretion. See Hospital Bldg. Co. v. Trustees of Rex Hosp.,
791 F.2d 288, 294 (4th Cir. 1986); Williams v. United States, 151
F.2d 736 (4th Cir. 1945). Given Rowley's opportunity for surrebuttal,
and the probative value of the testimony, we find no abuse of discre-
tion in the court's admission of this testimony.
Lastly, Rowley claims that the court erred in admitting testimony,
over his objections, of testimony regarding Rowley's propensity for
violence towards his girlfriend, also a co-conspirator, and threats he
made against her. Relating an incident, Kevin Wands first testified
that another individual, "Nate," told him that Rowley "was punching
his girlfriend in the face." The basis for the defense's objection was
on hearsay grounds rather than on the grounds that it was propensity
evidence. We therefore review Rowley's claim for plain error.
Because Wands's testimony established that there was a conspiracy
to distribute drugs among Wands, Rowley, and Nate, and that the
statements were made in the context of that conspiracy, an offense
with which Rowley was charged, we do not find plain error in the
admission of the testimony.
Rowley next argues that his girlfriend's testimony that she was
afraid of Rowley,5 that he threatened her life "nine days before [Rob-
inson] was murdered," and that she ultimately had to be treated at a
hospital where during a phone call she heard someone in the back-
ground saying "they would kill somebody or threaten somebody," was
inadmissible. Rowley further alleges that Jackson's testimony and her
mother's testimony that Rowley made a death threat against Jackson
was improperly admitted over his objections. Jackson served as the
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5 A review of the transcripts does not reveal that an objection was
raised to this aspect of her testimony.
8
defense's key witness and provided Rowley with an alibi. She was
also admittedly a co-conspirator in drug distribution with Rowley.
When she testified that she was not afraid of Rowley, the prosecutor
asked if Rowley had threatened her in the past, to which she replied
she did not recall. No objection was made.
Impeachment is an acceptable purpose for the use of evidence of
prior bad acts. United States v. Stockton, 788 F.2d 210, 219 n.15 (4th
Cir. 1986). Here, Jackson, a key witness for the defense denied that
Rowley threatened her in the past. It was after her denials that the
prosecution refreshed her recollection with police reports to the
contrary.6 A witness's credibility may be impeached by examination
with respect to prior statements inconsistent with trial testimony. See
Fed. R. Evid. 613. Because Jackson's state of mind and her relation-
ship with Rowley bore directly on her credibility, we find that testi-
mony pertaining to threats Rowley made against her was admissible
and reliable.
In light of the foregoing, we affirm Rowley's conviction and sen-
tence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court,
and oral argument would not aid the decisional process.
AFFIRMED
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6 There was an objection noted on the record when the prosecutor
attempted to impeach Jackson with a prior inconsistent statement.
9