Bost v. United States , 178 A.3d 1156 ( 2018 )

 2
Stephen F. Rickard, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, Michael D. Brittin, and T. Anthony Quinn, Assistant
United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, * FISHER, Associate Judge, and
FERREN, Senior Judge.
BLACKBURNE-RIGSBY, Chief Judge: Following an extended months-long
joint jury trial, appellants Robert Bost, Jeffrey Best, Sanquan Carter, Orlando
Carter,1 and Lamar Williams were each convicted of participating in at least one of
two separate, but related conspiracies to commit murder that in total left five dead
and eight injured. Specifically, Best, Sanquan, and Orlando were found guilty of
murdering Jordan Howe and injuring two others on March 22, 2010, in retaliation
for the theft of Sanquan’s bracelet (“first conspiracy”). 2 On March 23, 2010, to
avenge Howe’s murder, Howe’s half-brother, Marquis Hicks, along with three
friends, shot Orlando. In retaliation for Orlando’s shooting, Bost, Orlando, Best,
*
Chief Judge Blackburne-Rigsby was an Associate Judge at the time of
argument. Her status changed to Chief Judge on March 18, 2017.
1
Sanquan Carter and Orlando Carter are brothers. For clarity, this opinion
will refer to Sanquan Carter as “Sanquan” and Orlando Carter as “Orlando.”
2
The government charged Williams with involvement in the first
conspiracy to kill Howe, but the jury acquitted him of those charges. In addition to
Howe’s murder, the shooting wounded juvenile V.K.M. and Tavon Lambert.
3
and Williams conspired to murder Howe’s friends (“second conspiracy”). 3 On
March 30, 2010, Bost, Orlando, and Best murdered Tavon Nelson for his firearm
and then the three co-conspirators, with assistance from Williams, conducted a
drive-by shooting on the 4000 block of South Capitol Street, Washington, D.C.,
where some of Howe’s friends had gathered in Howe’s remembrance. The
shooting left three dead and six wounded.4
In their consolidated appeals, appellants — both jointly and individually —
allege that several errors occurred during the course of their joint jury trial. For the
forthcoming reasons, we affirm the judgments of the Superior Court. In light of
the length of this opinion, we set forth below the following table of contents as an
aid to the reader.
3
By the time of the second conspiracy, the police had already arrested
Sanquan in connection with Howe’s murder.
4
Specifically, Brishell Jones, Devaugn Boyd, and William Jones were
killed, Kevin Attaway was grievously injured, and Jamal Blakeney, Ra’Shauna
Brown, JaBarie Smith, Darrick Lanier, and Tierra Brown were injured.
4
Table of Contents
I. Factual Background ..................................................................................... 5
A. First Conspiracy: Alabama Avenue Shooting ................................ 5
B. Retaliatory Shooting of Orlando ...................................................... 9
C. Second Conspiracy: Murder of Tavon Nelson and South Capitol
Street Shooting.................................................................................... 10
D. Government’s Evidence of the Crimes ......................................... 13
E. Convictions and Sentences ............................................................. 18
II. Pretrial Issues ........................................................................................... 19
A. Change of Venue ........................................................................... 19
B. Joinder and Severance.................................................................... 26
III. Issues Arising During Trial..................................................................... 50
A. Prosecutor’s Statements During Opening and Closing ................. 50
B. Technical Issues with Husher ........................................................ 62
C. Statements Against Penal Interest.................................................. 69
D. Withdrawal From Conspiracy Jury Instruction ............................. 83
E. Other Issues .................................................................................... 87
IV. Juror’s Note............................................................................................. 90
V. Best’s Ineffective Assistance of Counsel Claim ...................................... 98
VI. Conclusion …………………………………………………………….116
5
I. Factual Background
A. First Conspiracy: Alabama Avenue Shooting5
On the night of March 21, 2010, Sanquan was at a party with a group of
acquaintances, including Andre Morgan and Jordan Howe, who were godbrothers,
in the basement apartment of Jam’ya Wilkins, located at 1333 Alabama Avenue,
Southeast, Washington, D.C. At the party, Sanquan showed off his fake diamond
bracelet to numerous individuals, including Howe. After the party, Sanquan
realized that his bracelet had been stolen. He became upset and rampaged through
Wilkins’s apartment looking for the bracelet, which he suspected that one of the
men at the party had stolen. Sanquan, with assistance from Morgan, then went to
find Howe at Howe’s apartment, where Sanquan confronted Howe about the
bracelet. In response, Howe told Sanquan, “[M]an, nobody got that fake bracelet,
not nobody,” and Sanquan responded, “[Y]’all motherfu**ers playing. Y’all need
to come up with the bracelet.” Morgan and Sanquan then attempted to find and
confront the other men at the party, but were unable to locate them. Undeterred,
5
A majority of the facts pertaining to the commission of both conspiracies
came from the testimony of co-conspirator Nathaniel Simms, who admitted
participation in the relevant shootings and served as a witness on behalf of the
government, pursuant to a plea agreement.
6
on his way back to the apartment building on Alabama Avenue, Sanquan called his
older brother Orlando and told him that he had been robbed and to “bring
everything.”
When Sanquan called, Orlando was with his friend, Nathaniel Simms, in a
silver Kia Spectra, which belonged to Simms’s girlfriend, Brittany Young.
Orlando told Sanquan on the phone, “[W]e about to be on our way up there” and
he then told Simms that Sanquan had just been robbed and that they needed to pick
up their other friend, Best, to ride with them to meet Sanquan. Simms and Orlando
first went to the home of Orlando’s godmother, Shiree Little, where Orlando
picked up his AK-47 rifle, and afterwards, they picked up Best from his home.
The three men then went to Williams’s home, where Williams gave them Simms’s
.380 pistol and Williams’s shotgun. Orlando told the group, “[M]otherfu**ers
robbed my little brother[;] they going to see.” Best replied, “[O]h, yeah, I love this
sh**. I love this sh**.” Williams then showed Best how to use the shotgun. In
preparation for the encounter, Orlando switched from his bright red jacket into a
black jacket that was in the Kia’s trunk and Best also switched into another jacket.
Williams got out of the car before the men drove off toward 1333 Alabama
Avenue, Southeast.
7
When Simms, Orlando, and Best arrived at Alabama Avenue, Sanquan
approached the car and Orlando told him to “come on.” Sanquan replied, “You
think I brought [you] all the way over here for nothing?” Sanquan then took the
.380 pistol from Simms. Sanquan, Orlando, and Best approached the apartment
building where the party had occurred earlier and where numerous individuals who
had attended the party were still standing outside. Sanquan brandished the .380
pistol, Orlando brandished the AK-47, and Best held the shotgun, while Simms
remained in the car.
Sanquan held the individuals in front of the apartment at gunpoint while he
patted them down and demanded the return of his bracelet. After one of the
individuals refused to be patted down, Sanquan turned to Orlando and Orlando
asked Sanquan if he should, “Go ham?”, i.e., whether they should start shooting, to
which Sanquan replied, “Go ham.” The three men then started shooting at the
group indiscriminately. Sanquan fired all five rounds that had been in the .380
pistol, Orlando fired all twenty-eight rounds from the AK-47, and Best fired the
shotgun three times. During the shooting, Howe, who was in a car nearby, was hit
by a stray bullet and died, while two others, juvenile V.K.M. and Tavon Lambert,
were injured by the gunfire.
8
After seeing Howe’s body and realizing that Howe was dead, Morgan, who
had supported Sanquan up to that point but who was Howe’s godbrother, left the
scene vowing revenge on the Carter brothers. He immediately went to meet with
other friends and told them what had occurred, and they all formed an agreement to
murder Sanquan and Orlando in retaliation. Jordan Howe’s cousin, Kalisha Howe,
who had been present during the shooting, remained on the scene and identified
Sanquan that night to the police from a photograph. She also identified Orlando
from a nine-person photo array the following day, saying it “could be” him.
Wilkins, the woman who hosted the party in her basement apartment, also
identified Sanquan on the night of the shooting.
After the shooting, Simms drove Sanquan, Orlando, and Best to the
apartment of one of the Carter brothers’ relatives by marriage, Ronald Ray. At the
apartment, the men hid their weapons and boasted about the shooting. Sanquan
explained to the men what had happened before their arrival and complained that
he was given a gun with only five bullets. Best said that he was not sure if he had
successfully fired the shotgun, but thought he may have once. Orlando bragged
that he had shot Howe and shot at a “nosy” woman on the top floor of the
9
apartment building.6 After the discussion, Simms alone left Ray’s apartment. The
next day, while Simms was in the Kia with his girlfriend, Young, he met Orlando
and Best and allowed Orlando to get his red jacket and Best to get his black jacket
from the trunk of the car, all of which Young later testified to witnessing.
B. Retaliatory Shooting of Orlando
On March 23, 2010, police arrested Sanquan for his involvement in Howe’s
murder. Meanwhile, Morgan planned his retaliation for Howe’s murder with
Howe’s half-brother, Marquis Hicks, and two friends. Morgan and the three others
drove to Sixth and Chesapeake Streets, Southeast, a location where Orlando was
known to hang out, and recognized Orlando in his red jacket. Hicks approached
Orlando on foot and shot him, resulting in a graze to Orlando’s head and a bullet in
his shoulder. Best and Bost, who was another friend of Orlando’s, were present
during the shooting. At the hospital, Orlando told Best, Bost, and Simms that
Sanquan had been arrested, and that the guns had to be moved from Ray’s
apartment. Simms and Best moved the shotgun and the AK-47 from Ray’s
apartment to Williams’s apartment.
6
Ray subsequently identified Sanquan, Orlando, Best, and Simms from
separate nine-person photo arrays as the men who had arrived at his house late that
night.
10
C. Second Conspiracy: Murder of Tavon Nelson and South Capitol
Street Shooting
The next day, Simms and Best visited Orlando at his mother’s house, where
Orlando told them that he believed his shooter was one of Howe’s friends, and that
he wanted to attack Howe’s funeral in revenge (which was to take place on March
30). In conjunction with Simms, Best, Bost, and Williams, Orlando decided to
procure more guns and to rent a minivan for the shooting. On March 27, 2010,
Orlando, Simms, Best and Bost obtained a 9mm pistol from Orlando’s father and
Bost independently obtained a .45 pistol. Simms and Best bought and delivered
two boxes of ammunition to Williams. On March 29, Simms, Orlando and Best
tried three times to rent a minivan, but no one had sufficient credit to successfully
rent the minivan. Orlando then asked his godmother to rent the minivan from a
rent-a-car facility and, after two failed attempts, they successfully rented a silver
Chrysler Town & Country minivan at about 5:45 p.m. on March 30; however,
Howe’s funeral had already taken place by that time.
Undeterred, Orlando set into motion a new plan to shoot Howe’s relatives.
First, Orlando, Best, Bost, Simms, and Williams retrieved the firearms and
ammunition. Once the weapons were recovered and the co-conspirators were
driving in the van, however, Williams told the others, “Y’all about to go
11
commence. Y’all can let me out right here,” and he exited the van. Because they
only had three guns (AK-47, 9mm Glock, and .45 pistol) amongst the four of them,
Orlando drove to the Wingate Apartments to rob a man, Tavon Nelson, who he
knew carried a gun. Orlando sent Best and Bost to rob Nelson. Best took the 9mm
and Bost took the .45 and both wore masks rolled-up to the top of their heads. Best
and Bost attempted to rob Nelson and a shootout occurred at which Nelson was
killed. Bost admitted to his cohorts back at the van that he was the one who dealt
the killing blow, stating, “Yeah, [Best] hit him, but I finished him.” When Orlando
asked where the gun was, however, Best replied that it was left behind with
Nelson, which upset Orlando but he decided nonetheless to drive away without
Nelson’s gun. Police responded to the scene within minutes and a witness
informed them that, after the shooting, she saw a man run and enter a silver
Chrysler Town & Country minivan. Police recovered seven 9mm shell casings and
three .45 shell casings from the scene of Nelson’s murder.
Orlando then drove the van immediately to the 4000 block of South Capitol
Street, where many of Howe’s friends were gathered in a front yard, wearing
remembrance shirts from Howe’s funeral. Orlando drove up close to the crowd
and lowered the van’s windows. Orlando told the other men, “When I pull over,
have them guns hanging out the window.” All of the men then pulled down their
12
masks and began firing their weapons. As Orlando drove, Bost fired the .45 pistol
from the front passenger window, Simms fired the AK-47 from the rear passenger
window, and Best fired the 9mm Glock from both the rear passenger window and
the rear driver’s side window. Numerous individuals were shot.
Following the shooting, Metropolitan Police Department (“MPD”) Sergeant
Laswuan Washington and his partner, Sergeant Cowan, pursued the minivan
because it matched the lookout description officers had received from the witness
at the scene of Nelson’s murder. During the pursuit, Sergeant Washington caught
a glimpse of Orlando. As the police pursued the minivan, Simms threw the AK-47
out of one of the windows. Orlando then hit a police car in a nearby alley and all
four men jumped out of the van and started running in different directions. Officer
Christopher Dyke chased Orlando and Best and observed them both remove and
throw their jackets to the ground as they ran. When the two men split up, Officer
Dyke followed Orlando and caught him, while another officer recovered Best’s
jacket. Meanwhile, Simms, who had been running in a different direction, was
chased down by Officer Jeremy Bank and eventually surrendered. Officer Daniel
Egbert saw Bost flee from the van and pursued him, but was unable to catch him.
Best and Bost were both later apprehended by the police in connection with the
murders.
13
At the scene of the South Capitol Street shooting, the police found the dying
and injured victims “piled up on top of each other.” Brishell Jones, Devaughn
Boyd, and William Jones died from their injuries, while six others survived their
injuries, but one of whom suffered a severe brain injury.
D. Government’s Evidence of the Crimes
At the subsequent joint trial of the five co-defendants,7 the government
presented considerable evidence linking all five appellants to one or both of the
mass shootings. The government’s strongest evidence in proving its case,
included:
1. Testimonial Evidence
Testimony from Nathaniel Simms regarding both conspiracies: Simms
testified as a government witness to the events leading up to and during the three
shootings on Alabama Avenue, at the Wingate Apartment complex, and on South
Capitol Street. Simms testified that, around midnight on March 22, 2010, he,
7
While Simms was initially charged with the other co-defendants, he
agreed to act as a government witness pursuant to a plea deal, and his case was
severed from the others.
14
Orlando, and Best gathered firearms and drove to Alabama Avenue after learning
that Sanquan had been robbed. Simms testified that he stayed in the car, while
Orlando, Best and Sanquan approached a group on Alabama Avenue and opened
fire. With regard to the shooting on March 30 on South Capitol Street, Simms
testified that he, Orlando, Bost, and Best had planned to shoot Howe’s associates
in retaliation for the prior shooting of Orlando. He testified that, before the South
Capitol Street shooting, the four of them rode in a minivan to the Wingate
Apartment complex, where Bost and Best unsuccessfully attempted to rob Nelson
of his firearm. Simms further testified that he, Orlando, Bost and Best then rode to
South Capitol Street, where he, Bost, and Best all fired weapons into a crowd of
people wearing remembrance shirts for Jordan Howe.
Best’s confession to Martaraina Salazar: The government presented
testimony from Martaraina Salazar, Simms’s girlfriend, that, at about midnight on
the night of the South Capitol Street shooting, Best came to her home and picked
up a bag that Simms had left there. Salazar testified that Best later returned and, as
they smoked marijuana, he told her details of the shooting. He told her that Simms
shot the AK-47 while Bost shot the .45 pistol, that Orlando drove the van, and that
a girl had been shot in the head. Best also told Salazar that he hoped that Orlando
and Simms would not implicate him. Salazar testified to Best’s confession at trial.
15
Best’s confession to his mother and arrest: On April 22, 2010, police
executed a series of search warrants based in part on the information the officers
received from Simms. One of the searches was conducted at the home of Best’s
mother, Laverne Best. Best called and told his uncle about the search and his uncle
picked him up. Best denied any involvement in the shootings to his uncle, but was
crying and nervous. Best’s uncle urged him to turn himself in, but Best got out of
the car and ran away. Best’s mother Ms. Best, also spoke to Best on the phone and
urged him to turn himself in, but Best refused. On April 26, police located and
arrested Best. The police brought Ms. Best to the police station, where she, Best,
and a detective spoke in an interrogation room. Once the detective left the room,
Best and his mother had a private conversation, which was captured on video. Ms.
Best asked her son, “[Y]ou didn’t hurt no one, huh? . . . Did you? . . . Huh? . . . So
that’s true out there, huh? Huh?” There was a dispute as to whether Best nodded
in response, but the recording of the conversation demonstrated that Best did
appear to slightly lower his head and raise it back up, and then look at his mother
and move his head again. After this non-verbal response, she asked him, “What
for? Cause he shot Orlando?” Best then started crying, lowered his head again,
and asked his mother for a hug, and she responded, “Yea Jeffrey, but I don’t know
why you would do something like that . . . see what Orlando got you into.” At
trial, Ms. Best was shown the video of her conversation with her son, but she
16
testified that she had not seen her son nod his head or admit involvement. She was
impeached with her grand jury testimony, however, during which Ms. Best stated
that she had observed her son nod his head. 8
2. Forensic Evidence
Minivan: Police searched the minivan and recovered seven AK-47-type
casings. Inside the front of the van, police found Orlando’s cell phone, which
contained a text message from a number associated with Simms, stating “Funeral
on Tuesday.” A mask and a hat containing DNA mixtures, including Orlando’s
DNA, were recovered from between the front seats. A cigarette butt containing
Simms’s DNA was found near the rear passenger seat. A swab from the front
passenger side door of the minivan contained a single-source partial profile, from
which Bost could not be excluded. DNA testing, however, did not reveal Best’s
nor Williams’s DNA inside the minivan.
8
The government also presented Harry Graham, Best’s friend, as a rebuttal
witness. Graham testified that he was selling drugs in the area of Sixth and
Brandywine Streets on March 30, 2010, when police swarmed the area. He stated
that as he proceeded to leave the area in his car, he saw Best coming down Sixth
Street, Best was sweating, breathing hard, and not wearing a jacket. Best asked
Graham for a ride to his long-time girlfriend Sarah Proctor’s apartment. When
Graham asked Best about the gunshots, Best said he did not want to talk about it,
and they rode to Proctor’s apartment.
17
Clothing: A DNA sample from the jacket that Officer Dyke recovered
during the chase revealed a mixture of at least three individuals; while the
swabbing revealed no major contributor, the major contributor of the cutting
matched Best’s DNA. A mouth cutting and forehead cutting from the mask
recovered behind the church contained mixtures of at least two people’s DNA, of
which Bost was the major contributor.
Forensic evidence of the shell casings and bullets: Shell casings from the
.380 pistol that Sanquan fired were recovered from the scene of the Alabama
Avenue shooting. The AK-47 thrown during the chase following the South Capitol
Street shooting also matched the casings recovered from both the scene of the
Alabama Avenue shooting and the South Capitol Street shooting. The 9mm and
.45 caliber casings, recovered from the shooting of Tavon Nelson, were fired by
the same weapons that left casings at the South Capitol Street shooting.
3. Record Evidence
Phone Records: An analysis of appellants’ call records showed a web of
completed and attempted communications between all appellants (other than
Sanquan) in the months leading up to the South Capitol Street shooting on March
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30, 2010. However, after the South Capitol Street shooting, Best, Bost, and
Williams continued communicating, but none of the three tried to call Orlando or
Simms. By April 3, 2010, all communications stopped amongst appellants’
phones.
E. Convictions and Sentences
On February 21, 2012, appellants were jointly tried for their involvement in
either one or both of the conspiracies.9 Following a three-month trial, on May 7,
9
Specifically, for involvement in the first conspiracy, Sanquan, Orlando,
Best, and Williams were charged with conspiracy, first-degree murder, assault with
intent to kill while armed (“AWIKWA”), and related charges for the March 22,
2010 shooting at 1333 Alabama Avenue, Southeast.
The indictment further alleged charges relating to the second conspiracy.
Specifically, the indictment stated that after Orlando was shot in retaliation for
Howe’s murder, Orlando, Best, Bost, and Williams conspired from March 23-30,
2010, to shoot attendees of Howe’s funeral. In order to obtain an additional
firearm for the shooting, on March 30, 2010, Orlando, Best, and Bost attempted to
rob Tavon Nelson of his firearm at the Wingate Apartment complex, resulting in
Nelson’s death. They each were charged with aggravated first-degree
premeditated and felony murder for Nelson’s murder. Immediately following
Nelson’s murder, Orlando, Best, Bost, and Williams conducted a drive-by shooting
on the 4000 block of South Capitol Street on March 30, 2010, leading to the deaths
of Brishell Jones, Devaugn Boyd, and William Jones, and injuries to Kevin
Attaway (grievously injured), Jamal Blakeney, Ra’Shauna Brown, JaBarie Smith,
Darrick Lanier, and Tierra Brown. For this second shooting, Orlando, Best, Bost,
and Williams were further charged with three counts of aggravated first-degree
premeditated murder, seven counts of AWIKWA, and related offenses.
(continued . . .)
19
2012, the jury convicted Sanquan, Orlando, Bost, and Best of all counts. Williams
was acquitted of any involvement in the first conspiracy regarding the Alabama
Avenue shooting, but was convicted of lesser-included second-degree murder
charges for his involvement in the second conspiracy related to the South Capitol
Street shooting. On September 11, 2012, Orlando, Bost, and Best were sentenced
to life imprisonment without release, Sanquan was sentenced to 54 years of
imprisonment, and Williams was sentenced to 30 years of imprisonment. These
consolidated appeals followed.
II. Pretrial Issues
A. Change of Venue
Orlando, joined by all appellants, argues that the trial court erred in denying
his motion for a change of venue to a federal court outside of the District of
Columbia, and that, in doing so, the trial court violated his constitutional right to a
fair trial.
(. . . continued)
Orlando was separately charged with assault on a police officer (“APO”)
while armed for ramming a police vehicle at the end of a high-speed chase
immediately following the South Capitol Street shooting.
20
1. Additional Factual Background
On January 19, 2012, Orlando filed a motion seeking a change of venue. He
claimed that because of the “pervasive and irremediable adverse local pretrial
publicity” regarding his charged role in the South Capitol Street murders, it was
impossible for him to receive a fair trial in the District of Columbia, and that the
Sixth Amendment required his case to be transferred to a federal district court
outside of Washington, D.C. Orlando claimed that Super. Ct. Crim. R. 20 (a)
authorizes a change of venue for such a purpose.10
10
Rule 20 (a) states in pertinent part:
When an indictment, information, or complaint is
pending in the Superior Court against a defendant who is
arrested, held, or present in another district, the
prosecution may be transferred to that district if:
(1) the defendant states in writing a wish to plead guilty
or nolo contendere and to waive trial in the District of
Columbia, consents in writing to the court’s disposing of
the case in the transferee district; and
(2) the United States attorneys in both districts approve
the transfer in writing.
(emphasis added).
21
The trial court summarily denied Orlando’s motion to change venue during a
pretrial hearing on January 27. The court later explained its decision on February
9, observing that the Court of Appeals already “has said that there is no ability for
change of venue in the District of Columbia,” and that “[m]ore . . . significantly”
the court was “confident [that it could] pick a fair jury” for the case. The record
reflects that the trial court conducted an extensive jury selection process that
spanned four days, and that during the voir dire, the court questioned the
prospective jurors regarding what, if anything, they had heard about the South
Capitol Street murders, including their exposure to any media coverage of the mass
shooting. Ultimately, of the selected jury, nine jurors did not recall media
coverage of the shooting, while three of the jurors 11 were exposed to only minimal
coverage such that the court and all of the defendants12 were confident that it
would not have an effect on the jurors’ ability to be fair and impartial. Further, the
trial court admonished the jury both during preliminary and final jury instructions
to avoid any outside publicity on the shooting and to decide the case based solely
on the evidence presented at trial.
11
Jurors 624, 064, and 490.
12
None of appellants’ counsel moved to strike these three jurors for cause,
sought further questioning, nor raise any objection to their selection.
22
2. Analysis
The trial court did not err in denying Orlando’s motion for a change of
venue because that relief is not available for cases tried before the Superior Court
of the District of Columbia.13 It is a fundamental Sixth Amendment right that
defendants are entitled to “a fair trial by a panel of impartial, ‘indifferent’ jurors,”
Welch v. United States, 466 A.2d 829, 834 (D.C. 1983) (quoting Irvin v. Dowd,
366 U.S. 717, 722 (1961)), and ordinarily a change of venue is “an appropriate
remedy” “[w]hen a threat to this constitutional protection is posed . . . .” Id.
However, because the Superior Court of the District of Columbia “sits as a single
unitary judicial district,” a change of venue is not available in the District of
Columbia. Id. (citing United States v. Edwards, 430 A.2d 1321, 1345 (D.C. 1981)
(en banc)). Accordingly, we have said that the trial court’s denial of a motion for a
change of venue is “required.” Id. Because it is a “fundamental” rule “in our
jurisdiction that ‘no division of this court will overrule a prior decision of this
court’” Washington v. Guest Servs., Inc., 718 A.2d 1071, 1075 (D.C. 1998)
13
The government contends that Orlando failed to preserve his request for a
change of venue by not objecting to the jurors that were impaneled. The
government also maintains that all of Orlando’s co-appellants, aside from Bost,
failed to explicitly join in Orlando’s written motion, and that they therefore cannot
join in Orlando’s claim on appeal. We need not decide whether plain error review
governs here because Orlando’s argument is meritless under any standard of
review.
23
(quoting M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971)) (footnote omitted),
absent en banc rehearing, the trial court’s denial of Orlando’s motion for a change
of venue was likewise “required,” in this case. Welch, supra, 466 A.2d at 834.
Further, Orlando’s constitutional right to a fair trial was not violated.14
“Appellant’s right to a fair trial by an impartial jury is not defeated . . . merely
14
Orlando argues that our precedent, though binding, is unconstitutional
under the Supreme Court’s decision in Groppi v. Wisconsin, 400 U.S. 505 (1971).
We see no such tension. In Groppi, the defendant was charged with a
misdemeanor and, because of “community prejudice,” sought to change the venue
of his trial from Milwaukee County to a different county in Wisconsin where he
claimed prejudice against him did not exist. Id. at 506. The trial court denied the
motion on the basis that Wisconsin law did not permit a change of venue for
misdemeanor cases. The Supreme Court reversed, holding that “under the
Constitution a defendant must be given an opportunity to show that a change of
venue is required in his case.” Id. at 511. The difference between Groppi and here
is that Wisconsin is a large state with multiple “venues” within the same
“jurisdiction,” whereas, again, in the District of Columbia, the Superior Court of
the District of Columbia “sits as a single unitary judicial district.” Welch, supra,
466 A.2d at 834. “Venue is to be distinguished from ‘jurisdiction,’ which refers to
the authority or power of the court to take action on a particular charge. . . . To say
that the judiciary has such jurisdiction, however, is not to say that every judicial
district within that judiciary is a proper locality [i.e., venue] for the prosecution of
that offense.” LaFave et al., Criminal Procedure, § 16.1 (a) (3d ed. 2014)
(emphasis added). Further, as Groppi emphasized, “[t]here are many ways to try
to assure the kind of impartial jury that the [Constitution] guarantees.” 400 U.S. at
509.
Orlando also claims that Super. Ct. Crim. R. 20 authorizes the Superior
Court to transfer his case to a federal court. His reliance on Rule 20 (a) is
misplaced. Rule 20 (a) only applies to defendants charged in Superior Court, but
arrested outside of the District of Columbia. The Rule specifies that such
(continued . . .)
24
because the requested remedy is unavailable.” Welch, supra, 466 A.2d at 834.
“Instead, other measures must be employed to assure that appellant’s right to a fair
trial is preserved.” Id. at 834-35. “[I]n the absence of extreme circumstances, the
Sixth Amendment inquiry [usually] turns on the adequacy of the voir dire.” Id. at
835 (citations omitted). In Welch, we explained:
[T]he test we apply in scrutinizing the effectiveness of
the voir dire examinations is not whether a juror had been
exposed to the facts and issues of the case nor whether he
or she has formed an opinion as to the guilt or innocence
of the accused but rather whether the nature and strength
of the opinion formed are such as to raise the
presumption of partiality.
Id. at 836. Key considerations in making this determination include the juror’s
own assertion of whether he or she “is able to lay aside his or her impressions” and
the trial court’s assessment of the juror’s demeanor, which is a decision
“particularly within the province of the trial judge.” Id. (citations and internal
quotation marks omitted).
(. . . continued)
defendants may plead guilty or nolo contendere to the charges in federal district
court and waive trial in the District of Columbia, so long as the United States
Attorneys in both districts approve the transfer in writing. Orlando, however, was
arrested and charged in the District of Columbia, and he elected to go to trial.
Accordingly, a change of trial venue was not available to him or his co-appellants.
25
Here, admittedly, the initial pretrial publicility surrounding the South Capitol
Street murders was high, which is not surprising given the number of casualties
involved. However, the record also demonstrates that the trial court carefully
ensured that appellants’ rights to a fair and impartial jury were protected through
the voir dire process. Jury selection took place over the course of four days and
each prospective juror was individually asked by the court about his or her
knowledge of the South Capitol Street murders. The government and defense
counsel for each appellant were given the opportunity to futher question and strike
jurors. The trial court also excused jurors who indicated that they may have been
influenced by media coverage.
In fact, it is noteworthy that, for such a high-profile case, of the twelve jurors
eventually selected, nine had no recollection of relevant media coverage and three
were exposed to only minimal coverage. All three jurors who were exposed to
some pretrial publicity expressly stated that it would not influence their decision.
Because we give weight to a juror’s own assertion of his or her ability to be
impartial and defer to the trial court’s assessment of a juror’s credibility, we hold
that the trial court’s safeguards during “voir dire served to protect the right to a fair
trial by an impartial jury.” Welch, supra, 466 A.2d at 837 (citations omitted). Our
conclusion is bolstered by appellants’ defense counsels’ failure to object to any of
26
the impaneled jurors, including the ones who had been exposed to some pretrial
publicity, and the fact that Orlando on appeal has not presented any evidence that
the jury was actually partial. See United States v. Haldeman, 559 F.2d 31, 60
(D.C. Cir. 1976) (en banc).
B. Joinder and Severance
Sanquan argues that, because he was only charged with participating in the
first conspiracy (the Alabama Avenue shooting), the trial court erred in joining his
case with his co-appellants’ charges stemming from the second conspiracy that led
to the South Capitol Street murders. Bost makes the same argument but in reverse;
he argues that because he was only charged with participating in the second
conspiracy, his case was misjoined with his co-appellants’ charges relating to the
first conspiracy. They each claim their individual case was prejudiced by the
joinder of the two conspiracies. Further, they both alternatively argue that the trial
court abused its discretion by refusing to grant their motions for severance.
27
1. Additional Factual Background
On April 20, 2011, the grand jury returned a superseding indictment that
explained the government’s theory of the case, including the causal relationship
between the first conspiracy and the second conspiracy. The indictment first
alleged that Sanquan, Orlando, Best, Williams, and Simms conspired “to assault
and kill individuals believed to be responsible for taking” Sanquan’s bracelet.
Pursuant to this first conspiracy, the conspirators hunted for the individuals that
Sanquan believed were responsible for the theft. Upon locating these individuals,
Sanquan and his cohorts assembled and searched them for the missing bracelet
and, when Sanquan could not find it, he became “infuriated” and told Orlando and
Best to shoot them. Howe was killed in the ensuing hail of gunfire that also
wounded V.K.M. and Lambert. Later, Howe’s godbrother, Morgan, half-brother,
Hicks, and two other friends shot Orlando in retaliation for Howe’s murder.
The indictment further alleged that Orlando, Best, Williams, Simms, and
Bost next conspired “to assault and kill friends and associates of Jordan Howe . . .
in retaliation for the shooting of Orlando Carter that occurred on or about March
23, 2010 . . . .” According to the indictment, Orlando “vowed to exact violent
revenge and, to that end, recruited co-conspirators” Best, Williams, Simms, and
28
Bost to assist him in killing “as many friends and associates of Jordan Howe as
they possibly could . . . .” The conspirators gathered as many firearms as they
could find and Orlando instructed Best and Bost to rob Tavon Nelson for his
firearm. Best and Bost then shot and murdered Nelson. The conspirators then
drove a rented minivan to the 4000 block of South Capitol Street, where Howe’s
friends and associates were congregated in remembrance of Howe, and fired
multiple weapons, leading to the death of three people and the wounding of six
others.
Based on the government’s theory of the case as articulated in the
indictment, Sanquan and Bost filed pretrial motions to declare misjoinder and,
alternatively, for severance.15 The government filed a consolidated opposition to
Sanquan’s and Bost’s motions, claiming principally that the joinder of the two
conspiracies was proper because the first conspiracy “logically” led to the second
conspiracy, and that the two conspiracies operated “so closely connected in time
and place” that there was substantial overlap of evidence. The trial court denied
15
Williams and Best also filed motions to declare misjoinder or,
alternatively, to grant severance, but their claims are not relevant for purposes of
this appeal. Williams was indicted for involvement in both the first and second
conspiracies and he was acquitted of all charges stemming from the first
conspiracy. Meanwhile Best sought only severance of a charge of unlawful
possession of a handcuff key while at the D.C. Jail, which the trial court granted.
29
Sanquan’s and Bost’s motions to declare misjoinder and grant severance on
January 6, 2012. The court later explained its reasoning during the pretrial hearing
on February 9, stating that joinder is proper under Super. Ct. Crim. R. 8 (b) “when
one offense leads logically to another,” such as “when the subsequent offense is a
sequel to the initial offense.”
Here, the court found the second conspiracy to commit murder was a sequel
to the first conspiracy to commit murder because the “killing of Jordan Howe was
the catalyst for the . . . retaliatory attempt on Orlando Carter’s life” that led
Orlando to conspire with others to embark on the murder of Nelson and the South
Capitol Street murders. The court further noted that Sanquan’s and Bost’s motions
for severance were “meritless” because they “have failed to rebut the strong
presumption in favor of a joint trial after the defendants and offenses were properly
joined.” Because there was a “substantial overlap of evidence with respect to the
two charged conspiracies,” the trial court explained, “severance would result in
significant prejudice to the [g]overnment and the substantial expenditure of
additional resources by the court.” The court cited examples of this overlap,
including: (1) “the relationship among the defendants”; (2) four individuals
(Orlando, Best, Williams, and Simms) are alleged to have participated in both
conspiracies; (3) the same AK-47 assault rifle was alleged to have been used in
30
both conspiracies; and (4) the motive for the second conspiracy “grew out of a
crime committed in retaliation for the first conspiracy.” Lastly, the court
emphasized that it was “confident that the case can be tried in a way that will
enable the jury to make individual determinations about the guilt or innocence of
each defendant.” Accordingly, the court explained that, in its preliminary
instructions to the jury, it would “point[] out who is or isn’t charged in the first
alleged conspiracy and who is or isn’t charged with respect to Tavon Nelson, and
who is or isn’t charged . . . with respect to the second conspiracy.”
Several steps were taken during the course of trial to ensure that the jury was
clear as to the charges pertaining to each individual appellant. As the court
promised, it explained in its preliminary instructions to the jury that Sanquan was
not charged under the second conspiracy and Bost was not charged under the first
conspiracy, and that each defendant must be given “separate consideration.”
During Simms’s testimony, in the middle of trial, the parties also agreed that the
trial court would give the following jury instruction:
Any statement made by a defendant after March 22nd,
2010 is not to be used as evidence against Sanquan
Carter. Sanquan Carter is not charged with any crime
after March 22nd, 2010. Likewise, any statement made
by a defendant before March 23rd, 2010 is not to be used
as evidence against Robert Bost.
31
The court then again instructed the jury during its closing instructions that “[e]ach
[d]efendant is entitled to have the issue of his guilt as to each of the crimes for
which he is on trial determined by his own conduct and from the evidence that
applies to him as if he were being tried alone.” And, following the government’s
rebuttal of Sanquan’s closing argument in which the prosecutor alluded to the fact
that Sanquan’s initial shooting “started a chain of events” that led to the South
Capitol Street murders, the trial court sua sponte gave a strongly worded curative
instruction:
It’s for you to determine what connection, if any, there is
between the events that are alleged to have occurred at
1333 Alabama Avenue and the events alleged to have
occurred at the Wingate and at South Capitol Street. But
to be sure that there’s no confusion from the argument
that’s been made I want to underscore that Sanquan
Carter is not charged with the conspiracy that’s alleged
to have occurred between March 23rd and March 30th.
He’s not charged with any of the crimes alleged to have
been committed at the Wingate or on South Capitol
Street, but even more fundamentally, there’s not a shred
of evidence that he has any responsibility whatsoever for
the events that are alleged to have occurred between
March 23rd and March 30th. So I just want to
underscore that.
(Emphasis added). Lastly, when the jury sent a note during deliberations that it
was confused about how to evaluate evidence against each individual defendant
and about the co-conspirator liability instruction, by the parties’ agreement, the
trial court explained to the jury that the instructions were not inconsistent, and that,
32
while “evidence of the conduct of a co-conspirator could potentially be part of the
evidence that applies to a defendant . . . you are expected to evaluate the issue of
each defendant’s guilt individually . . . .”
2. Legal Principles
“Joinder of two or more defendants and multiple offenses in one indictment
for trial is authorized by Rule 8 (b) . . . .” Davis v. United States, 367 A.2d 1254,
1260 (D.C. 1976). 16 “We employ a ‘strong policy favoring joinder’ because it
‘expedites the administration of justice’ in numerous ways.” Ball v. United States,
26 A.3d 764, 767 (D.C. 2011) (citation omitted). “Moreover, joinder is preferred
in conspiracy cases . . . .” United States v. Eiland, 406 F. Supp. 2d 46, 50 (D.D.C.
2005) (referencing Fed. R. Crim. P. 8 (b)). That said, “[m]isjoinder . . . is an error
of law . . . subject[] . . . to de novo review.” Ray v. United States, 472 A.2d 854,
16
The government claims and appellants do not appear to dispute that “all
offenses and all defendants are properly joined within each of the two charged
conspiracies.” Accordingly, the argument on appeal is simply whether the first
conspiracy charges (and all defendants involved in those charges) should have
been tried separately from the second conspiracy charges (and the defendants
involved in those charges), even though three of the five co-defendants overlap.
33
857 (D.C. 1984). Super. Ct. Crim. R. 8 (b) (“Rule 8 (b)”), 17 at the time the
indictment was returned, stated in full:
Two or more defendants may be charged in the same
indictment or information if they are alleged to have
participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or
offenses. Such defendants may be charged in 1 or more
counts together or separately and all of the defendants
need not be charged in each count.
(Emphasis added).18 Per the plain language of Rule 8 (b), it is not necessary that
all defendants be charged in each count of the indictment for joinder to be proper,
so long as all of the indicted offenses are based on “the same series of acts or
transactions constituting an offense or offenses.” Id. Thus, the key question in this
appeal is whether the first conspiracy (in which Bost did not participate) and
second conspiracy (in which Sanquan did not participate) can be considered a part
17
Rule 8 (b) was amended in 2016 to read as follows:
The indictment or information may charge 2 or more
defendants if they are alleged to have participated in the
same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The
defendants may be charged in one or more counts
together or separately. All defendants need not be
charged in each count.
18
In contrast to Rule 8 (b), under Rule 8 (a), “offenses may be joined if they
are either similar in character or based on the same act or transaction,” so long as
all offenses are alleged to have been committed by one defendant. Ray, supra, 472
A.2d at 857.
34
of the “same series of acts or transactions,” such that joinder of the charges and the
defendants involved in both conspiracies was proper.
“Our case law establishes that separate offenses can constitute a joinable
‘series of acts or transactions’ where ‘one offense logically leads to another.’”
Medley v. United States, 104 A.3d 115, 122 (D.C. 2014) (citations and brackets
omitted). 19 “An offense leads logically to another when one crime is a ‘sequel’ to
the other.” Id. (citations omitted). “Sequel” offenses include attempts to cover-up
underlying crimes, id., flight, Ball, supra, 26 A.3d at 768, or where the subsequent
offense “was directly occasioned by and grew out of” the underlying offense,
Scheve v. United States, 184 F.2d 695, 696 (D.C. Cir. 1950).20 The sequel offense
need not “inevitabl[y] result [from] the commission of the underlying crimes . . . .”
Bush v. United States, 516 A.2d 186, 192 (D.C. 1986) (emphasis added). We have
said, however, that “the similarity of modus operandi in each of the crimes
19
Other types of offenses that meet the definition of “same series of acts or
transactions” include “offenses committed as a means to a specific common end, or
where they are directed toward some shared goal” and “where the offenses are part
of a common scheme or plan, involving the same place, a short period of time, and
a similar modus operandi . . . .” Jackson v. United States, 623 A.2d 571, 579 (D.C.
1993).
20
Opinions issued by the United States Court of Appeals for the District of
Columbia Circuit prior to February 1, 1971, are binding on this court. M.A.P.,
supra, 285 A.2d at 312.
35
charged,” alone, cannot “fulfill[] Rule 8 (b)’s requirement that [all] defendants be
charged with having participated in a series of acts or transactions . . . .” Davis,
supra, 367 A.2d at 1261 (internal quotation marks omitted); see also United States
v. Suggs, 531 F. Supp. 2d 13, 25-26 (D.D.C. 2008) (explaining that the analogous
federal Rule 8 (b) “may not be read to embrace similar or even identical offenses,
unless those offenses are related.”) (citation and internal quotation marks omitted)
(emphasis in original). In short, “[t]he series of acts envisioned by the drafters of
Rule 8 (b) is one in which the individual offenses are connected or interrelated in
such a manner that proof of charges against one defendant would necessarily have
to be introduced in proving the jointly-charged offenses . . . .” Davis, supra, 367
A.2d at 1261 (emphasis added).
What is or is not considered a “sequel” offense can at times be unclear, so to
illustrate this distinction, the decisions in Scheve and Settles v. United States, 522
A.2d 348 (D.C. 1987) are instructive. So, too, is the Seventh Circuit decision in
United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985). In Scheve, three of the
four defendants sought to separate their charges of illegally operating a gambling
establishment from the fourth defendant Joseph Scheve’s individual charges of
assault with intent to kill and assault with a deadly weapon. 184 F.2d at 695-96.
Scheve was also charged as a member of the illegal gambling enterprise. Id. The
36
court concluded that the charges were properly joined because “[t]he assault was
directly occasioned by and grew out of the gambling offense.” Id. at 696.
Specifically, the evidence showed that all four defendants operated the gambling
house and when the wife of Ricker, a “heavy loser,” demanded that the gambling
house return some of their money, Scheve “pushed” her and then pointed a gun at
Ricker and struck him with it. Id. Accordingly, the court concluded that joinder
was proper because “there was an unbroken chain of causation between the
defendants’ gambling business, Ricker’s losses, his wife’s demand for return of
some of the money, Joseph Scheve’s assault on her, Ricker’s apparent attempt to
intervene, and Scheve’s assault on Ricker.” Id. 21
Likewise, in Velasquez, the Seventh Circuit considered, among other issues,
whether charges stemming from one conspiracy to sell cocaine in Chicago were
misjoined with a second conspiracy to retaliate against an informant who was
initially part of the cocaine conspiracy as part of the “same series of acts or
21
Likewise, in Ball, we held that appellant Ball’s assault on a police officer
charge was a “sequel” to appellant Jackson’s reckless driving charge. 26 A.3d at
768. We concluded that the “inception” was the police’s high-speed chase of
appellants’ vehicle and “[o]nce the [vehicle’s] tire had blown, the occupants were
logically forced to flee by foot, and when the officers closed in on them, the next
logical step in evasion was to resist arrest.” Id. In other cases such as Bush and
Medley, we concluded that joinder was proper when the “sequel” offenses were
attempts to obstruct justice or to cover-up the underlying offense. Bush, supra,
516 A.2d at 190; Medley, supra, 104 A.3d at 122.
37
transactions.” 772 F.2d at 1353. The court reviewed case law pertaining to federal
Rule 8 (b) and concluded that including the second conspiracy to retaliate against
the informant, “[a]s a conspiracy and its cover-up are parts of a common plan,”
would pose “no possible problem of misjoinder if the government’s argument had
any factual basis . . . .” Id. at 1354 (citation omitted).22
In contrast, this court concluded in Settles that the two co-defendants’
charges stemming from the first incident of armed rape were misjoined with their
charges relating to the second incident of rape, and accordingly, reversed the
defendants’ convictions. 522 A.2d at 349. In Settles, the government indicted the
co-defendants for committing two brutal rapes, the first on April 7, 1984, and the
second, ten days later on April 17. Id. at 350. Although the two attacks shared
some of the same violent characteristics, the victims were different and there was
no real overlap of proof between the two offenses. Id. at 351, 353. On appeal,
they argued that the April 7 offenses were misjoined with the April 17 offenses.23
22
The problem in Velasquez, however, was there was no evidence actually
linking the retaliation to the cocaine conspiracy. Velasquez, supra, 772 F.2d at
1354.
23
It is important to note that the co-defendants did “not contest the fact that
they were tried together, nor could they”; their challenge was simply that there
should have been two trials, one for each alleged incident. Settles, supra, 522 A.2d
at 352.
38
This court agreed, concluding that the April 7 charges “were not ‘based on the
same act or transaction or series of acts or transactions’ as the April 17 charges.”
Id. at 352. Specifically, the court concluded that the attack on the second victim on
April 17 was “not a necessary continuation of the abduction and rape of [the first
victim] ten days before, and in no way did it logically or necessarily result from the
earlier incident. Rather, the evidence makes clear that the two incidents were
entirely unrelated.” Id. at 353. The court further found instructive that the
government “presented its evidence at trial separately and distinctly, with no actual
overlap of proof between the two offenses,” that the “two incidents were not
closely connected in time or place,” and “there [was not] any real congruence
between the two incidents, but only a few superficial similarities.” Id.; see also
Davis, supra, 367 A.2d at 1263 (concluding that the counts were misjoined
because “there [was] no logical development of or relationship between the
offenses because no crime necessarily led to or caused the subsequent offenses”).24
24
Similar cases to Settles include Davis and Jackson. In Davis, co-
defendants Davis and Warren were charged in a forty-four count indictment
alleging that they had raped a dozen women from 1972 to 1973 under similar
circumstances. 367 A.2d at 1257-58. Some of the charges pertained to both
Warren and Davis, while other charges were specific to Davis and other
unidentified individuals. On appeal, Warren argued that the counts charging
Warren and Davis were misjoined with counts charging Davis for having
committed crimes with other unidentified individuals. This court agreed,
concluding that there was “no specific or unitary goal toward which all of the acts
alleged in the indictment were directed” and “there [was] no logical development
(continued . . .)
39
Even if we were to conclude that joinder of the two conspiracies was proper
under Rule 8 (b), “severance may still be necessary under Super. Ct. Crim. R. 14
(“Rule 14”), which protects parties from ‘manifest prejudice as a result of being
tried jointly.’” Medley, supra, 104 A.3d at 122 (citations omitted).25 However,
since there is a “strong presumption” “when two or more defendants are charged
with jointly committing a criminal offense . . . that they will be tried together,”
Bush, supra, 516 A.2d at 192, a party seeking severance has the heavy burden of
(. . . continued)
of or relationship between the offenses because no crime necessarily led to or
caused the subsequent offenses.” Id. at 1263. In Jackson, the three co-defendants
were each indicted for armed robbery of three different liquor stores that occurred
within a one-week period. 623 A.2d at 575. On appeal, we concluded that the
three liquor store robberies, each involving a different store and date, did not share
a sufficiently “close connection” that met the “series of acts or transactions” test,
although we ultimately held that the misjoinder was harmless error. Id. at 581-82.
25
Super. Ct. Crim. R. 14 at the time the indictment was returned stated in
pertinent part:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial
together, the Court may order an election or separate
trials of counts, grant a severance of defendants or
provide whatever other relief justice requires.
Rule 14 was revised in 2016 to conform with the federal rule: “If the joinder
of offenses or defendants in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the court may order
separate trials of counts, sever the defendants’ trials, or provide any other relief
that justice requires.” Super. Ct. Crim. R. 14 (a).
40
showing the “most compelling prejudice.” Medley, supra, 104 A.3d at 122-23
(citations and internal quotation marks omitted). “Some amount of prejudice will
be permitted in favor of judicial economy and the concomitant expedition of
cases,” id. at 123 (citation omitted), and a “defendant is not entitled to severance
merely because the evidence against a [co-defendant] is more damaging than the
evidence against him.” Bush, supra, 516 A.2d at 192 (citation and internal
quotation marks omitted). Rather, a defendant is entitled to severance only if his
or her “complicity in the overrall criminal venture is de minimis when compared to
the evidence against his [co-defendants].” Id. (citation, internal quotation marks,
and italics omitted).
3. Analysis of Joinder
Sanquan and Bost argue that the trial court wrongly concluded that the
shooting of Howe “logically” led to the South Capitol Street murders because the
two incidents were standalone crimes, and that the majority of the government’s
proffered evidence was unique to each incident. They also argue that the South
Capitol Street murders only occurred as a result of the attempt on Orlando’s life by
Howe’s friends, and that “[a]n uncharged offense committed by individuals other
41
than those named in the indictment cannot serve as the exclusive basis for joining
two otherwise unrelated conspiracies in one indictment.”
Ultimately, the issue boils down to whether the relationship between the two
conspiracies is more akin to the “unbroken chain of causation” of events as seen in
Scheve or more like the “unrelated” incidents that this court addressed in Settles.
This issue is not necessarily an easy one; many of the facts alleged in the
government’s indictment here are similar to the facts in cases where we have
concluded that joinder was improper. For example, in Settles, we emphasized that
the “two incidents were not closely connected in time or place” because they
occurred a week apart from one another. Settles, supra, 522 A.2d at 353. Further,
the two incidents in Settles “involved different victims.” Jackson, supra note 19,
623 A.2d at 580.
Yet, there is one critical difference between the facts of this case and the
facts involved in our previous cases, such as in Settles, Davis, and Jackson, in
which we concluded that there was misjoinder under Rule 8 (b). In each of those
cases, the defendants were alleged to have committed several operationally similar,
42
but ultimately isolated and unrelated crimes. 26 Rule 8 (a) allows for the joinder of
offenses where a single defendant is charged with multiple crimes that are of “the
same or similar character or are based on the same act or transaction . . . .” Rule 8
(b), on the other hand, pertains to the joinder of defendants. The similarity of the
modus operandi for each criminal incident cannot fulfill the requirements of Rule 8
(b), Jackson, supra note 19, 623 A.2d at 580, and the fact that the same group of
individuals may have committed multiple crimes of the “same or similar” nature,
without more, is insufficient for purposes of joining the defendants and offenses
under Rule 8 (b). In other words, in those misjoinder cases there was “no logical
development of or relationship between the offenses because no crime necessarily
led to or caused the subsequent offenses.” Davis, supra, 367 A.2d at 1263.
This case is different. Unlike the indictments in Settles, Davis, or Jackson,
the shooting of Howe and the shootings of Nelson and the individuals on South
Capitol Street cannot be considered isolated or “entirely unrelated.” Settles, supra,
522 A.2d at 353. Rather, the indictment alleges “an unbroken chain of causation,”
Scheve, supra, 184 F.2d at 696, from the theft of Sanquan’s bracelet, to his
26
In Settles, it was two rapes of two different women that occurred a week
apart from one another. 522 A.2d at 353. In Davis, it was twelve rapes that
occurred over the course of a year. 367 A.2d at 1263. In Jackson, it was three
liquor store robberies all on different days. 623 A.2d at 581.
43
retribution that led to the death of Howe, to Howe’s friends immediately seeking
revenge by shooting Orlando, to Orlando’s plan to kill “as many friends and
associates of Jordan Howe as they possibly could,” and lastly to the execution of
his plan. While Howe’s friends attack on Orlando may not have been an
“inevitable result,” it is fair to characterize it as a sequel to the Alabama Avenue
shooting. Bush, supra, 516 A.2d at 192. The chain of events here is also akin to
the second retaliatory conspiracy alleged in Velasquez, which the Seventh Circuit
concluded would have been a permissible basis for joinder. 772 F.2d at 1354.
Further, “[t]here is nothing in the language of the rule itself which requires
that a person participate in more than one phase of a ‘series’ of acts to come within
the rule’s coverage.” Bush, supra, 516 A.2d at 191. The “sequel” conspiracy in
this case took place a week after the underlying offense occurred, rather than mere
minutes such as in Scheve, supra, 184 F.2d 695, or Ball, supra, 26 A.3d 764.
However, while close spatial and temporal connection between the two offenses
may be a consideration, it is not the only or determinative element. See, e.g.,
Medley, supra, 104 A.3d at 120 (joinder is proper where the two assaults involving
the same victim transpired “a year apart from each other”).27 Further, there was a
27
Contrary to Sanquan’s and Bost’s argument, joinder of “sequel” offenses
is not limited to cover-ups or flight. But see Medley, supra, 104 A.3d at 122
(continued . . .)
44
close connection between the victims of the two conspiracies — the intended
targets of the South Capitol Street murders were the relatives and friends of Howe,
who was the victim of the first conspiracy. In addition, the co-conspirators
murdered Nelson for the specific purpose of stealing his weapon in order to carry
out the drive-by shooting on South Capitol Street.
Both Sanquan and Bost attempt to distinguish this case by arguing that there
existed an intervening event — the attempt on Orlando’s life by Howe’s friends —
that broke any chain of causation between the two conspiracies. Scheve defeats
this argument. In that case, like here, there existed an intervening event between
the charge of operating an illegal gambling house and the subsequent assault —
Ricker’s wife’s attempt to demand her husband’s money back. 184 F.2d at 696.
We have further stated that the subsequent offenses need not “inevitabl[y] result
(. . . continued)
(“‘Sequel’ offenses include, inter alia, attempts to obstruct justice, which make
appropriate the joint trial of an underlying offense and additional offenses
committed by others in an attempt to hide the underlying offense.”). Scheve is a
perfect example of a case where the “sequel” crime did not constitute an attempt to
cover-up or flee from the initial underlying offense. Another such example is
Perez v. United States, 968 A.2d 39, 52-53 (D.C. 2009), where the government
alleged that the defendants attacked a homeless man and then subsequently, when
individuals passing by attempted to stop the attack, the defendants attacked the
passersbys and killed one of them. Id. at 53. We concluded that there was no
misjoinder of the assault on the homeless man, the murder, and the attack on the
other passersbys. Id. at 78-79.
 45
[from] the commission of the underlying crimes” for the offenses to be a “sequel to
those crimes.” Bush, supra, 516 A.2d at 192 (emphasis added). 28 Howe’s murder
may not have “inevitably” led his friends to attempt to kill Orlando, thereby
provoking Orlando to organize the South Capitol Street murders, but we conclude
that Howe’s murder did ultimately “lead” to Orlando’s revenge plot, and
accordingly, the latter was a “sequel” to the first crime. Bush, supra, 516 A.2d at
192.
Ultimately, we conclude that joinder of the two conspiracies was not
improper because the second conspiracy can be considered a “sequel” to the first
conspiracy, and therefore part of the same “series of acts or transactions.” Super.
Ct. Crim. R. 8 (b). Having concluded that joinder was not improper, we must next
28
Appellants also argue that “[i]t is implicit in the language of Rule 8 (b)
that while not every defendant needs to have participated in every illegal act, all
defendants must have participated in the series of illegal acts,” and that, because no
appellant was charged in the attempt on Orlando’s life, the two conspiracies were
improperly joined. We disagree with this argument. On this point, we agree with
the government that the indictment need not charge every possible offense to
establish that offenses are sequels for purposes of Rule 8 (b) joinder. The
government need not have charged Howe’s friends for shooting Orlando in order
for the trial court to conclude that, as a factual matter, the shooting of Orlando was
the link between the two conspiracies.
46
decide whether, nonetheless, appellants’ motions for severance should have been
granted.29
29
Alternatively, the government argues that the two conspiracies constituted
a “part of a common scheme or plan” with a “substantial overlap in proof of the
various crimes.” Jackson, supra note 19, 623 A.2d at 579. The government
highlights the overlaps in evidence such as, inter alia, the fact that both
conspiracies involved appellants Orlando, Best, and Williams, and turned-
government-collaborator Simms; both involved use of the same AK-47; both relied
on Williams to store the weaponry; and there was substantial overlap of evidence,
in particular Simms’s testimony. Id. at 581 (“Where offenses are considered to
constitute a series of acts or transactions because they are part of a common
scheme or plan, it is also necessary that there be a substantial overlap in proof the
various crimes such that it would be difficult to separate proof of one from the
other.”). While evidence of overlap is important, we think it is more important to
decide whether the indictment actually “show[ed] . . . a common scheme
connecting the two conspiracies,” United States v. Nicely, 922 F.2d 850, 853 (D.C.
Cir. 1991) (emphasis added), for joinder under the common scheme or plan
criterion. Davis, supra, 367 A.2d at 1262 (common scheme or plan is one of three
categories of cases that permit joinder under Rule 8 (b)). The D.C. Circuit, in
analyzing the analogous federal Rule 8 (b) has held that “[o]verlapping
memberships,” alone, will not authorize joinder under Rule 8 (b) “if the
conspiracies cannot be tied together into one conspiracy, one common plan or
scheme.” Nicely, supra, 922 F.2d at 853 (citation and internal quotation marks
omitted). Here, it is difficult to see how the two conspiracies reasonably constitute
an overarching “common scheme or plan,” such that it could be considered, even if
not charged, as one large conspiracy. The initial conspiracy to retaliate against
individuals who stole Sanquan’s bracelet does not share a similar purpose or plan
with the second conspiracy to retaliate against Howe’s friends and family for the
shooting of Orlando. While we agree with the government that the two
conspiracies “logically” led to one another, and that the charges and defendants
were properly joined, we cannot agree that the two conspiracies constitute a
“common scheme or plan.”
47
4. Analysis of Severance
While the trial court has broad discretion to grant or deny severance under
Rule 14, Bailey v. United States, 10 A.3d 637, 642 (D.C. 2010), “a disparate
quantum of evidence” against each co-defendant “may conceivably require a
severance under some circumstances.” Sousa v. United States, 400 A.2d 1036,
1041 (D.C. 1979) (citations and internal quotation marks omitted). Severance
should be granted “only where the evidence of a defendant’s complicity in the
overall criminal venture is de minimis when compared to the evidence against his
[co-defendants],” Bush, supra, 516 A.2d at 193 (italics omitted), or when failure to
do so would “violate a defendant’s right to due process and a fair trial,” such as
when co-defendants “present conflicting and irreconcilable defenses and there is a
danger that the jury will unjustifiably infer that this conflict alone demonstrates
that both are guilty.” Sweet v. United States, 438 A.2d 447, 451 (D.C. 1981)
(citation omitted).
In this case, Sanquan’s and Bost’s sole argument as to why their respective
motions to sever should have been granted is that their individual cases were
prejudiced by admission of evidence of unrelated conduct and offenses; for
Sanquan, it is evidence of the second conspiracy, including the South Capitol
48
Street murders, for Bost it is evidence of the first conspiracy that led to Howe’s
murder. However, it is well-established that severance is not required “just
because a significant portion of the government’s trial evidence is applicable only
to [his co-defendants].” Rollerson v. United States, 127 A.3d 1220, 1230 (D.C.
2015) (citation omitted). Moreover, both Sanquan and Bost were active
participants in conspiracies to commit first-degree murder, so we cannot say that
either of appellants’ “complicity in the overall criminal venture is de minimis when
compared to the evidence against his [co-defendants].” Bush, supra, 516 A.2d at
193 (italics omitted). Specifically, Sanquan was the mastermind behind the first
conspiracy that led to Howe’s murder — Sanquan gathered the co-conspirators
together for the purpose of finding and killing the person who stole his bracelet.
Bost, likewise, was an active participant in both the South Capitol Street murders
and Nelson’s murder; in fact, the evidence showed that he intentionally shot and
killed Nelson in an attempt to rob Nelson of his weapon.
Lastly, the evidence presented of both conspiracies was not “so complex or
confusing that the jury could not make individual determinations about the guilt or
innocence of each defendant.” Rollerson, supra, 127 A.3d at 1231 (citation and
internal quotation marks omitted). The record further demonstrates that the trial
court made efforts to ensure that the jury was not confused about the charges. For
49
example, it reminded the jury on several occasions that Sanquan was not charged
with participation in the second conspiracy and Bost was not charged with
participation in the first conspiracy. The court also instructed the jury that no
statement made after March 22, the date of the first conspiracy, could be used
against Sanquan, and no statement made before March 23, the date the second
conspiracy began, could be used against Bost. Lastly, the court gave a strongly
worded curative instruction to the jury after the prosecutor’s rebuttal argument, in
which the court stressed to the jury that Sanquan could not be held responsible for
the South Capitol Street and Nelson murders. Given both Sanquan’s and Bost’s
active participation in the first and second conspiracies, respectively, and the trial
court’s instructions intended to limit jury confusion, we hold that the trial court did
not abuse its discretion when it denied Sanquan’s and Bost’s motions to grant
severance.30
30
Lastly, both Sanquan and Bost claim that the trial court should have given
an additional limiting instruction that the jury could not use any evidence relating
to one conspiracy in the evaluation of the other. We see no prejudice and,
therefore, no error from the trial court’s omission to give this additional limiting
instruction, especially considering the fact that appellants failed to request such an
instruction. See Griffin v. United States, 144 A.3d 34, 36 (D.C. 2016) (failure to
object to instruction limits appellate review to plain error). The trial court
explained to the jury during preliminary instructions and again during closing
instructions that Sanquan was not charged for acts committed under the second
conspiracy and Bost vice versa. We are satisfied that these instructions prevented
jury confusion on the charges. “It is accepted that in any trial involving multiple
defendants, some amount of potential prejudice is permissible if outweighed by
(continued . . .)
50
III. Issues Arising During Trial
A. Prosecutor’s Statements During Opening and Closing
Appellant Williams (joined by all other appellants on appeal) argues that the
trial court erred in denying his motions for a mistrial based upon alleged improper
statements made by the prosecution during its opening statement and initial closing
argument.
1. Opening Statement
In its opening statement, the prosecution referred to the inscription on the
Supreme Court building, “Equal Justice Under Law,” and emphasized to the jurors
their role in enforcing the laws. While the prosecution was discussing this theme,
the trial court sua sponte instructed the prosecution, “I [] want you to focus on
what the evidence is going to show; this is not a closing argument” and gave the
same instruction again in response to an objection by the defense. The prosecution
obliged, but at times continued with its theme of asking the jurors to enforce the
(. . . continued)
considerations of economy and expedition in judicial administration.” Payne v.
United States, 516 A.2d 484, 490 (D.C. 1986) (citation omitted).
51
rule of law and emphasized that “vigilante justice” occurs “when individuals take
the law into their own hands.”
During a break in the prosecutor’s opening statement, the trial court
responded to all objections raised by the defense. Williams’s counsel went a step
further by moving for a mistrial, arguing to the court that the prosecution’s “public
policy” theme was improper. The trial court denied Williams’s motion, but
acknowledged the merits of the objections and reminded the prosecutor twice that
the court had to interject and ask him not to make arguments. The trial court
clarified that the references to the inscription on the Supreme Court were improper
and cautioned the prosecutor not to make further references.
During a second break in the opening statement, the trial court sustained
defense counsel’s objection to the prosecution’s statement that its role was to
“fairly enforc[e] the criminal laws,” and thus, the government would not ignore the
retaliatory shooting against Orlando. The trial court stated that it would allow the
prosecution, “a little bit of leeway” in describing its role in that way, since the
prosecution would later be calling Jordan Howe’s godbrother, Morgan, as a
government witness.
52
Once the prosecution completed its opening statement, Williams’s counsel
requested a curative instruction from the court to address the “emotional nature” of
some of the prosecution’s opening statement. The prosecution did not object to the
instruction, but stated that it did not believe the instruction was necessary and that
if the court would give one, it requested that the instruction be given after all of
counsels’ opening statements. The trial court agreed that the instruction would be
appropriate due to some emotional reactions in the courtroom during the
prosecution’s opening statement and the court stated that it would give the
instruction after all of the opening statements.
The trial court gave the following instruction to the jury after opening
statements: “Ladies and gentlemen, this case may evoke emotions from witnesses
and others. I want to remind you that you are to base the verdicts in this case on
the evidence and the law as I instruct you[,] not . . . on emotions.”
2. Closing Argument
Additionally, Williams takes issue with several statements made by the
prosecution during its initial closing argument, as well as the prosecution’s use of a
photograph. While there were several objections raised by the defense, none of the
53
defense counsel moved for a mistrial during the prosecution’s closing argument.
Williams argues that the trial court should have sua sponte declared a mistrial due
to improper comments made by the prosecution.
Williams claims the following comments by the prosecution during its
closing argument were improper. First, Williams argues that the prosecution’s
characterization of certain government witnesses as “heroes” was improper.
During its closing, the prosecution stated that the actions of government witness
Michael White, who testified that he came forward to police officers with
information about the South Capitol Street shooting because he was tired of the
violence, was “heartening.” Williams’s counsel objected to this characterization,
but the trial court did not respond. The prosecution also stated that Antonio
Alston, Williams’s cousin, who came forward and exonerated a juvenile that MPD
officers had initially mistakenly identified as the driver of the minivan in the South
Capitol Street shooting was a “hero” and to “bless him for that.” The prosecutor
stated further, “[i]f we’re not about truth and we’re not about justice, then we’re
not about anything.” Later the prosecution told the jury that Alston was doing
“God’s work” upon which defense counsel objected, and the trial court sustained
the objection.
54
Second, Williams argues the prosecution’s statements that the jury should be
“proud” of how MPD conducted its investigation, were improper. The prosecution
also asked the jury if they would have had the police stop the investigation after
Orlando and Simms had been chased down. The defense objected, and the trial
court called all defense counsel to the bench to address their objections
simultaneously. The trial court ruled that because there were attacks by the
defense on the police’s investigation of the case, the government could “comment
on the quality of the investigation,” but also acknowledged that the prosecution
should not suggest that the jurors should show their appreciation for the police
department though their verdicts. The court gave a curative instruction,
recommended by the defense, that the jury should “determine the facts in [the] case
without prejudice, fear, sympathy or favoritism,” but the court also balanced this
instruction with a statement that it is proper for the attorneys to comment on the
quality of the police investigation.
Third, Williams challenges the prosecution’s use of the photograph of one of
the victims, William Jones, lying dead at the scene of the South Capitol Street
shooting, during its closing argument. For context, prior to trial, Williams’s
counsel objected particularly to the government’s use of this photograph of Jones.
The government responded that the photograph was appropriate to support an
55
inference of intent to kill by the appellants who used high power weapons, like the
AK-47. The court ultimately found the photograph admissible to meet the
government’s burden of proof, but noted it would reconsider “if suddenly there
[was] a whole mass of these same photographs over and over and over again.”
Defense counsel challenged the prosecution’s use of the photograph as an
exhibit in its closing argument, asserting that the photograph was blown up and
was provoking an emotional reaction from the audience. The trial court overruled
the objection, finding that although someone in the audience left the courtroom
because of an emotional response to the photograph, the prosecution had used the
photograph, not to evoke emotion, but for a “legitimate purpose” of showing the
power of the AK-47. Williams now essentially makes the same argument on
appeal: that the prosecution’s use of the photograph of Jones prejudiced the
defense because the prosecution, “intentionally showed that graphic [photograph] .
. . when other more appropriate ones were available . . . simply for its . . .
emotional impact upon the jury.” Finally, Williams states that the prosecution’s
final statement to the jury during its closing that “[t]he families here are not asking
you for vengeance. They’re only asking you for justice,” was improper.
56
3. Legal Principles
“The purpose of an opening statement is to give the broad outlines of the
case to enable the jury to comprehend it.” Bailey v. United States, 831 A.2d 973,
981 (D.C. 2003) (emphasis added) (citation, internal quotation marks, and brackets
omitted). Therefore, “an opening statement should not be argumentative, nor
should it appeal to the passions and sympathies of the jury.” Id. at 981 (internal
citation omitted). However, in closing argument, counsel is permitted to make
arguments and commentary “as long as it is in the general nature of argument, and
not an outright expression of opinion.” Burgess v. United States, 786 A.2d 561,
571 (D.C. 2001) (emphasis added) (citation and internal quotation marks omitted).
Both “the scope and extent of [an] opening statement,” as well as “[t]he regulation
of closing argument” are left to the discretion of the trial judge. Jennings v. United
States, 431 A.2d 552, 560 (D.C. 1981); Anthony v. United States, 935 A.2d 275,
283 (D.C. 2007). Therefore, regarding the issue of an improper statement by
counsel during an opening statement or closing argument, “[t]he question of what,
if any, remedial action is appropriate is committed to the trial judge’s discretion . . .
‘and we do not lightly overturn [its] discretionary rulings.’” Simmons v. United
States, 940 A.2d 1014, 1024-25 (D.C. 2008) (footnote omitted).
57
When evaluating claims of prosecutorial error, we must first determine
whether the challenged statements from the prosecutor, viewed in context, were, in
fact, improper. Bailey, supra, 831 A.2d at 981. If the statements were improper
and the claim was properly preserved at trial, a reversal is only warranted if the
statements caused “substantial prejudice.” Freeman v. United States, 689 A.2d
575, 584 (D.C. 1997). “The applicable test for prejudice is whether we can say,
‘with fair assurance . . . that the judgment was not substantially swayed by the
error.’” Anthony, supra, 935 A.2d at 284 (citations omitted); see Kotteakos v.
United States, 328 U.S. 750, 765 (1946) (announcing the harmless error standard).
The four factors to be considered when determining prejudice are “‘1) the gravity
of the impropriety, 2) its relationship to the issue of guilt, 3) the effect of any
corrective action by the trial judge, and 4) the strength of the government’s case.’”
Fearwell v. United States, 886 A.2d 95, 102 (D.C. 2005) (citations omitted); see
also Bailey, supra, 831 A.2d at 981.
4. Analysis
The statements made by the prosecution during its opening statement and
closing argument can be addressed in tandem. Williams argues that this court must
consider the cumulative effects of the prosecutor’s statements, instead of reviewing
58
the statements in isolation. The government argues that the prosecution’s
references to the inscription at the Supreme Court were merely a statement of the
government’s theory of the case, and thus were not improper. The government
also argues that the prosecution’s statements during closing argument were all
permissible forms of argument.
a. Statements in Opening Statement
To begin, the prosecution’s thematic discussion of “Equal Justice Under
Law,” and its comments that the defendants had taken the law into their own
hands, did not appear to cross the line of permissible opening statements, as the
comments were not argumentative. See Bailey, supra, 831 A.2d at 981. However,
even if the comments were improper, in the context of this case, the prosecution’s
elaboration on this theme was not so grave as to warrant a mistrial. The statements
came at the beginning of a long line of opening statements by counsel, in a three-
month long trial, and were only statements enunciating a theory of the case, not
statements specifically “related to the evidence in the case.” Id. at 985. Williams
makes no specific argument on appeal as to how the statements may have affected
the outcome of the trial. See id. (“Appellant has not persuaded us that [the
prosecutor’s improper statements] made any real difference in the outcome of the
59
proceedings.”). Moreover, the trial judge was attentive to defense counsel’s
concerns and objections, and even interjected sua sponte to instruct the prosecution
“to focus on what the evidence is going to show” and not to give a closing
argument. See id. at 986; see also Wright v. United States, 508 A.2d 915, 921
(D.C. 1986) (“[T]he court may curtail an opening statement that becomes
argumentative or inflammatory.”) (citation omitted).
Accordingly, the trial court’s decision not to grant Williams’s motion for a
mistrial due to the government’s opening statement was proper, especially because
“a mistrial is a severe remedy . . . one to be taken only in circumstances
manifesting a necessity therefor.” Trotter v. United States, 121 A.3d 40, 53 (D.C.
2015) (brackets, footnote, and internal quotation marks omitted). It was well
within the trial court’s discretion to decide, alternatively, to give a curative
instruction to the jury to “base [their] verdicts . . . on the evidence and . . . not . . .
on emotions” and defense counsel all agreed to this instruction. See id. at 54 (“The
trial court was in a position to evaluate the impact of the prosecutor’s [] comments
and the likely efficacy of a curative instruction.”) (footnote and internal quotations
omitted).
60
b. Statements and Use of a Photograph in Closing
Argument
Similarly, the statements made by the prosecution during its closing
argument did not warrant a mistrial. First, the prosecution’s references to the
quality of the police investigation and its statements that the jury should be
“proud” of MPD officers were not improper when considered in context. The
prosecutor is allowed to respond to defense counsel’s attacks regarding the quality
of the police investigation during trial because “it is in the general nature of
argument, and not an ourtright expression of opinion.” See Burgess, supra, 786
A.2d at 571 (quoting Irick v. United States, 565 A.2d 26, 36 (D.C. 1989)). For
example, in Bailey, a prosecutor glorified a police investigation and his “heroism”
in its opening statement and this court held that, while the statements “came close”
to the limits of permissible comment, they “did not cross the line, nor . . . warrant a
mistrial.” Bailey, supra, 831 A.2d at 983. The prosecutor’s references in this case
to government witness Alston as a “hero” and to government witness White’s
actions as “heartening” are similar. Especially in light of the latitude afforded to
counsel during closing argument, such statements were not impermissible
characterizations in response to defense counsel’s cross-examinations of those
witnesses. Additionally, the statements did not urge the jurors to place themselves
“in the position of the victim,” nor did the statements rise to the level of an appeal
61
“to the jury’s emotions.” See Tyree v. United States, 942 A.2d 629, 643 (D.C.
2008) (“This court has repeatedly cautioned that it is improper for the prosecutor to
seek to place the jurors in the position of the victim.”).
Next, while the prosecutor’s final comment during closing argument that
“the families here are not asking you for vengeance. They’re only asking you for
justice,” may have appealed to the sympathy of the jurors, the prosecution did not
cross the line by asking the jurors to “send a message to the defendant[s]” or to the
community with their verdicts, which is “something we have repeatedly
condemned.” Bailey, supra, 831 A.2d at 984 (internal quotation marks omitted).
Again, Williams has not alleged any specific prejudice that flowed from this final
statement in the context of a three-month long trial and lengthy closing arguments
by all counsel. See id. at 985 (finding that the prosecutor’s improper comments
were not severely prejudicial, as they were made in a “long closing argument, after
a long trial, and they were not related to the evidence in the case”).
Finally, Williams’s challenge to the prosecutor’s use of the photograph of
William Jones during its closing argument is unavailing. The photograph was
admitted into evidence, and as the trial court noted, the photograph was used by the
prosecutor to show the high power of the AK-47 to infer appellants’ intent to kill.
62
See Jones v. United States, 27 A.3d 1130, 1142 (D.C. 2011) (“The admission of
photographs is within the sound discretion of the trial judge.”) (citations and
internal quotation marks omitted); see also Leasure v. United States, 458 A.2d 726,
728 n.2 (D.C. 1983) (holding that the trial court did not abuse its discretion in
admitting photographs of the murder victim, as they had probative value in
confirming the identity of the victim, the location of the offense, the cause of
death, and appellants’ malice and premeditation”) (internal citations omitted).
B. Technical Issues With Husher
Orlando claims that he is entitled to a new trial because, throughout trial, the
courtroom “husher” failed to work properly and exposed the jury to prejudicial and
extra-judicial information. He acknowledges, however, that his defense counsel
did not raise the husher issue during trial, and that his counsel never made any
assertions before the trial court that certain statements may have been overheard by
the jurors during bench conferences. Nevertheless, Orlando requests that this court
presume prejudice (1) due to the husher not working properly on at least two
occasions within a two-week period of the trial, and (2) because the judge did not
conduct a hearing to determine if the jurors overheard any statements during bench
conferences.
63
1. Additional Factual Background
On February 16, 2012, five days prior to the start of trial, the trial court
explained to the jurors, “[t]he [purpose] of the bench conferences is so you won’t
hear what we’re talking about. So please don’t try to read lips whenever we’re
using them.” On the first day of trial on February 21, during a bench conference,
the trial court indicated to one of the courtroom technicians, “Everybody’s able to
hear me when I’m talking with the hushers.” Afterwards, the court called all
counsel to the bench and stated, “I think we have the hushers amped up now, so
maybe it’ll work,” and then asked for those in the courtroom to let her know if they
could hear the court when the husher was on. No one notified the court that they
could hear the bench conferences that day.
However, approximately two weeks later, on March 1, during a bench
conference, a juror notified the court that the juror could “almost hear [the bench]
conversations sometimes . . . .” (emphasis added). The court responded, “Thank
you for letting me know” and told someone in the courtroom “the jurors are able to
hear when the husher’s on, so we need to get that adjusted at our break if we
could.” The juror clarified that, “It’s just some tones to the conversations. We’re
64
trying not to [hear],” and the court responded, “Right. But I appreciate you telling
me that. So thank you. It’s important to have private conversations here.”
On March 7, the trial court stated, presumably to a courtroom technician,
“Apparently the husher is still a bit of a problem. It is not being loud enough. If
you could, during a break, adjust it, I would appreciate that.” The court advised
counsel that they “need[ed] to talk very quietly if [they] are doing something at the
bench because of it.” During bench conferences that day, no party suggested any
further problems with the husher. On March 14, the court asked jurors if the
husher was now effective and a juror responded that, “There just needs to be one
more speaker.” The trial court then stated, “Okay. We’ll try to talk more quietly.
If you can just raise your hand if you’re hearing us. Thank you. But do make an
effort not to listen.” The record does not show that any juror thereafter raised a
hand to indicate a further problem. During a bench conference later that day,
counsel and the court repeatedly reminded each other to keep their voices down.
No counsel ever objected or made any requests to the court about the husher.
On appeal, Orlando argues for the first time that the jurors were likely able
to hear two bench conferences in particular. First is a bench conference in which
the trial court admonished Orlando’s trial counsel for “showboating” before the
65
jury. Second is a bench conference during which Orlando’s counsel sought
assurance from the prosecution that it would not elicit any testimony from
government witness Ronald Ray that Orlando may have shot at Ray or may have
been involved with other persons shooting at Ray.
The first bench conference occurred on March 1, the same day that the juror
first alerted the court to a problem with the husher. During this conference, the
trial court admonished Orlando’s counsel for doing “a big raising eyebrow thing in
front of the jury” after the court’s rulings, and told counsel, “I don’t want you to be
showboating in front of this jury by raising your eyebrows[.]” The judge pointed
out to Orlando’s counsel, “there’s been twice in this trial now where after I ruled,
you made a big show” and that she was “only using [the] opportunity to say [that]
at the bench because [she didn’t] want to repeat it.”
The second bench conference occurred later that same day, immediately
prior to government witness Ray’s testimony, where Orlando’s counsel stated to
the court and the prosecutor, “I know that there’s some reference in some of the
documents that . . . Ray was of the thought that . . . Orlando . . . had something to
do with someone shooting at him. I just wanted to make sure that [the prosecution
was not] seeking to elicit any of those things.” The prosecutor responded, “I am
66
not going to try to elicit those” and further stated that he did not intend “to get into
anything [regarding Ray’s] thoughts, as [Ray] said in the grand jury, that perhaps
Orlando . . . might have shot at [him].”
2. Legal Principles
The trial court “has an obligation to investigate a plausible claim that the
jury has been exposed to extrinsic evidence.” Garrett v. United States, 20 A.3d
745, 748 (D.C. 2011). Accordingly, “when it is alleged that a jury has been
exposed to extrinsic evidence, the trial court should inquire as to the nature of the
evidence and how the jury came to be exposed to it.” Id. In circumstances in
which “the impartiality of a juror has been plausibly called into question, it is the
responsibility of the trial judge to hold a hearing to determine whether the
allegation of bias has merit.” Medrano-Quiroz v. United States, 705 A.2d 642, 649
(D.C. 1997). However, “[a] trial judge [] does not need to engage in an inquiry
when an allegation of [] reliance on extrinsic evidence is speculative.” Garrett,
supra, 20 A.3d at 749.
Orlando cites to Garrett and (Donald) Young for support. Garrett involved
a juror note in which the jury asked the court if it could consider a statement a
67
witness had muttered while on the stand, which was not in response to questioning
by counsel. Id. at 747. Over the defense’s objection, the trial court sent back a
note stating “yes,” without any inquiry into details of what the jury was referring to
by “muttered utterance” because the court did not want to violate the jury’s
deliberation process. Id. at 747. This court held that the trial court had abused its
discretion because after receiving the jury note, the court had “an obligation to
investigate” and to “inquire as to the nature of the [extrinsic] evidence and how the
jury came to be exposed to it.” Id. at 748-49.
In (Donald) Young, the trial court repeatedly criticized Young’s defense
attorney throughout trial, often during the defense counsel’s cross-examination of
government witnesses. (Donald) Young v. United States, 346 F.2d 793, 795 (D.C.
Cir. 1965). Following the trial court’s “severe criticism” of the defense attorney at
bench conferences, the defense attorney notified the court the following day that a
“number of bystanders” had informed him that they overheard “all of [those] bench
conferences,” and the defense moved for a mistrial. Id. The court did not grant the
defense’s request for a mistrial and simply stated in response, “[t]here will be no
more bench conferences.” Id. at 796. The D.C. Circuit held that the “court’s
continual intervention” during the defense’s cross-examinations may have
precluded the defense counsel from “devot[ing] his best talents to the defense of
68
his client.” Id. at 794-95 (internal quotation marks and citation omitted). The
court further held that the trial court should have held a hearing to determine
“whether counsel could produce witnesses to substantiate his allegations,” and that
it was not confident that the jury did not hear the court’s remarks. Id. at 796.
3. Analysis
This case is distinguishable from both Garrett and (Donald) Young because,
here, neither Orlando’s trial counsel nor other defense counsel ever asserted to the
trial court that the jury overheard certain statements made during bench
conferences. Still, Orlando asserts on appeal that “jurors could overhear extremely
prejudicial comments.” This claim is speculative without any record support that
the jury actually overheard statements from either of the bench conferences that
Orlando discusses. In fact, the record indicates that the trial court was very
attentive to the husher issue, and repeatedly sought to ensure that the husher was
working properly and to mitigate any concern. Specifically, the court instructed
the jury not to try to overhear the bench conferences, informed the courtroom
technician at least twice that the husher needed to be fixed, reminded counsel to
speak quietly at bench conferences, and asked the jurors to notify the court if they
could hear the bench conferences. Thus, the trial court carefully ensured that the
69
jury was not exposed to “extrinsic evidence” from the bench, and there was no
evidence that the jury, in fact, was exposed to or overheard any of the comments
made during the bench conferences. Furthermore, the defense counsel never made
any allegations or raised any concerns to the trial court that the jury may have
overheard certain conversations at the bench. In such an instance where the trial
court acted carefully in light of the issue with the husher, and given the lack of
evidence that the jury actually overheard anything, the trial court did not have a
duty to sua sponte inquire as to whether the jurors overheard the bench conferences
that Orlando references here on appeal. Accordingly, we reject Orlando’s claim
that the issue with the husher requires reversal of his convictions and a new trial.
C. Statements Against Penal Interest
Best argues that his video confession to his mother and his verbal confession
to Salazar were both improperly admitted at trial as statements against his penal
interest. Best claims that in admitting the statements, the trial court improperly
applied prongs one and three under the Laumer standard, which governs the
admission of statements against penal interest. See Laumer v. United States, 409
70
A.2d 190 (D.C. 1979) (en banc). 31 Specifically, with regard to Best’s video
confession to his mother, Best argues that the trial court improperly applied prong
one of the Laumer standard because the court failed to identify a particular
statement made by Best, and instead only based its ruling on non-verbal responses
from Best to Ms. Best, which did not rise to the level of “unambiguous assent” to
Ms. Best’s statements. He also contends that it is unclear whether his non-verbal
and verbal communications amounted to a confession, as opposed to a variety of
other “plausible explanations” for his conduct. Best also argues that his gestures to
his mother were untrustworthy as statements against his penal interest under prong
three of Laumer because the gestures were subject to a non-incriminating
interpretation — i.e., that he had dropped his head and cried to his mother, not out
of an admission of guilt, but instead because he was upset that his mother had
taken the side of the police.
With respect to Best’s verbal confession to Salazar, Best argues that under
the first prong of the Laumer standard, the trial court improperly concluded that
Best made the reported statements to Salazar. Best also argues that his alleged
31
The standard “requires that the trial judge undertake a three-step inquiry
to ascertain (1) whether the declarant, in fact, made a statement; (2) whether the
declarant is unavailable; and (3) whether corroborating circumstances clearly
indicate the trustworthiness of the statement.” Laumer, supra, 409 A.2d at 199.
71
statements to Salazar were untrustworthy under prong three of the Laumer standard
because the statements were contradicted by evidence at trial.
1. Additional Factual Background
a. Admission of Video
Prior to trial, the court considered whether the video of Best’s non-verbal
interactions with his mother should be admitted as a confession. The trial court
ultimately concluded that Best made a statement against penal interest to his
mother, stating that Best was not “simply silen[t]” in the video, but instead he and
his mother were communicating with one another non-verbally. The court further
stated, “There are nods[,] . . . . [Best’s] weeping, his asking to be hugged, the
whole set of communications[.]” The court also noted that the video shows Ms.
Best’s own assessment of her son’s communication to her, which she understood
as Best saying that he had been involved in the shootings. The court considered
the defense’s assertions that Ms. Best had been misled by leading questions when
she testified to the grand jury that her son had admitted his involvement to her.
However, the court found that Ms. Best’s statements to the grand jury corroborated
the videotape.
72
The trial court also stressed that by allowing admission of the video, the jury
would not be “required to find that [Best] made a statement against interest,” but
nonetheless the jury could reasonably make that finding if it chose to do so. The
court stated to both the government and defense, “I too have watched this video
many, many, many times. And there is this . . . very tiny — and, again, it can be
debated — but it is a tiny, what looks like a nod in agreement. And it’s part of the
communication that went on there.”
b. Admission of Salazar’s Statements
Prior to trial and after hearing arguments from the prosecution and from
Best’s defense counsel regarding the admissibility of Best’s verbal confession to
Salazar, the trial court determined that Best’s statements to Salazar were
admissible as statements against penal interest. The court acknowledged that there
were inconsistencies between Salazar’s testimony and other evidence in the case,32
32
The court was presented with evidence that: (1) Best never returned to
Salazar’s apartment at the time she claimed that he made his confession to her, (2)
Salazar had a motive to testify against Best in order to protect her boyfriend
Simms, (3) Salazar admitted to smoking marijuana during the time of the alleged
confession, (4) Salazar initially told police that Best never made any statements to
her regarding the shootings, and (5) there was a discrepancy in her statement
because she said that Best told her M.C. (the juvenile who was mistakenly
(continued . . .)
73
but found that those inconsistencies were “comparable to many inconsistent
statements we’ve seen throughout this trial of people who are fearful of getting
involved . . . and who say one thing and then later say something else.” The court
noted that Salazar’s account was reliable because Best and Salazar were close
friends, so Salazar’s motive to fabricate his confession was not strong. The court
also noted that Salazar’s account was corroborated by other evidence, including the
video surveillance showing Best with the bag that Salazar stated that he had
retrieved from her apartment and specific details that Best told Salazar regarding
the shooting, such as the fact that a girl had been shot in the head.
2. Legal Principles
The rationale behind the statement against penal interest exception to the
hearsay rule is that “reasonable people usually do not make statements against their
penal interest unless the statements are true, [and thus,] the statements are reliable
. . . insofar as they genuinely increase the declarant’s exposure to criminal
sanction.” Thomas v. United States, 978 A.2d 1211, 1227 (D.C. 2009) (footnote
omitted). “[T]o ascertain whether a proffered statement is admissible under the
(. . . continued)
arrested) was innocent, when at the time, the fact that M.C. had been arrested was
not known to the public.
74
penal interest exception, the trial court must undertake a three-step factual
analysis.” Id. at 1227-28. The court must determine: “(1) whether the declarant, in
fact, made the reported statement; (2) whether the declarant is unavailable to
testify; and (3) whether corroborating circumstances clearly indicate the
trustworthiness of the statement.” Id. at 1228 (footnotes and internal quotation
marks omitted).
Best argues that the trial court erred in finding that prongs one and three
were met with regard to his video confession to Ms. Best and his alleged
confession to Salazar. In determining the first factor, whether the declarant in fact
made the reported statement, the court looks to “the veracity of the witness who
repeats the declaration.” Laumer, supra, 409 A.2d at 199. In determining the third
factor, the court must ascertain whether there are “corroborating circumstances that
clearly indicate the trustworthiness of the statement,” by looking at factors such as
“(1) the time of the declaration and the party to whom the declaration was made;
(2) the existence of corroborating evidence in the case; [and] (3) the extent to
which the declaration is really against the declarant’s penal interest.” Id. at 200
(citations omitted).
75
The trial court’s conclusions that the video of Best’s confession to his
mother and Salazar’s statements regarding Best’s confession were admissible as
statements against penal interest are legal questions, which this court reviews de
novo. Thomas, supra, 978 A.2d at 1225 (quoting Laumer, supra, 409 A.2d at 203).
“However, [this court] will not disturb the factual findings supporting the [trial]
court’s conclusion unless they are clearly erroneous.” Id. (footnote omitted).
3. Analysis
a. Best’s Video Confession
With regard to Best’s video confession to his mother, after reviewing the
videotape, we conclude that the trial court properly admitted the video under the
statement against penal interest hearsay exception. Whether Best nodded and
thereby, in fact, made a statement is “essentially [a] factual determination” to
which we give deference to the trial court, unless clearly erroneous. Walker v.
United States, 167 A.3d 1191, 1209 (D.C. 2017) (“The clearly erroneous standard
precludes the appellate court from setting aside a trial court’s finding of fact unless
the judgment is plainly wrong or without evidence to support it.”) (footnotes and
internal quotation marks omitted). In making this factual determination, “the trial
76
court’s focus is not on the truth of the declaration, but on the veracity of the
witness who repeats the declaration.” McCorkle v. United States, 100 A.3d 116,
120 (D.C. 2014) (citation omitted). In finding that Best’s non-verbal responses to
his mother qualified as statements against his penal interest, the trial court made
sufficient findings that prong one of the Laumer standard was satisfied because the
court noted that Best appeared to give a “tiny” nod in response to his mother’s
question about whether he had hurt anyone. The court also concluded that Ms.
Best understood Best to be confessing to her, which was supported by her response
to Best in the video, asking him, “What for? Cause he shot Orlando?” The court
further noted that Best’s responses such as crying, lowering his head again, and
asking his mother for a hug were further non-verbal and verbal communications
that qualified as statements against penal interest. Best’s argument on appeal that
his non-verbal responses to his mother could not constitute statements fails because
Federal Rule of Evidence 801 (a), which this court has adopted, clearly defines
“statement” as an “oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.” Fed. R. Evid. 801 (a) (emphasis added); see
also Little v. United States, 613 A.2d 880, 882 (D.C. 1992) (adopting Federal Rule
of Evidence 801 (a)’s definition of “statement”).
77
The trial court also made sufficient findings that prong three, whether Best’s
statement bore indicia of trustworthiness, was met. In determining whether there
are sufficient corroborating circumstances that indicate the reliability of the
statement, “relevant considerations include: (1) the timing of the declaration; (2)
to whom the statement was made; (3) the existence of corroborating evidence in
the case; and (4) the extent to which the declaration is really against the declarant’s
interest.” Walker, supra, 167 A.3d at 1209 (footnote and internal quotation marks
omitted). This does not require “that the information within the statement be
clearly corroborated” but “only that there be corroborating circumstances that
clearly indicate the trustworthiness of the statement itself.” Ingram v. United
States, 885 A.2d 257, 266 (D.C. 2005) (emphasis and citation omitted). “The
corroboration requirement of this rule is a preliminary determination as to the
statement’s admissibility, not an ultimate determination about the statement’s
truth.” Id. (citation omitted).
In making its findings as to prong three, the trial court noted that Best’s
statements were corroborated both by Ms. Best’s contemporaneous understanding
that Best was confessing to her, and by Ms. Best’s testimony to the grand jury that
Best had admitted involvement to her while they were in the interrogation room.
On this record, those findings are not clearly erroneous. We have previously noted
78
that “the existence of a close relationship between the declarant and the witness
also may provide indications of trustworthiness.” Laumer, supra, 409 A.2d at 201.
The statements here were made to Best’s mother — who Best presumably trusted
— shortly after his arrest. See Anthony v. DeWitt, 295 F.3d 554, 564 (6th Cir.
2002) (“[S]tatements made to a family member or perceived ally, in confidence,
have previously been deemed sufficiently trustworthy.”). Moreover, Best’s
involvement in the shooting was significantly corroborated by both eyewitness
testimony and DNA evidence implicating him. See, e.g., Walker, supra, 167 A.3d
at 1210-11 (corroborating circumstances clearly indicated the trustworthiness of
the statement where the statement was made two months after the shooting, to his
then-girlfriend whom he presumably trusted, in private, and where the testimony of
eyewitnesses and surveillance video supported his presence at the scene); Terry v.
United States, 114 A.3d 608, 628-29 (D.C. 2015) (determining that sufficient
corroborating circumstances justified admission of the defendant’s statements
under the Laumer test because the statements were made to a neighbor, whom he
had a close relationship with, the statements were made days after the shooting,
and eyewitness testimony and DNA evidence clearly inculpated the defendant).
Best asserts, however, that “as a matter of law,” the statements were not
truly against his penal interest as his actions in the video could be construed in a
79
way other than admitting guilt — such as remorse that his mother had “turned her
back” on him and sided with the police — and therefore, one of the factors weighs
against a finding of trustworthiness. Relying on Andrews v. United States, he avers
that “if there are two possible interpretations of [a] statement . . . , one of which
would subject [the declarant] to criminal liability while the other would not, the
necessary indicia of trustworthiness [as per Laumer’s third prong] are absent.” 981
A.2d 571, 576 (D.C. 2009). There, we agreed with the trial court’s decision to
exclude a proposed statement-against-interest because there were two possible
meanings of the statement: one of which was incriminating and the other
innocuous. In reaching that conclusion, we noted that there was “no evidence in
the record to corroborate the statement that [appellants] tried to ‘set up’ all three
(or any officers).” Id. (emphasis added). We encounter no such hurdle in this
case.
Upon review of the videotape, it would not be clearly erroneous to conclude
that Best was non-verbally communicating with his mother, and thereby confessing
his involvement in the shooting. Such an interpretation is sufficiently corroborated
by other compelling evidence detailing Best’s involvement, as well as Best’s own
mother’s contemporaneous understanding of him to be confessing to her.
Throughout their interaction, Ms. Best responded to Best’s non-verbal
80
communication with additional questions tailored to what she believed the initial
response had been. When asked whether he had hurt anyone, Ms. Best inquired
“What for? Cause he shot Orlando?” after understanding Best’s “tiny” nod to be
confirmatory. She further solidified this understanding through her testimony to
the grand jury in which she attested that Best had admitted involvement in the
shooting to her while they were in the interrogation room. What is more, the entire
exchange was captured on video. Thus, it was not clearly erroneous for the trial
court to find there was sufficient evidence to corroborate Best’s statements to his
mother.
Accordingly, the record supports the trial court’s findings that Best’s
statements to his mother were admissible under the declaration against penal
interest exception to the hearsay rule.33
33
The court also found that Best’s non-verbal responses to his mother were
admissible as adoptive admissions, a ruling which Best likewise challenges on
appeal. We agree with the trial court’s decision. “A defendant may make an
admission by adopting or acquiescing in the statement of another.” Blackson v.
United States, 979 A.2d 1, 6 (D.C. 2009) (citation and internal quotation marks
omitted). The adoption need not be explicit, but may be inferred by the
surrounding circumstances of the conversation. Id. at 7. For the same reasons that
we conclude the trial court did not err in admitting the videotape under prong one
of the Laumer standard, we conclude that Best’s non-verbal responses were
admissible as adoptive admissions as evidence against Best based on the context
and surrounding circumstances of the conversation.
81
b. Salazar’s Testimony of Best’s Confession
Similarly, there was no error in the trial court’s finding that Best’s
confession to Salazar was admissible. With regard to prong one of the Laumer
standard, the court found that Salazar’s statement was reliable because she and
Best were close friends, and thus, it was not likely that she would fabricate his
confession to her. Furthermore, even if Salazar was motivated to protect Simms,
as the trial court noted, Salazar’s testimony on Best’s confession actually
implicated Simms, because she testified that Best told her that Simms shot the AK-
47. In addition, Best’s confession to Salazar occurred on the same night of the
shooting or very soon thereafter, making the statements more reliable. Although
Salazar first indicated to police that Best did not make any statements to her about
the shooting, as the trial court noted, Salazar’s inconsistencies were comparable to
many inconsistencies from other witnesses at trial who were fearful of getting
involved in the case.
Under prong three of the Laumer standard, the trial court properly
acknowledged that Salazar’s account of Best’s confession to her was corroborated
by details surrounding the shooting, such as evidence that Orlando drove, that
Simms shot the AK-47, and that a girl had been shot in the head. Best’s main
82
challenges to admission of her statement under prong three are his assertions that
he could not have told Salazar that the juvenile was falsely arrested because that
information was not public at the time, and in addition, he could not have
confessed to Salazar on the night of the shooting because surveillance video from
his girlfriend Proctor’s apartment showed that he entered Proctor’s apartment that
night and never left to visit Salazar. However, both of these challenges to the
video were successfully presented during cross-examination by Best’s defense
counsel. In light of the trial court’s findings that Best’s statements were
corroborated by many other details of the shooting, this inconsistent evidence was
not a basis for the trial court to exclude Salazar’s testimony regarding Best’s
statements to her. Accordingly, the trial court properly concluded that prongs one
and three of the Laumer standard were met for Best’s verbal confession to
Salazar. 34
34
Salazar’s testimony about Best’s confession would likewise be admissible
as an admission of a party opponent as evidence against Best. See, e.g., Chaabi v.
United States, 544 A.2d 1247, 1248 (D.C. 1988) (“The basis for allowing an
admission into evidence is the ability of the party to rebut the testimony, thereby
avoiding the danger prevented by the hearsay rule, that is, the inability to cross-
examine an out-of-court assertion.”) (citation and internal quotation marks
omitted).
83
D. Withdrawal From Conspiracy Jury Instruction
Appellant Williams argues that the trial court erred when it refused to give
the withdrawal from conspiracy jury instruction. He claims that his action in
leaving the van right before the others committed the South Capitol Street shooting
constituted withdrawal from that conspiracy.
1. Additional Factual Background
Immediately prior to the South Capitol Street shooting, Williams was in the
car with Orlando, Simms, Best, and Bost as they prepared to shoot Howe’s
associates. Simms testified at trial that Williams told the men, “Y’all about to go
commence. Y’all can let me out right here[,]” before exiting the car. Due to
Simms’s testimony regarding this statement by Williams, at the end of trial,
Williams’s counsel requested that the judge give the jury an instruction on the
withdrawal from a conspiracy defense. Williams’s counsel requested that the
following instruction be read to the jury:
A person who may have entered into an agreement to
commit a crime — a conspiracy — may subsequently
withdraw from that agreement. If he does that, he may
no longer be held responsible for actions subsequently
taken by his former coconspirators. To withdraw from
such an agreement a person must unequivocally indicate
84
to his co-conspirators that he no longer will participate in
the agreed activity.
The trial court declined to give that instruction, finding that no “reasonable
juror, based on Nathaniel Simms’s testimony about what Lamar Williams said in
the minivan . . . could find that there was a withdrawal by [] Williams from the
conspiracy.”
2. Legal Principles
“[A] defendant is entitled to an instruction as to any recognized defense for
which there exists evidence sufficient for a reasonable jury to find in his favor.”
McCrae v. United States, 980 A.2d 1082, 1086 (D.C. 2009) (citation omitted).
“Thus, the proper inquiry is whether there is evidence from either the prosecution
or defense that fairly raises the defense.” Id. (citation omitted). “However, where
there is no factual or legal basis for a requested instruction, it is not error for the
trial court to refuse to instruct the jury on that defense.” Id. (citation omitted).
“[T]o withdraw from a conspiracy one must take affirmative action to
disavow or defeat the purpose, or definite, decisive and positive steps which
indicate a full and complete disassociation.” (Mary) Harris v. United States, 377
85
A.2d 34, 38 (D.C. 1977). “Passive nonparticipation in the continuing scheme is
not enough to sever the meeting of minds that constitutes the conspiracy.” Smith,
supra, 568 U.S. at 112-13.
Our decision in (Mary) Harris v. United States, which discusses withdrawal
from a conspiracy, is instructive on this issue. 377 A.2d at 38. In (Mary) Harris,
after her daughter was raped, Harris agreed, along with her daughter, her
daughter’s son, and other persons, to “find and deal forcibly” with the rapist. Id. at
36. In planning the retaliation, Harris helped to identify the suspected rapist and
provided a firearm to her daughter’s son, who told her he would “pistol-whip” the
assailant. Id. When a group gathered at the suspected rapist’s home, Harris left
and went to a porch, and when a person answered the door at the suspected
assailant’s home, he was shot several times with a pistol. Id. Harris was
convicted, amongst other charges, of conspiracy to commit an assault with a
dangerous weapon for her role in the incidents as an aider and abettor. Id. at 36.
On appeal, she argued that there was insufficient evidence to prove that she was an
aider and abettor, in part because she had withdrawn from the conspiracy before
the shooting occurred. Id. at 38. We emphasized that in order to withdraw from a
conspiracy, “one must take affirmative action to disavow or defeat the purpose, or
definite, decisive and positive steps which indicate a full and complete
86
disassociation.” Id. We further stated that “[w]hile there was testimony indicating
that [Harris] left the scene before the shooting occurred, [that testimony] was in
conflict with other evidence” and that furthermore, the evidence was “insufficient
to establish withdrawal as a matter of law.” Id.
3. Analysis
In this case, Williams’s request to be let out of the car did not constitute an
“affirmative action to disavow or defeat the purpose” of the conspiracy. Like the
appellant in (Mary) Harris, Williams played a key role in the conspiracy; he
helped provide the weapons for the South Capitol Street shooting. Williams’s
actions in providing weapons for the shooting demonstrated that he was willing to
assist with the commission of the conspiracy. Furthermore, Williams failed to
“disavow” or “defeat the purpose” of the conspiracy, or completely “disassociate”
himself from the conspiracy by leaving the car. Leaving the scene before a crime
occurs is insufficient to demonstrate withdrawal from a conspiracy. See (Mary)
Harris, supra, 377 A.2d at 38 (concluding that the fact that appellant merely left
the scene before the shooting occurred was “insufficient to establish withdrawal as
a matter of law . . .”).
87
E. Other Issues
Appellants raise several additional arguments that arose during trial that we
address summarily. First, Williams argues that the trial court should have granted
his mistrial motions due to the government’s presentation of “emotional
testimony” regarding the South Capitol Street shooting, which Williams claims
was only presented in order to appeal to the jurors’ emotions. Williams points to
the following testimony that he believes was especially inflammatory: (1) the
testimony of Officer Neftia Turner, one of the first responding officers to the South
Capitol Street shooting, who gave a detailed account of the crime scene and later
cried while testifying; (2) the testimony of Tierra Brown, who was the girlfriend of
one of the victims, Jones, and who was also present and shot in the leg during the
South Capitol Street shooting; and (3) the testimony of four mothers of victims at
the South Capitol Street shooting. Williams also refers to the testimony of
Ra’Shauna Brown and the government’s decision to play recordings of a 911 call
that included her screams. We conclude that the trial court did not abuse its
discretion in denying Williams’s mistrial motions. Certain cases, “particularly
those involving tragic death or injury, have an inherent emotional impact,” Dixon
v. United States, 565 A.2d 72, 76 (D.C. 1989), and in such cases, the government is
“not required to deliver a dispassionate presentation of sterile facts.” Chatmon v.
88
United States, 801 A.2d 92, 100 (D.C. 2002). However, in the event of an
improper comment that is potentially prejudicial, “an effectively worded curative
instruction rendered in a timely manner may serve to rectify the error.” Hazel v.
United States, 319 A.2d 136, 138 (D.C. 1974). While we question whether the
government needed to present testimony from four mothers of the victims, it is
evident that throughout trial, the trial court was attentive to the defense’s concerns
about the emotional nature of the case and repeatedly instructed the jury to decide
the case based on the evidence and the law, and not to be swayed by emotion.
There is no reason to believe that the jurors did not follow these instructions. See
Metts v. United States, 877 A.2d 113, 118 (D.C. 2005) (stating that the court would
not presume that the jury did not follow the trial court’s curative instruction).
Second, Williams argues that the trial court violated his Sixth Amendment
right by unduly restricting his ability to cross-examine Simms in regards to his
jealous behavior towards the women that he had dated. Specifically, Williams
sought to demonstrate at trial that Simms was motivated to falsely implicate
Williams in the two conspiracies because Simms was jealous that Williams
previously had relations with one of Simms’s girlfriends, Salazar. Williams further
sought to elicit testimony from Simms that Simms was jealous that his other
girlfriend, Young, might be dating other men during Simms’s incarceration. The
89
trial court restricted Williams’s cross-examination regarding Simms’s jealousy
toward Young, and we discern no error in the trial court’s limitations. While
“[b]ias or testimonial motivation is always a proper subject of cross-examination,”
Rose v. United States, 879 A.2d 986, 995 (D.C. 2005) (citation and internal
quotation marks omitted), the trial court still retains “wide latitude . . . to impose
reasonable limits on such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant,” Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). Here, the trial court’s limitation of Williams’s
cross-examination did not preclude Williams from eliciting testimony of Simms’s
potential bias against him. Williams was permitted to elicit: (1) evidence that
Williams had relations with Salazar prior to Simms’s relationship with her, (2)
testimony from Simms and Salazar regarding a prior occasion in which Simms
confronted Williams for inappropriately touching Salazar, and (3) testimony from
Simms and Young that Simms was jealous of Young dating other men. It was
within the trial court’s discretion to conclude that any further extrinsic evidence
regarding the relationshop between Simms and Young, and specific instances in
which Simms had shown jealousy toward Young, were cumulative with regard to
the relationship and level of jealousy that Simms had with Salazar. See Delaware,
supra, 475 U.S. at 679.
90
Third, Best argues that the trial court abused its discretion when it precluded
him from calling a witness to impeach Simms regarding his testimony that he
never fired a TEC-9, a semi-automatic pistol, in 2007. Best argues that the
witness’s testimony was material and would have contradicted Simms’s earlier
testimony that he was “not familiar with guns,” and would have provided support
for Best’s argument that it was actually Simms who fired the AK-47 during the
Alabama Avenue shooting, while Best remained in the car. The trial court did not
err in excluding extrinsic evidence that Simms had allegedly fired a TEC-9 in
2007. As the trial court noted, the 2007 incident “was not material” to Best’s trial;
it occured three years prior to the Alabama Avenue shooting and involved a
different weapon. Furthermore, there was no testimony or evidence adduced at
trial to support Best’s assertion that it was actually Simms who had fired the AK-
47 on Alabama Avenue. See Washington v. United States, 499 A.2d 95, 101 (D.C.
1985) (“It is well settled that a party may not present extrinsic evidence to impeach
a witness on collateral issues.”).
IV. Jury Note
Bost (joined by all appellants on appeal) argues that the trial court abused its
discretion in its response to a juror’s note sent during jury deliberations.
91
Essentially, Bost claims that the trial court should have granted defense counsel’s
motions for a mistrial after the juror’s note exhibited signs of coercion, and that,
alternatively, the court should have at least given the jury an anti-deadlock
instruction.
A. Additional Factual Background
Jury deliberations began on April 26, 2012. On May 3, one juror sent the
trial judge the following note:
After several days of deliberations we have come to a
point of disagreement where I feel pressure from many
members of the group to change my mind regarding my
vote on particular counts on which we disagree. The
emotions are very intense and I do not want other people’s
emotions or feelings to affect my decision. I want to
know if it’s possible to be recused at this point. I do not
want to make a decision based on pressure from the
group.
The trial court informed the parties of the note and was “very much open to
suggestions or changes” to its proposed response. The court explained that its
inclination was to give a “very bland response” that “emphasize[d] civility, respect,
listening to each other or expressing views and then stressing that . . . we don’t
excuse people just because there is disagreement.” Defense counsel for Sanquan
argued that, because the note used the pronoun “I,” he was “concerned” that this
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juror was “individually . . . feeling pressure from members of the group to change
her mind,” and that the “only cure for this would be a mistrial at this stage.” The
trial court “reject[ed] that [request] completely,” explaining that “there are some
people who don’t like conflict at all,” and that the “note is totally consistent with
someone . . . feeling pressure to change her view . . . but there is no suggestion that
someone is . . . doing anything improper.”
The court then engaged in an extended colloquy with the parties, where both
defense counsel and the government requested some form of an anti-deadlock
instruction. The court, however, was “determined not to give an anti-deadlock
instruction now” because it was “very premature to even be thinking along those
lines.” The court also rejected the government’s request to take a partial verdict.
After soliciting recommendations from the parties, the court gave the following
response in open court to the jury the next day on May 4:
First, I want to compliment all of you on carefully
following my earlier instruction that whenever you send
a note you not mention how you are divided on an issue.
I have no idea on what lines you are divided and what the
issues may be that are dividing them.
Second, let me stress that you are our jury. We do not
excuse jurors based on some disagreeing with others.
Any verdict in this case must be the considered view of
each juror after an impartial, rational[,] and fair
examination of the evidence in accordance with my
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instructions about the law and not improperly influenced
by emotions.
Third, I want to stress the importance of jurors treating
each other with civility and mutual respect in an
environment in which every juror is able to express his or
her views.
With that, I’m going to ask you to return and deliberate.
Thank you very much.
The jury rendered its verdict on May 7, convicting Sanquan, Orlando, Best, and
Bost on all charges, but only convicting Williams of charges stemming from the
second conspiracy.
B. Legal Principles
“[A] mistrial is subject to the broad discretion of the trial court and our
review is deferential.” Van Dyke v. United States, 27 A.3d 1114, 1122 (D.C. 2011)
(citations and internal quotation marks omitted). “To determine the coercive effect
of the trial court’s instructions to the jury during deliberations, we examine ‘all the
circumstances,’ . . . and we do so ‘from the juror’s perspective.’” Id. (citations
omitted). “Evaluation of jury coercion requires this court to inquire into: (1) the
inherent coercive potential before the trial court; and (2) the actions of the trial
judge in order to determine whether these actions exacerbated, alleviated or were
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neutral with respect to coercive potential.” Leake v. United States, 77 A.3d 971,
975 (D.C. 2013) (citation and internal quotation marks omitted).
C. Potential for Coercion
Turning first to the “inherent coercive potential” of the situation revealed by
the juror’s note, we conclude that the potential for coercion was low. As we
explained in Leake, in determining the potential for coercion:
[W]e look to a series of indicators, including: (1) the
extent of isolation of a dissenting juror; (2) whether the
identity of a dissenting juror is revealed in open court; (3)
whether the exact division of the jury’s verdict is
disclosed; (4) whether the judge is aware of the identity
of the dissenting juror; (5) whether the dissenting juror
knows of the judge’s awareness; (6) whether other jurors
feel ‘bound’ by a verdict they announced; and (7)
whether the trial court issues an ‘anti-deadlock’
instruction.
77 A.3d at 976 (citing (Robert) Harris v. United States, 622 A.2d 697, 705 (D.C.
1993)).
We apply each factor to the situation here. Factor one, the extent of the
juror’s isolation, weighs in favor of low potential coercion. The note came from
one juror who indicated that the juror felt pressure from some of the other jurors
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regarding “particular counts” in which they disagreed. The juror did not say that
the juror felt pressure from the entire remainder of the jury, or that they disagreed
on all counts. See id. (less coercion when the “precise numerical division of the
jury” has not been revealed) (citation omitted). Factor two, the identity of the
juror, was not revealed in open court as the note was passed to the trial court
during jury deliberations, rather than during the announcement of the verdict,
making it less likely that the juror felt undue pressure from the rest of the jury.
Factor three, the exact division of the jury, was also unknown as the court
addressed the jury regarding the note without referencing any particular juror,
omitting the possibility that they would feel “bound” by any decision that they had
made up to that point during deliberations. Factors four and five weigh in favor of
coercive potential, because the court knew the juror’s identity. Factors six and
seven weigh in favor of low coercive potential. No verdict was announced at the
time the court instructed the jury, and the court expressly refused to give an anti-
deadlock instruction.
Lastly, as the trial court observed, the juror’s note does not reveal any
impropriety on the part of the other jurors, only that deliberations were spirited,
which is natural given this high-profile murder case involving five co-defendants.
“The persuasive impetus inherent in the requirement of unanimity does not
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constitute coercion; such an impetus exists any time twelve persons are sent into a
jury room to deliberate.” (Robert) Harris, supra, 622 A.2d at 701 (citation
omitted).
D. Trial Court’s Actions
Next, in determining whether the trial court’s actions “exacerbated,
alleviated or were neutral with respect to coercive potential,” Leake, supra, 77
A.3d at 977 (citation and internal quotation marks omitted), we consider the
following factors:
[W]e look to (1) whether the judge made any affirmative
efforts to dispel the coercive potential, (2) whether the
judge’s actions took a middle ground, (3) whether the
judge’s actions exacerbated the problem by effectively
contributing to the potential for jury coercion, and (4)
whether the judge’s reaction independently created a
coercive atmosphere for the jury.
Id. Given the low coercive potential of the juror’s note, it was incumbent on the
trial court to give a neutral, even “bland,” instruction. The court followed the rule
in this case, so we cannot say the court’s answer was an abuse of its broad
discretion. Cf. Gray v. United States, 79 A.3d 326, 336-37 (D.C. 2013)
(concluding that where the jury’s note exhibited confusion, the trial court’s general
statements failed to bring adequate clarity). The court’s response to the juror’s
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note, in open court, was for the jury to resume deliberations, to recognize that
heated discussions during deliberations were natural, but also to emphasize the
need for civility and mutual respect. The trial court’s jury instruction was not
coercive.
In fact, the instruction reduced any coercive potential by reminding jurors to
respect each other’s viewpoints during deliberations and to focus on the evidence
presented. Contrary to Bost’s claim, an anti-deadlock instruction admonishing the
jury not to “surrender [their] honest conviction[s]” would have been premature as
there was no indication that the jury was deadlocked at the time of the note. We
have consistently cautioned that an anti-deadlock instruction should not “be used
prematurely or without evident cause,” and that an anti-deadlock instruction is
more of an “ultimate judicial attempt, not a preliminary attempt, to secure a
verdict.” Barbett v. United States, 54 A.3d 1241, 1245 (D.C. 2012) (citation and
internal quotation marks omitted). For the reasons stated, the trial court did not
abuse its discretion in refusing to grant a mistrial or to issue an anti-deadlock
instruction.
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V. Best’s Ineffective Assistance of Counsel Claim
The trial court sentenced Best to life imprisonment without release. During
the pendency of his direct appeal, Best filed a D.C. Code § 23-110 (2012 Repl.)
motion for a new trial alleging ineffective assistance of trial counsel. Specifically,
Best alleged that his trial counsel, Michael O’Keefe, Esq., 35 provided
constitutionally ineffective assistance by failing to file a motion to suppress Best’s
videotaped interrogation by MPD detectives. The videotape included a
conversation he had with his mother, Laverne Best, in which he may have
communicated, non-verbally, that he was culpable. Best claimed that the lead
detective, Detective Anthony Patterson, violated his Miranda rights by asking him
questions about the shootings after he had invoked his right to counsel. He also
claimed in his motion that Ms. Best’s subsequent conversation with him was the
“functional equivalent” of police interrogation.
Accordingly, Best’s motion argued that Mr. O’Keefe should have filed a
motion to suppress the video and Ms. Best’s derivative grand jury testimony
35
Michael O’Keefe was appointed as an Associate Judge on the Superior
Court of the District of Columbia in September 2013, following the conclusion of
his representation of Best. For purposes of this opinion, we will refer to Judge
O’Keefe as “Mr. O’Keefe.”
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regarding her conversation with Best, and that his failure to do so was not
harmless, because a motion to suppress would have been meritorious. The trial
court convened a hearing on the ineffective assistance of counsel claim and, upon
hearing the evidence, denied Best’s motion on the basis that (1) Mr. O’Keefe made
a strategic decision not to file a motion to suppress, (2) in any event, Ms. Best’s
conversation with Best was not the functional equivalent of interrogation and
therefore not subject to the strictures of Miranda, and, (3) even if the challenged
evidence should have been excluded, the additional evidence against Best was
overwhelming and therefore he suffered no prejudice from its admission. Best
filed a collateral appeal of the trial court’s denial of his motion, which we have
consolidated with his direct appeal and the direct appeals of his co-defendants.
A. Additional Factual Background
The footage of the police’s interrogation of Best is available to us on appeal.
On April 26, 2010, the United States Marshals Service arrested Best and brought
him before MPD Detectives Oliver Garvey and Anthony Patterson. The detectives
read him his rights and presented him with a PD-47 card, whereupon Best invoked
his right to silence and to an attorney. In response, Detective Garvey explained to
Best that they could no longer speak to him about the case. Detective Patterson
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asked Best whether he knew what he was being charged with, and Best replied
that, “The warrant said murder.” Detective Garvey told Best that he was charged
with five counts of first-degree murder, to which Best asked, “How you get five
counts of murder?” Because Best had already invoked his rights, however, the
detectives told him that they could not discuss the case with him any further, but
stated that, “In a few minutes if you feel comfortable enough, you can always ask
if you want to talk to us. But right now, we can’t talk to you because you already
said you don’t want to talk to us.” The detectives then left Best by himself in the
interrogation room for about thirty minutes.
Detective Patterson then returned to ask Best if he needed to use the
restroom. Best said he did and the detective escorted him to the restroom. This
fifteen-minute restroom break was not recorded on camera, and it was during this
break that Best claimed in his § 23-110 motion that Detective Patterson sought to
reinitiate a conversation with Best about the case, in violation of Miranda. Best
alleged that, as he was washing his hands, Detective Patterson approached him and
encouraged him to talk about the shootings, telling him something to the effect of,
“Come on man, let’s talk. I’m the head detective on the Alabama Avenue
shooting. I’ll tell you something, then you tell me something.” Best also claims
that Detective Patterson told him that he knew Best fired the shotgun on Alabama
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Avenue, but that he did not intend to hurt anyone, and that Simms was in police
custody and was already talking.
The police recording captured Best and Detective Patterson as they re-
entered the interrogation room. When Detective Patterson turned to leave, Best
stopped him and told the detective that he was willing to talk to him, and that it
could be recorded. Detective Patterson, assisted by Detective Susan Blue, then re-
informed Best of his Miranda rights, and Best waived his rights on the record. The
detectives interrogated Best for about three hours on his role in the shootings, but
Best repeatedly denied the accusations and did not give any inculpating statements.
The detectives then tried a different approach. After Best vocalized his
concern that his family had “turned their back” on him, Detective Blue confronted
Best regarding rumors that he was suicidal. Detective Blue asked, “Would it help
you any if we got your mother down here so you could talk to her?” Best
responded, “I do want to talk to my mom.” Detective Blue replied:
Okay. Because I don’t want your mother to, you know,
the last thing she pretty much remember her child saying
is he want to kill himself and you know you go away, and
God forbid, whatever because I’m telling you until your
heart feel better, you ain’t going to be better. Until you
put your heart in a better place you not going to be better.
Until you clear your conscience, and you know what? It
is what it is, God forgive me, whatever you got to say to
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make yourself get over that hurdle, until you do it, you’re
not going to feel better. You can sit here and listen to us
all day long. We can tell you the best advice we know,
but until you do the right thing yourself, you’re not going
to get no better, and I will go ahead and call your mother
personally. Does she know you got locked up? You
don’t even know. Okay. I’ll call her myself and tell her
that you’re here and see what we can do to get her down
here so you get a chance to see her, all right? But I want
you to really consider doing the right thing.
Best provided Detective Blue with his mother’s number and the Detective called
Ms. Best and told Best that she was on her way. Prior to Ms. Best’s arrival, Best
admitted that he had suicidal thoughts, and stated that his mother was the “one
person I know will never leave my side.”
Ms. Best arrived and had a brief one-on-one conversation with Best. She
asked if he was there “when they did that,” to which Best whispered something to
Ms. Best and directed his mother’s attention to the camera in the room. Detective
Blue then re-entered the room and asked Best “to help your mother understand
why you’re not doing the right thing.” Ms. Best told Detective Blue that she did
not care “what you put out there about him,” but also told Best not to cover for his
“so called” friends and to “clear” himself, stating, “If you didn’t do nothing, be a
man about it.” Ms. Best also told Best that the police had been searching through
her home. Detective Blue, likewise, told Best to cut his friends loose and to worry
about the “people who worry about you.”
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Detective Blue then gave Ms. Best and Best another two minutes of one-on-
one time. When Detective Blue left the room, Ms. Best told Best, “She’s right,
Jeff, I — you didn’t — you didn’t.” She also asked, “You didn’t hurt no one,
hmm, hmm, did you? Huh? So that’s true out there? Huh?” Best, in response to
this question, gestured with his head. Ms. Best then asked whether it was because
of Orlando’s shooting, at which point Best cried and asked for a hug. They hugged
and said they loved each other. Ms. Best then said, “[S]ee what Orlando, see what
he got you into” and Best said, “Mom. Mom.” After Ms. Best left, the detectives
continued to interview Best, but he continued to deny involvement in the
shootings. Accordingly, the only inculpating statement from the police video is the
head movement by Best in response to Ms. Best’s question as to whether what the
police were saying was “true out there.”
B. § 23-110 Hearing
The trial court conducted a § 23-110 hearing on August 20, 24, and 25,
2015, and ruled on September 1, 2015. Best’s sole witness was himself — he
testified that Detective Patterson engaged him in conversation about the shootings
during his bathroom break after he had already invoked his right to silence and
counsel. According to Best, Detective Patterson told him that he would “tell me
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something, that he wanted me to tell him something in return and then he told me
that I played a part [in] the Alabama Avenue shooting.” In response, Best told the
detective that he was willing to speak to him. As for his conversation with his
mother, Best admitted that he wanted to speak to his mother, but stated that he
believed the reason Detective Blue brought his mother to the room was, “To get
me to do the right thing. Basically [to] get me to confess or corroborate.” Best
also testified that he felt “upset, confused, — a lot of things” after Ms. Best
appeared to agree with Detective Blue’s assertion that he was involved in the
shooting, stating it felt, “Like my mother turned her back on me.”
As for Mr. O’Keefe’s knowledge of Best’s alleged conversation with
Detective Patterson during the bathroom break, Best explained that he did not
speak to Mr. O’Keefe about the incident prior to trial, and that he only informed
him that it had happened “after [he] got [his] mother[’s] grand jury statements.”
He knew that he “had to come up . . . with something to try to get this video out.”
Specifically, Best admitted that, with the help of a “jailhouse lawyer,” Thomas
Jones, they drafted a motion alleging that Detective Patterson had engaged in a
conversation with Best after he had already invoked his rights, and that this was a
violation of Miranda. Best then provided the motion to Mr. O’Keefe, but Mr.
O’Keefe did not present any arguments before the court regarding the motion.
105
The government called Mr. O’Keefe to the stand. He testified that, once the
government was permitted to use Ms. Best’s grand jury testimony, which the
government claimed showed that Best had confessed to Ms. Best, he thought the
best course of action was to show the video to the jury himself, “so they could see
that [Best was not confessing], and that her testimony is, in fact, misleading.”
Further, he explained that he read Best’s proposed motion to suppress, but was
immediately suspicious of it because it was “written in the third person . . . it talked
about ‘your client.’” Mr. O’Keefe also found it “very strange” that he “hadn’t
heard this fact before” after spending a lot of time with Best (“I went to the jail
many, many times.”) and talking about “every aspect” of his case. And that, “now
for the first time, almost two years after first getting involved in the case . . . there
is this conversation with Detective Patterson out in the hallway that was different
than what was represented originally when we went over the video.” Mr. O’Keefe
explained that “sometimes people in trial start to change their stories when they get
nervous” and “they start to make things up.” Accordingly, Mr. O’Keefe did not
credit the prepared motion and did not believe that he “could ethically advance this
argument that, in fact, something happened out there that” he did not believe
actually happened. The government also called Detective Patterson, who denied
initiating any substantive conversation with Best during the bathroom break. He
did admit, however, that he was not “100 percent” sure that absolutely no
106
conversation took place, but maintained that “whatever happened on the way back
was initiated by [Best].”
The trial court issued its oral findings on September 1 and denied Best’s
ineffective assistance claim, stating “it is clear to [the court] that Mr. O’Keefe’s
decision not to file a motion to suppress based on Miranda, was not deficient under
Strickland.” Accordingly, the trial court concluded that it “need not resolve” the
question of whether Detective Patterson attempted to re-initiate a conversation
with Best after he had invoked his rights, thereby violating his Miranda rights.
The court emphasized, however, that, “The fact that I have not resolved this issue
does not indicate that I believe a Miranda violation occurred, I am just not
deciding that issue.” The court credited Mr. O’Keefe’s testimony that Best had
initially told him that he had waived his rights in the hopes of getting information
from the police, and that Best only mentioned the bathroom encounter for the first
time two years after Mr. O’Keefe started his representation. The court also
credited Mr. O’Keefe’s testimony that he found the motion dubious because of the
lateness of the representation and because the note was written in the third person.
The court therefore found it “reasonable for Mr. O’Keefe to decide against filing a
motion to suppress based on a Miranda violation that he believed was fabricated
and that someone reasonably could believe was fabricated.” The court further
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observed that “Mr. O’Keefe provided excellent representation to [Best] throughout
this trial” and that “[t]his is not a situation where counsel did not know the law and
as a consequence did not file a motion to suppress based on Miranda and
Edwards.”36
Alternatively, the trial court concluded that the “meeting between [Best] and
his mother was not custodial interrogation for purposes of Miranda.” “Only state
action implicates a defendant’s rights under the Fifth Amendment.” Lastly, even
assuming deficient performance by Mr. O’Keefe, the court found that “[t]he case
against Mr. Best was so compelling that he would have been convicted without his
mother’s testimony about his statements and without the video tape of his meeting
with her.” The court pointed to the testimony of Simms, whom the court described
as “one of the best witnesses [the court] has observed in over 20 years on the
bench. His testimony in and of itself was powerful. He did not exaggerate. He
did not minimize his own role.” The court further noted that Simms’s testimony
was corroborated by other evidence, including, inter alia, a video of Best
unsuccessfully attempting to rent a minivan on the night of the South Capitol Street
36
In Edwards v. Arizona, 451 U.S. 477, 485-86 (1981), the Supreme Court
held that a defendant who invokes his Miranda right to counsel cannot be
reinterrogated without the presence of counsel unless the defendant initiates the
subsequent conversation.
108
murders, Best’s DNA being found on the jacket tossed by one of the men who
escaped from the minivan after the shooting on South Capitol Street, Salazar’s
testimony that Best had confessed to her of his involvement, and “very
incriminating” telephone records establishing the relationships between the various
appellants and suspicious calls made right before and right after the South Capitol
Street shootings. The court also noted the weakness of Best’s misidentification
argument, in light of the considerable incriminating evidence presented at trial.
This collateral appeal followed.
C. Applicable Legal Principles
Our standard of review of a trial court’s denial of an appellant’s ineffective
assistance of trial counsel claim is well established. “We accept the judge’s factual
findings unless they lack evidentiary support, but we review his or her legal
conclusions de novo.” Derrington v. United States, 681 A.2d 1125, 1132 (D.C.
1996) (citation, internal quotation marks, brackets, and italics omitted). Under the
two-part Strickland analysis, “[t]o prevail on his ineffective assistance of counsel
claim . . . , appellant must demonstrate [both] that his counsel’s performance was
constitutionally deficient, and that the deficient performance prejudiced his
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defense.” Otts v. United States, 952 A.2d 156, 164 (D.C. 2007) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)).
First, [t]o establish constitutionally deficient performance, appellant must
show that counsel’s “representation fell below an objective standard of
reasonableness.” Id. (quoting Strickland, supra, 466 U.S. at 688) (internal
quotation marks omitted). The proper measure of an attorney’s performance is
“reasonableness under prevailing professional norms.” Cosio v. United States, 927
A.2d 1106, 1123 (D.C. 2007) (en banc) (quoting Strickland, supra, 466 U.S. at
688). Trial counsel is “strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Id. (quoting Strickland, supra, 466 U.S. at 690). There are “countless
ways to provide effective assistance in any given case,” so “judicial scrutiny of
counsel’s performance must be highly deferential.” Id. (emphasis added) (quoting
Strickland, supra, 466 U.S. at 689). Further, “we must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Otts, supra, 952 A.2d 164 (citation and internal
quotation marks omitted). Of course, reasonable performance “demands
appropriate investigation and preparation by counsel.” Cosio, supra, 927 A.2d at
1123 (citation omitted). Accordingly, it would be “objectively unreasonable for
110
defense counsel to make an uninformed decision about an important matter without
justification for doing so.” Id.
Second, even if appellant establishes that trial counsel’s performance was
deficient, he must also prove that his case was prejudiced by the deficient
performance. Otts, supra, 952 A.2d at 164. “To establish prejudice, appellant
must show that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Id.
(quoting Strickland, supra, 466 U.S. at 694).
D. Analysis
Here, Best claims that counsel, Mr. O’Keefe, rendered ineffective assistance
when he failed to file a motion to suppress during the middle of trial in response to
Best’s new revelation that he was approached by Detective Patterson during the
bathroom break. “To succeed on an ineffectiveness claim grounded on counsel’s
failure to file a suppression motion, it is the movant’s burden to show that a [Fifth]
Amendment claim would have been successful.” (Ronald) Young v. United States,
56 A.3d 1184, 1193 (D.C. 2012) (citations omitted). “[W]e must give deference to
the trial court’s findings of fact as to the circumstances surrounding the appellant’s
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encounter with the police and uphold them unless they are clearly erroneous.” Id.
at 1194 (citation and internal quotation marks omitted).
The trial court in this case did not make a factual finding on whether
Detective Patterson actually initiated a conversation with Best off-camera during
the bathroom break after Best had invoked his right to silence and counsel, in
violation of Miranda. Best argues, however, that this court has the authority, for
the first time on appeal, to make that factual finding because the only evidence
presented points to the existence of such a conversation. However, “it is not our
function to decide issues of fact.” Evans v. United States, 122 A.3d 876, 884 (D.C.
2015). Further, contrary to Best’s claim, there was competing evidence on whether
the Detective initiated a conversation with Best; Best claimed it happened, but
Detective Patterson claimed that, at most, Best would have initiated the
conversation.
Regardless, although the trial court declined to make this factual finding, the
court at the very least agreed that it was reasonable for Mr. O’Keefe not to have
believed Best’s claim during the middle of trial that Detective Patterson sought to
reinitiate a conversation after Best had invoked his Miranda rights. We conclude
that the trial court did not err in concluding that Mr. O’Keefe’s decision not to file
112
a motion to suppress during the middle of trial did not fall “below an objective
standard of reasonableness.” Otts, supra, 952 A.2d at 164 (quoting Strickland,
supra, 466 U.S. at 688).
Preliminarily, we conclude that a motion to suppress the video and Ms.
Best’s grand jury testimony during the middle of trial would have been considered
waived by the trial court. “Objections to the admission of evidence are waived
when they are not raised in a pretrial motion to suppress the evidence, ‘unless
opportunity therefor did not exist or the defendant was not aware of the grounds
for the motion.’” Simmons v. United States, 999 A.2d 898, 902 (D.C. 2010)
(emphasis added) (citation omitted). Here, by Best’s own admission during the
§ 23-110 hearing, he did not inform Mr. O’Keefe of the bathroom conversation
until after trial had commenced, even though he obviously was “aware of the
grounds for the motion.” Id. (citation and internal quotation marks omitted).
Accordingly, a motion to suppress during the middle of the trial based on Best’s
new claim would have been considered waived and unsuccessful. Again, “it is the
movant’s burden to show that a [Fifth] Amendment claim would have been
successful.” (Ronald) Young, supra, 56 A.3d at 1193.
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Even setting aside the procedural bar, however, Best cannot demonstrate that
Mr. O’Keefe’s refusal to file a motion to suppress was unreasonable. This was not
a case where counsel made “an uninformed decision about an important matter
without justification for doing so.” Cosio, supra, 927 A.2d at 1123. On the
contrary, Mr. O’Keefe explained in great detail why he declined to go forward with
Best’s new Miranda claim. He explained that he had worked with Best for about
two years up to that point, and that Best had never once mentioned a bathroom
conversation with Detective Patterson. Further, the “motion” that Best presented
to Mr. O’Keefe was written in the third person and was of dubious nature. Mr.
O’Keefe also explained that it was common for defendants to become nervous as
the trial grows closer and to make up new allegations. In addition, no police
recording shows the existence of this off-camera conversation. Taken together, it
was reasonable for Mr. O’Keefe, a seasoned attorney who had worked with Best
for two years up to that point, to have believed that the allegations within Best’s
pro se motion were not true. See Tibbs v. United States, 628 A.2d 638, 641 (D.C.
1993) (“We hold . . . that as a matter of law an attorney is not ineffective for
refusing to present testimony which the attorney knows to be false.”).
We also agree with the trial court that a motion to suppress the video and
Ms. Best’s grand jury testimony would have been futile. The only potentially
114
inculpating gesture by Best (the head nod after being questioned by his mother)
was not the product of custodial interrogation, and therefore not subject to the
strictures of Miranda. “Only ‘state action’ implicates a defendant’s rights under
the Fifth Amendment.” Graham v. United States, 950 A.2d 717, 732 (D.C. 2008).
Accordingly, “the Fifth Amendment privilege is not concerned with moral and
psychological pressures to confess emanating from sources other than official
concern.” Id. (citations and internal quotation marks omitted). Further, it does not
matter that the police knew there was a “possibility” that an outside source, such as
a parent or spouse, may lead a suspect to incriminate oneself. Id. at 733. “Officers
do not interrogate a suspect simply by hoping that he will incriminate himself.” Id.
(citations and internal quotation marks omitted).
Here, the only potentially incriminating gesture by Best emanated from his
two-minute one-on-one conversation with his mother, whom he wanted to come
see him at the police station. He also knew that the conversation with his mother
was not private and was being recorded, as evidenced by his gestures to his mother
earlier in the video. Accordingly, any inculpating gestures he made in response to
his mother’s questioning about whether he was involved came from “moral and
psychological pressures” outside of police action, and thus not subject to Fifth
115
Amendment protections. Id. at 732. Whether Detective Blue may have hoped or
even wished that speaking with his mother would make Best confess is irrelevant.37
Further, contrary to Best’s claim, Ms. Best cannot be considered a state actor
at the time she spoke with Best. “This court has held that, in determining whether
the conduct of third parties is attributable to the police for purposes of Miranda, we
must focus on how a reasonable person in the suspect’s position would perceive
the situation.” Broom v. United States, 118 A.3d 207, 215 (D.C. 2015) (citation
omitted). Here, a reasonable person could not have believed that Ms. Best was
working for the police. First, Best stated “I do want to talk to my mom” and gave
the police Ms. Best’s number, so that she could come down to the police station.
Second, Ms. Best was acting “on her own initiative” in her questioning of Best. Id.
Third, Best only made the arguably inculpating gestures when he was alone with
his mother, away from the police or any alleged state pressure. Best then cried and
hugged his mother, and they said they loved each other. Taken together, none of
37
This case is similar to Graham, where the defendant, after invoking his
right to counsel, spoke privately to his mother and after a forty-five minute
conversation, confessed to murder. 950 A.2d at 725-26.
116
these circumstances can lead us to conclude that his mother can be considered a
state actor intentionally placed in the interrogation room to coerce a confession.38
VI. Conclusion
Based on the abovementioned reasons, the judgments of conviction by the
Superior Court are
Affirmed.
38
Because we conclude on three individual bases that the motion to
suppress would have failed, we need not consider the prejudice prong of
Strickland. We do note, however, that the evidence against Best was substantial as
recited by the trial court in its findings.