DEANGELO CODERRO TERRY & BILLY A. ROBIN v. UNITED STATES ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 12-CF-802 & 12-CF-925
DEANGELO CODERRO TERRY & BILLY A. ROBIN, APPELLANTS,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(CF2-11468-09 & CF2-11466-09)
(Hon. Ann O’Regan Keary, Trial Judge)
(Argued February 19, 2014 Second Amended Opinion June 5, 2015)
Jonathan S. Zucker, with whom Patricia Daus was on the brief, for appellant
DeAngelo Coderro Terry.
Benjamin Brooks for appellant Billy A. Robin.
David P. Saybolt, Assistant United States Attorney, with whom Ronald C.
Machen Jr, United States Attorney at the time the brief was filed, and Elizabeth

This opinion is amended to revise footnote 10 on page 48 of the first
amended opinion issued on May 11, 2015, and to make a non-substantive correction.
The matter was initially decided on April 30, 2015, and the original opinion was
issued on that date. Both the April 30, 2015, and the May 11, 2015, versions of this
opinion have been withdrawn by order of the court, issued on June 5, 2015, and both
have been replaced by the opinion herein.
2
Trosman, John P. Mannarino, Maia Luckner Miller, and Suzanne Clement Libby,
Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and RUIZ,
Senior Judge.
WASHINGTON, Chief Judge: Appellants DeAngelo Coderro Terry (“Terry”)
and Billy A. Robin (“Robin”) appeal from their convictions for four counts of
aggravated assault while armed (“AAWA”). 1 Terry also appeals from his
convictions for four counts of possession of a firearm during a crime of violence
(“PFCV”).2 Appellants’ convictions stem from a shooting that occurred on May
1
D.C. Code §§ 22-404.01, -4502 (2012 Repl.). Both appellants were
additionally charged with conspiracy (D.C. Code § 22-1805a (2012 Repl.)), four
counts of assault with intent to kill while armed (“AWIKWA”) (D.C. Code §§
22-405, -4502 (2012 Repl.)), and eight corresponding counts of possession of a
firearm during a crime of violence (“PFCV”) (D.C. Code § 22-4504 (b) (2012
Repl.)). The jury was unable to reach a verdict on the conspiracy count and the
AWIKWA and PFCV counts as to victim Wingard.
2
D.C. Code § 22-4504 (b) (2012 Repl.). Terry was additionally charged
with and convicted of unlawful possession of a firearm (“UF”) (D.C. Code §
22-4503 (a)(1) (2012 Repl.)) and carrying a pistol without a license (“CPWL”) (D.C.
Code § 22-4504 (a) (2012 Repl.)). The jury acquitted Terry of the other three
AWIKWA and corresponding PFCV counts (as to Washington, Williams, and
Clipper). Robin was additionally charged with and convicted of unauthorized use
of a vehicle (“UUV”) (D.C. Code § 22-3215 (2012 Repl.)), and fleeing a law
enforcement officer (D.C. Code § 50-2201.01 (2012 Repl.)), and he pleaded guilty
to offenses committed during release (D.C. Code § 23-1328 (a)(1) (2012 Repl.)) at
the beginning of trial. At trial, the government dismissed three of Robin’s
AWIKWA and corresponding PFCV counts (as to Washington, Williams, and
Clipper). The jury was unable to reach a verdict as to Robin’s PFCV count for
AAWA (as to Wingard), such that Robin was not convicted of any PFCV counts.
3
19, 2009, around 4:30 p.m., on North Capitol Street in Northwest Washington, D.C.,
during which Jameeka Washington (“Washington”), Chaquon Wingard (“Kwame
Wingard”), Antione Clipper (“Clipper”), and Tyrique Williams (“Williams”) were
shot. Both appellants argue that there is insufficient evidence to support the
“serious bodily injury” element of two of their AAWA convictions (with respect to
victims Clipper and Williams) and contend that they were prejudiced by the
government’s suppression of Brady material that was not turned over until the
beginning of trial. Both appellants also argue that the trial court abused its
discretion in admitting two specific pieces of testimony, the probative value of
which was substantially outweighed by the danger of unfair prejudice. Separately,
Robin contends that there was insufficient evidence to support the “intent” element
for all four of his AAWA convictions, to the extent that he was convicted under an
accomplice liability theory, and he also argues that certain inculpatory statements
that Terry made to the government’s cooperating witness were improperly admitted
against him. Finally, Terry argues that his four convictions for PFCV should merge
into one. We affirm in part and remand in part.
I. Facts
On May 19, 2009, around 4:00 p.m., victims Washington, Wingard, Clipper,
4
and Williams were standing with a group of friends on North Capitol Street between
R Street and Randolph Place, N.W. Shortly after 4:00 p.m., Clipper crossed North
Capitol Street to go to the liquor store on the southeast corner of North Capitol and R
Streets. When he exited the store, he saw Wingard standing in front of a carryout
store on the northeast corner of North Capitol and R Streets. He observed Terry,
driving a gray Camry with two or three other passengers, go north on North Capitol
Street, turn right onto R Street, where Wingard was standing, and stop at the light on
Lincoln Road, close to the carryout. Clipper saw Wingard staring at the car. Both
men then returned to their group.
Shortly thereafter, a tan Explorer driving south on North Capitol Street, which
contained two males and two females, passed the group. One of the females,
“Rakiya,” stuck her head out the window, said “fuck you[,] Jameeka,” and gave her
the finger. Washington laughed it off, explaining at trial that she and Rakiya had
previously been in fist-fights over a boy named Quinton, but that she had not seen
Rakiya in a year and did not think they were still in a fight.
At approximately 4:20 p.m., a black male walked southbound on North
Capitol Street toward Washington’s group. He pulled a black ski mask over his
face with one hand as he walked, and raised a gun with his other. When the shooter
5
was about fifty feet from the group, he fired a volley of about ten shots. Clipper
was hit in the leg but was able to hop to the median strip in North Capitol Street
where he collapsed. Another member of the group arched his back as though he
was hit. The shooter then took several “deliberate” steps toward the group and fired
a second volley of shots.3 When he was finished, the shooter ran back toward
Randolph Place.
Washington was talking on her cell phone when the first volley of shots was
fired. She returned to her conversation, heard more “pops,” then turned around and
saw everyone running away. Washington ran towards her car on R Street to get
away, but was shot four times—in the chest, wrist, and ankle. Wingard, who was
near Washington, tried to move both of them out of the shooter’s way. Wingard
was shot three times in the forehead. After the shooting, Washington collapsed
near Wingard in front of the church on the northwest corner of North Capitol and R
Streets. Clipper had collapsed in the median; he had been shot in the left shin and
the left foot, and the bullet to his left shin had broken his fibula or tibia.4 Williams
collapsed in front of the carryout with two gunshot wounds to his left forearm and
3
Four eyewitnesses described hearing two separate sets of shots with a
pause in between. Only Clipper did not think there was a break in the shots.
4
It is unclear from the transcript which bone was broken.
6
two to his chest, near his collarbone. Fifteen 9 mm shell casings, all fired from the
same gun, were later recovered from the scene.
Three Metropolitan Police Department (“MPD”) officers, Francisco
Montano, Christopher Cartwright, and Brian Hollan, were executing a search
warrant in an unrelated matter one block north of the scene when they heard the
gunshots on North Capitol Street. Officer Montano ran out and saw Ronald Taylor,
who was napping in his truck on Randolph Place, when the shooting occurred,
pointing “hysterically” at a red van that was heading west down Randolph Place
towards First Street, N.W. Taylor told Officer Montano that the van had just been
involved in the shooting. Meanwhile, Officers Cartwright and Hollan arrived in an
unmarked police car while the van was still on the block and a chase ensued. The
van turned right onto First Street heading north, and though the officers turned on
their emergency equipment, the van did not stop. The chase continued for twenty to
twenty-five minutes, and ultimately involved over twenty police cars. During the
chase, the police lost sight of the van for a matter of seconds when it went behind the
attendant’s booth at a Chevron gas station at 6250 Belcrest Road in Maryland.
Police described the van as driving recklessly, at highway speeds through residential
streets, sometimes driving into oncoming traffic.
7
When the van finally crashed into several parked cars in Hyattsville,
Maryland, police found appellant Robin in the driver’s seat, Terry in the passenger
seat, and co-defendant Deandre Banks (“Banks”) 5 in the backseat. As police
pulled Robin from the car, Robin tossed a black knit ski mask under the van. DNA
analysis revealed that there was genetic material from three or more individuals on
the ski mask, and Robin and Terry could not be excluded as the source of that
material—a random match probability for both men was one out of 25,000 in the
African-American community. The van was a stolen Dodge Caravan. After the
three men were arrested, police recovered a second black knit ski mask and hat, as
well as a black silk hat, from behind the attendant’s booth at the Chevron gas station.
DNA analysis of the black knit hat and ski mask matched Terry, and DNA on the
black silk hat matched Banks. Police never recovered the gun used in the shooting.
Police photographed Terry, Robin, and Banks to document what each was
wearing that day. All three photographs were presented as exhibits at trial. Terry
was wearing a black T-shirt and light blue jeans. Terry’s blue jeans had a pattern
embroidered on the seat. Terry was a 5’11” tall, medium-complected black male
with shoulder-length dreadlocks or braids and a light mustache. Robin was
5
Banks was tried jointly with Terry and Robin, but the jury hung as to all
counts against him.
8
wearing a green long-sleeved dress shirt and had a bandage on his face. He was a
black male with a medium complexion, a stocky build, short hair, and a mustache.
Banks was wearing a black T-shirt with white writing that was turned inside out, and
dark jeans. Banks was 6’3” tall with short hair, a short beard, and a mustache. He
was also a black male with a medium complexion.
At trial, victims Washington, Wingard, and Clipper testified about the
shooting and the injuries they suffered. Williams did not testify, though the
government called the physician who treated him at the hospital to testify to the
extent of his injuries. The jury also heard testimony from several officers involved
in the car chase, four eyewitnesses to the shooting, a cooperating government
witness, Keith Daniels (“Daniels”), to whom Terry had allegedly made inculpatory
statements in the days after the shooting, and two defense witnesses called to
impeach Daniels’ testimony. The government also presented physical evidence in
the form of the DNA analyses that linked Terry, Robin, and Banks to the ski masks
and black hat in the van.
In particular, Daniels, who was Terry’s next door neighbor, testified that
several days after the shooting Terry came over to his house and told him, in the
presence of his nephews, that not only had he been involved in the shooting, but also
9
why he thought he might get away with it. Daniels was impeached with a
cooperation agreement that he entered into in this case, his prior convictions for
three different assaults, including AWIKWA, and his admission to having
previously cooperated with the government in another homicide case involving
Curtis Bunn, a witness for the defense, in this case.
II. Sufficiency of the Evidence
A. Sufficiency of the Evidence with Respect to Robin’s AAWA Convictions
as an Aider and Abettor
This court has previously clarified that in order to prove a defendant guilty of
AAWA under an aiding and abetting theory, the government must prove beyond a
reasonable doubt that the defendant had the requisite mens rea to commit the crime.
[W]hen the government prosecutes a defendant under an
aiding and abetting theory of criminal liability, in addition
to proving that the aider and abettor “participated” in the
assault, the government must prove also that the aider and
abettor himself intended to cause serious bodily injury or
acted with extreme indifference to human life because he
knew either that the principal would commit an assault
with such intent, or that the principal would intentionally
engage in an assaultive act that actually created a grave
risk of serious bodily injury.
Perry v. United States, 36 A.3d 799, 817 (D.C. 2011).
10
This court has dealt with the issue of whether there was sufficient evidence
from which a jury could conclude that a defendant had the requisite intent to have
“aided and abetted” the principal perpetrator of a crime on several occasions. For
example, we have found insufficient evidence to convict a defendant as an aider and
abettor after the defendant testified that he did not know that the principal had just
committed a robbery when there was evidence that after he picked the principal up in
his car, the defendant drove away at a normal speed, pulled over when the police
signaled, and cooperated with police. See Clark v. United States, 418 A.2d 1059,
1061-62 (D.C. 1980). We also held that there was insufficient evidence to convict
the defendant as an aider and abettor in Quarles v. United States, 308 A.2d 773, 774
(D.C. 1973), where the defendant was present on a bus when the principal
committed petit larceny, remained on the bus after the theft to cooperate with police,
and was not found to have the victim’s wallet on his person. In Quarles, there was
also no evidence of any communication or connection between the defendant and
the thief—they were never seen together before the theft or connected in any other
way. 308 A.2d at 775.
On the other hand, this court found that there was sufficient evidence from
which a reasonable juror could convict the defendant of aiding and abetting an
11
armed robbery in Carter v. United States, 957 A.2d 9 (D.C. 2008). In that case, the
evidence showed that at the time of the incident, a gray Mazda with distinctive tinted
windows was parked on the street, which neighbors found unusual as generally only
residents parked on the block and they had never seen the car before. 957 A.2d at 9.
A gunshot went off, the gray Mazda pulled away, and a voice from the direction of
the vehicle was heard saying, “Go man go.” Id. The shooter jogged in the same
direction behind the Mazda, and a short time later, Carter was seen driving the
Mazda with the shooter as a passenger. Id. When police began to pursue the car,
Carter began driving erratically and at a high rate of speed, and when the police
finally caught up with the Mazda, Carter fled the vehicle before being apprehended.
Id. The gun that the shooter used in the assault was found to the left of Carter’s
(driver’s) seat. Id.Although the evidence was “not overwhelming,” this court concluded that it
was sufficient to support an inference that Carter participated in the crime from
beginning to end and took actions in an effort to make it succeed. Id. at 18.
Specifically, the court determined that a jury could reasonably infer: (1) that Carter
was in the gray Mazda while it was parked on the street; (2) that his intention was to
wait for Tucker to commit an assault and robbery and then drive him away once the
act was complete; (3) that Carter signaled to Tucker about fleeing (the voice saying
12
“Go man go”); (4) that Carter tried to evade the police out of consciousness of guilt;
(5) that the gun found to the left of the driver’s seat was used in the assault and that it
belonged to Carter; and (6) that Carter supplied Tucker with the gun to help him
carry out the crime. Id. at 17-18.
Here, like in Carter, we are satisfied that the evidence supports an inference
that Robin participated in the crime from the beginning and took steps to make it
succeed. First, the jury could reasonably infer that Robin was waiting in the van
with an intention to drive Terry away after the successful completion of the crime
based on the fact that he was sitting in a stolen van in the vicinity at the time of the
shooting. Unlike in Quarles, Robin and Terry were known to be connected, as
evidenced by the fact that the two men were seen together on the morning of the
shooting. Additionally, unlike in Clark and Quarles, here the jury could reasonably
infer that Robin intended to aid Terry in the successful completion of the assault
because rather than cooperating with police, Robin led over twenty police cars on a
dangerous, high-speed chase that lasted over twenty minutes. Finally, the jury
could reasonably infer that Robin’s attempt to dispose of the extra ski masks and
hats (at least one of which featured Robin’s DNA) was evidence that the men were
involved in the crime together from the outset. Because these are reasonable
inferences that can be drawn from the evidence presented in this case, we are
13
satisfied that sufficient evidence was presented that Robin possessed the requisite
mens rea to sustain his conviction as an aider and abettor.
B. Sufficiency of the Evidence of Serious Injury with Respect to
Appellants’ AAWA Convictions
Both Terry and Robin argue that there was insufficient evidence to permit a
reasonable trier of fact to find that victims Clipper and Williams suffered serious
bodily injuries, an essential element of AAWA. See, e.g., Riddick v. United States,
806 A.2d 631, 639 (D.C. 2002). We review a challenge for sufficiency of the
evidence “in the light most favorable to the government, giving full play to the right
of the jury to determine credibility, weigh the evidence, and draw justifiable
inferences of fact, and making no distinction between direct and circumstantial
evidence.” Gathy v. United States, 754 A.2d 912, 917 (D.C. 2000) (citations and
internal quotation marks omitted). Thus, “[i]t is only where there is no evidence
upon which a reasonable mind might fairly conclude guilt beyond a reasonable
doubt that the trial court may properly take the case from the jury.” Id. (citations
and internal quotation marks omitted).
This court has defined “serious bodily injury” as an “injury that involves a
14
substantial risk of death, unconsciousness, extreme physical pain, protracted and
obvious disfigurement, or loss or impairment of a bodily member or function.”
Jackson v. United States, 970 A.2d 277, 279 (D.C. 2009) (citations omitted);
Bolanos v. United States, 938 A.2d 672, 677 (D.C. 2007). This court has
recognized “the high threshold of injury” that “the legislature intended in fashioning
a crime that increases twenty-fold the maximum prison term for simple assault.”
Bolanos, 938 A.2d at 677-78 (quoting Swinton v. United States, 902 A.2d 772, 775
(D.C. 2006) (internal citation omitted)). While “injuries such as knife or gunshot
wounds are not per se serious bodily injury,” Scott v. United States, 954 A.2d 1037,
1046 (D.C. 2008) (citations and internal quotation marks omitted), the jury can use
evidence of such injuries plus other evidence to infer that the victim suffered
“serious bodily injury.” See, e.g., Jenkins v. United States, 877 A.2d 1062, 1071
(D.C. 2005) (sufficient evidence from which jury could find that victim suffered
“serious bodily injury” where victim sustained multiple deep stab wounds to the
chest, stomach, and arms, inflicted with a seven- or eight-inch blade).
C. Extreme Physical Pain: Clipper and Williams
The level of extreme physical pain necessary for a jury to find that a victim
suffered serious bodily injury “must be exceptionally severe if not unbearable.”
15
Swinton, 902 A.2d at 777. There is no requirement that a victim testify to having
experienced extreme pain for a jury to so find; rather, the important consideration is
whether “a reasonable juror may be able to infer that pain was extreme from the
nature of the injuries and the victim’s reaction to them.” Bolanos, 938 A.2d at 681(citations omitted). Thus, we have held that there was sufficient evidence for the
jury to conclude that a stabbing victim suffered extreme pain where: (1) the victim
described that she had “felt the knife, that [i]t was burning . . . [i]t was very painful”;
(2) testimony from her physician indicated that she was in pain when she came to the
hospital, that the pain was “significant,” and that the injury required immediate
surgery because “the knife had gone through [her] kidney”; (3) the surgery resulted
in a six- to eleven-inch scar on the victim’s stomach; and (4) due to complications
resulting from the first surgery, the victim was required to undergo a second surgery.
See Anderson v. United States, 857 A.2d 451, 464 (D.C. 2004). On the other hand,
we have held that there was insufficient evidence for a jury to conclude that the
victim suffered extreme pain where the victim “stood in place for a while after he
was shot, did not undergo surgery in connection with his injury, and was able to
travel to El Salvador five days after the shooting.” Castillo-Campos v. United
States, 987 A.2d 476, 487 (D.C. 2010).
This court distinguished between situations in which there was sufficient
16
evidence from which a jury could conclude that the victim suffered extreme pain for
purposes of finding “serious bodily injury” and those in which the evidence was
insufficient for that inference in Bolanos. In that case, three victims (Mejia,
Rodriguez, and Gonzalez) were stabbed multiple times after a fight broke out at a
playground near their high school. 938 A.2d at 676-77. This court explained that
there was sufficient evidence from which a jury could infer that victim Mejia
suffered extreme pain because he testified that after being stabbed he could not
breathe, his muscles hurt, his chest was in pain, and he kept thinking he was going to
die. Id. at 682. His medical records, which indicated that upon arrival to the
hospital he complained of shortness of breath related to pain and was prescribed pain
medicine while hospitalized and also upon discharge, corroborated his testimony.
Id. On the other hand, there was evidence that after being stabbed, victims
Rodriguez and Gonzalez were able to walk with the assistance of a nurse and a
security guard, respectively. Id. Neither man testified to how much pain he
experienced. Id. While a detective testified at trial that both Rodriguez and
Gonzalez were in pain and were given Percocet, this court concluded that his
testimony was not sufficient to allow a jury to reasonably infer that Rodriguez and
Gonzalez suffered extreme pain due to the stabbing. Id.Turning first to Clipper, the record indicates that he was shot in the left leg,
17
close to his shin or fibula, and that another bullet grazed his left foot. Clipper
testified that he “knew his bone was broke[n]” and described his pain as a “7 or 6”
out of ten. After being shot, he was able to hop on his right leg to the median in the
center of North Capitol Street. Clipper required urgent medical treatment for his
broken leg and was given intravenous morphine, though he was discharged from the
hospital the same night. Though he had a broken fibula or tibia, no surgery was
required. Clipper was prescribed Percocet, Tylenol 3, and medication to treat an
infection, but he took only the infection medication. He was in a cast and used
crutches for a month to heal his broken leg, and was on bed rest for an unknown
amount of time afterwards to heal. There were no medical records introduced
regarding Clipper’s injuries.
Looking at the nature and extent of the injuries described in the record and the
high threshold of injury required for AAWA, we are satisfied that a reasonable juror
could not find that Clipper suffered the level of pain necessary to find that he
suffered a serious bodily injury. Unlike in Anderson, where the victim testified that
her stab wounds were very painful, and Bolanos, where victim Mejia testified that
after being stabbed he could not breathe, his muscles hurt, his chest was in pain, and
he kept thinking he was going to die, all of which was corroborated by his medical
records, there is no such evidence that Clipper suffered similar pain here. Instead,
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Clipper testified that his pain level was only a seven or a six out of ten, and though he
was prescribed additional pain medication, he never took it. Furthermore, unlike in
Anderson, no surgery was required to mend Clipper’s broken leg, and while it is not
clear whether Clipper could walk like victims Rodriguez and Gonzalez in the
Bolanos case, he was at least able to hop on his uninjured leg into the safety of the
median. Under these circumstances, especially considering that Clipper’s own
testimony was that his pain level was only a seven or six out of ten and that he did
not continue to take pain medication after being released from the hospital, a
reasonable jury could not find that he suffered the level of extreme pain necessary to
find “serious bodily injury.”
Victim Williams did not testify at trial, but evidence of the nature and extent
of his injuries was presented by his treating physician, Dr. Philip Fidler. The record
indicates that Williams was shot four times, twice below the right shoulder blade
(near the collarbone), and twice to the left forearm. Williams was rushed to the
hospital and given intravenous pain medication. Dr. Fidler testified that Williams
was “reasonably stable” upon arrival, with minor heart rate and breathing issues, and
was complaining of pain, though he did not testify as to how much. The two
gunshot wounds to his forearm did not show signs of having injured any major blood
vessels and his forearm was moving normally. The gunshots to the area below his
19
right shoulder blade were “through and through,” meaning that the bullets passed
right through his shoulder. Williams had a limited ability to shrug his right
shoulder and some weakness, which was judged to be secondary to pain. Dr. Fidler
testified that Williams did not appear to have a life-threatening injury when he was
brought in, and he was discharged the next morning. Dr. Fidler also testified that he
expected Williams to make a “functional recovery,” but noted there was a possibility
that he would have some ongoing nerve pain.
Under these circumstances, no reasonable juror could have concluded that
Williams suffered the level of extreme pain necessary for “serious bodily injury.”
First, no evidence was introduced to suggest how much pain Williams experienced;
rather, like in Bolanos where there was only the detective’s assertion that Rodriguez
and Gonzalez were in pain, here there was only Dr. Fidler’s general assertion that
Williams was complaining of pain when he arrived at the hospital. Williams did
not require surgery and was released from the hospital the morning after he was
admitted. There was no evidence in the record that Williams could not walk or was
otherwise immobilized with pain, and no evidence that he was prescribed and/or
took pain medication upon release from the hospital. Therefore, there was
insufficient evidence in the record from which a reasonable juror could conclude
20
that Williams suffered the level of extreme pain required to prove “serious bodily
injury.”
D. Substantial Risk of Death: Williams
The government argues that, alternatively, the jury could have found that
Williams suffered “serious bodily injury” because the gunshot wounds to the area
below his shoulder blade created a substantial risk of death. Specifically, the
government argues that while Williams’ injuries were described as not being
life-threatening once he was diagnosed at the hospital, that assessment “made in
hindsight, and with the benefit of prompt emergency care, does not obviate the
substantial risk of death that Williams faced . . . .” While we understand the
government’s argument in this regard and have said that the severity of a victim’s
injuries should not be understated due to the fact that he was fortunate enough to
receive proper medical treatment, see Freeman v. United States, 912 A.2d 1213,
1222 (D.C. 2006), this court has always required some evidence that a victim’s
injuries created a substantial risk of death before finding that the victim suffered
“serious bodily injury” under this theory. See, e.g., id. (medical testimony
established that the victim experienced substantial risk of death for purposes of
“serious bodily injury” where he suffered three gunshot wounds, one of which broke
21
a vertebra, lodged inside his body, and caused the loss of sensation in his lower right
leg and ankle, the result of which put him at risk of paralysis and also could have
resulted in a major hemorrhage leading to death given its proximity to his aorta);
Zeledon v. United States, 770 A.2d 972, 974 (D.C. 2001) (medical testimony that the
arterial bleeding and broken collarbone victim suffered was severe enough to have
resulted in death if untreated was sufficient to constitute substantial risk of death).
Not only was there a lack of any evidence in this case that Williams was at a
substantial risk of death, but in fact, Dr. Fidler testified that upon arrival at the
hospital, Williams did not appear to have a life-threatening injury and he was
discharged the next morning. As such, we are unpersuaded by the government’s
argument that we can affirm appellants’ convictions on this alternative theory.
Although we have concluded that the evidence is insufficient to support
appellants’ convictions for AAWA with respect to Clipper and Williams and
therefore those convictions must be vacated, the evidence is more than sufficient to
support a finding that appellants committed the lesser-included offense of Assault
with Significant Bodily Injury. See Collins v. United States, 73 A.3d 974, 985
(D.C. 2013). As the jury found appellants guilty of AAWA, it necessarily would
have had to find them guilty of the lesser-included offense. For that reason, we
remand the case to the trial court to vacate appellants’ convictions for AAWA in
22
connection with the shootings of Clipper and Williams and instead enter judgments
of convictions for the lesser-included offense of Assault with Significant Bodily
Injury and resentence appellants accordingly.
III. Alleged Brady Violation
In August 2009, the defense requested that the government turn over all
Brady 6 material. On December 7, 2009, the original prosecutor provided the
defense with a set of heavily redacted handwritten notes that Detective Michael
Murphy had made based on his interview of a witness (later determined to be
Tyrique Williams). The only information that was not redacted was:
B/M Dark 5’10” (skinny)
Black shirt light blue
pants or shorts.
Small dreads w/ black hat.
Could see the shooters face.
Subsequently, on February 25, 2011, a prosecutor to whom the case had been
reassigned provided the defense with a “voluminous” letter pursuant to the
government’s disclosure obligations which included, in relevant part, the following
6
Brady v. Maryland, 373 U.S. 83 (1963).
23
information:
Victim Williams—Victim Williams provided the
following information to an officer while he was at the
hospital: a four-door tan truck, like an Explorer, with two
black females, who had blondish hair, and two black
males, the driver got out of the truck. Victim Williams
also described the shooter as approximately 5’9”- 6’0,
skinny, black male, with dark skin, short dreads, wearing a
black t-shirt, blue shorts, and a black baseball cap, goatee,
aged 22-23, used what looked like a black, “small” gun,
likely .45 caliber. Please note that the government
provided this information to you in its December 7, 2009,
disclosure. Victim Williams indicated that he was able to
see the shooter’s face. At this time, the government is
seeking to re-interview victim Williams to clarify whether
the description of the shooter relates to the description of
the individuals in the tan truck.
The trial in this case began on January 12, 2012, and after the jury was sworn,
the government provided appellants with a Jencks 7 package that included the
entirety of Detective Murphy’s notes. According to appellants, the unredacted
notes revealed two key pieces of evidence that the defense contends were not
previously disclosed in the initial redacted notes or in the February 25, 2011, letter:
(1) that Williams had identified the driver of the tan Explorer as the shooter, and (2)
7
Jencks Act, 18 U.S.C. § 3500 (2001) (requiring that the government
disclose to the defense statements in its possession made by any of the witnesses that
will testify at trial). The Jencks Act requires disclosure “[a]fter a witness called by
the United States has testified on direct examination.” Id. § 3500 (b).
24
that a female in the car, later determined to be Rakiya, had given the group the
finger. The defense argued that failing to timely disclose this information
constituted a Brady violation and that it was prejudiced because had this information
been disclosed sooner, the defense could have: (1) investigated who was in the tan
Explorer in an attempt to assert a third-party perpetrator theory at trial, and (2)
challenged the thoroughness of the police investigation, including questioning why
the police never made any attempt to locate and interview the individuals from the
tan Explorer given that Williams had identified the driver as being the shooter. In
ruling on this issue, the trial court found, and the government concedes, that the
information contained in Detective Murphy’s notes was exculpatory or impeaching
evidence and should have been disclosed.8 However, the trial judge also found that
the evidence contained in Detective Murphy’s notes was not suppressed because the
defense had the ability to use it effectively at trial and that the defense was not
prejudiced by the arguably late disclosure. For these reasons, the trial court found
that the failure to disclose Detective Murphy’s notes in their entirety did not
8
The government offers no explanation as to why all of the exculpatory
information was not turned over when requested and why it was withheld until trial.
As this court has repeatedly said, “a prosecutor’s timely disclosure obligation with
respect to Brady material cannot be overemphasized and the practice of delayed
production must be disapproved and discouraged.” Mackabee v. United States, 29
A.3d 952, 956 (D.C. 2011) (quoting Curry v. United States, 658 A.2d 193, 197 (D.C.
1995)).
25
constitute a Brady violation. Appellants take exception to that ruling.
There are three elements to a Brady violation: “(1) the evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; (2) that evidence must have been suppressed by the [government],
either willfully or inadvertently; and (3) prejudice must have ensued,” which means
that the evidence suppressed must have been material. Miller v. United States, 14
A.3d 1094, 1109 (D.C. 2011) (quoting Strickler v. Greene, 527 U.S. 263, 281-82
(1999)). “If the prosecution has failed to make timely disclosure of exculpatory
evidence, and if there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different, then the
defendant’s conviction cannot stand.” Id. (citations and internal quotation marks
omitted).
In Miller, this court explained that a Brady violation is a mixed question of
law and fact. The trial court’s legal conclusions are reviewed de novo and its
factual determinations are reviewed under a clearly erroneous standard of review.
Id. at 1120; see also Mackabee, 29 A.3d at 959. In determining whether the trial
court’s decision is entitled to any particular level of deference this court considers,
among other things, “whether the issue to be decided more closely resembles one of
26
fact or of law, and whether the trial court or the appellate court is in a position to
render the decision with the higher degree of accuracy.” Miller, 14 A.3d at 1120(citations omitted). Moreover, “[w]here the issue to be resolved is not one of
historical fact [ ] relevant to the Brady issues,” but instead “concerns the legal
consequences” of historical facts, our review is de novo. Mackabee, 29 A.3d at 959(quoting Miller, 14 A.3d at 1120-23) (internal citations and quotation marks
omitted).
Assuming without deciding that the information was suppressed as appellant
contends, we are satisfied that the outcome of the trial would not have been different.
Whether the defense is prejudiced by the late disclosure of Brady information turns
on whether the evidence that was suppressed is material; that is, whether there is a
“reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Mackabee, 29 A.3d at 959 (quoting Cone
v. Bell, 556 U.S. 449 (2009)) (citations omitted). “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Id. (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)).
In Mackabee, this court found that the defense suffered no prejudice due to the
allegedly late disclosure of the videotaped statement containing a witness
description of the shooter or the late disclosure of the identity of a government
27
witness who had identified two individuals other than the defendant as being the
shooter from a photo array. Id. at 960, 963. We rejected appellant’s argument that
“through fuller and earlier disclosure, the defense team might have spoken with [the
witness who made the photo identifications], might have been able to locate the two
men who sort of look[ed] like the shooter, and might have uncovered information to
undermine the government’s theory that appellant was the assailant.” Id. at 964.
This was because it could not reasonably be said that earlier disclosure of this
information, which might have resulted in additional investigation, necessarily
would have led to the discovery of information that would have changed the
outcome of the trial or “undermine[d] confidence in the verdict.” Id. Not only was
the witness who viewed the photo array the only one who identified those other two
individuals as the shooters, but the court found appellant’s argument that these
“mis-identifications” would have directly contradicted other witness identification
testimony was “little more than speculation.” Id. at 963. Finally, the undisclosed
witness’s description of the shooter’s clothing matched that of other eyewitnesses,
which was not helpful to the appellant, at whose house a jacket matching the
description was found. Id.
In this case, appellants have failed to explain concretely how an earlier
disclosure of Williams’ identification of the shooter as the driver of the tan Explorer,
28
or the fact that Rakiya made an antagonistic gesture out the window to Jameeka
Washington, created a reasonable probability that the verdict would have been
different. As previously explained, defense counsel was able to use the information
concerning the tan Explorer and the antagonistic gesture Rakiya made to
Washington “from the very early part of the case . . . [v]ery effectively planting the
seeds of a possible third-party perpetrator theory.” With respect to Williams’
description of the shooter as having been the driver of the tan Explorer, the trial
judge correctly concluded that the defense was not prejudiced by the late disclosure
of the contents of Detective Murphy’s notes because it was “just too speculative to
conclude that earlier pursuit of this information would have led to a discovery of
some exculpatory information . . . .” Finally, though the defense argues that it
would have presented a theory of shoddy police investigation had it known earlier of
Williams’ identification of the shooter as the driver of the tan Explorer, the defense
knew about that identification with plenty of time to call Detective Murphy at trial
but chose not to do so for strategic reasons, most notably to keep Williams from
being called to testify.
Moreover, eyewitness descriptions of the shooting, as well as a security video
from a nearby funeral home, established that the shooter approached the victims
from Randolph Place, N.W., shot them, and ran back towards Randolph Place.
29
Specifically, Ronald Taylor observed the shooter run around the corner onto
Randolph Place and get into the passenger seat of a red van, which was then chased
by the police. When the van was finally stopped, Robin was in the driver’s seat and
Terry was sitting in the front passenger seat. Furthermore, all of the eyewitnesses
described the shooter as a stocky black male of medium height with his hair in
dreadlocks wearing a black T-shirt, jeans, and a ski mask with holes for the eyes, a
description that generally fit Terry, but not the two other men in the van.
Additionally, two ski masks were discarded from the van fitting the description of
the mask worn by the shooter and both contained Terry’s DNA. And finally,
although his testimony was heavily impeached, Daniels testified that Terry
confessed to Daniels that he was the shooter.
We also reject appellants’ alternative argument that they might have been able
to make use of this information to advance a theory of “shoddy” police work had the
contents of Detective Murphy’s notes been disclosed earlier. According to the
record before us, the full content of Detective Murphy’s notes was turned over well
before the opening of the defense’s case-in-chief at trial and appellants made a
strategic decision not to call Williams or Detective Murphy at trial. As the trial
judge correctly concluded, nothing prevented the defense from calling Detective
Murphy to testify about Williams’ identification of the driver of the tan Explorer as
30
the shooter so long as Williams was available for cross-examination. See D.C.
Code § 14-102 (b)(3) (“A statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the statement and the
statement is . . . an identification of a person made after perceiving the person.
Such prior statements are substantive evidence.”). Williams’ availability was
discussed at various points throughout the trial and it was agreed that he could be
brought into court if necessary, but the defense ultimately decided that it did not
want to call Williams because he had become unreliable and uncooperative. That
the defense did not want to risk Williams being called to the stand by putting on
Detective Murphy does not render the content of Detective Murphy’s notes
suppressed for Brady purposes. To the contrary, the evidence was completely
available to the defense, and they chose not to present it. Therefore, we are satisfied
that, even as to this alternative theory, the contents of Detective Murphy’s notes
were not suppressed.
Thus, even had the information in Detective Murphy’s notes been disclosed
well in advance of trial, we are satisfied that there was no reasonable probability of a
different result and, therefore, we affirm the trial court’s decision that there was no
Brady violation in this case. Bagley, 473 U.S. at 682.
31
IV. Evidentiary Issues
Robin challenges the trial court’s decision to admit certain testimony, which
he argues should have been excluded. Specifically, Robin contends that the trial
court abused its discretion: (1) in permitting the government to elicit testimony that
impermissibly bolstered Daniels’ credibility, and (2) by allowing the government to
bring out irrelevant and unfairly prejudicial testimony that the home of Terrell Gray
(“Gray”), a defense witness, was shot at prior to the North Capitol Street shooting.
With respect to Robin’s first contention, it is well-settled in this jurisdiction
that not all relevant evidence is admissible, especially if “its probative value is
substantially outweighed by the danger of unfair prejudice.” Gay v. United States,
12 A.3d 643, 646-47 (D.C. 2011). This court reviews a trial judge’s decision to
admit or deny certain relevant evidence on the basis that its probative value is (or is
not) substantially outweighed by the danger of unfair prejudice for abuse of
discretion. Punch v. United States, 377 A.2d 1353, 1358 (D.C. 1977); see also
Johnson v. United States, 398 A.2d 354, 363-66 (D.C. 1979) (factors that should be
taken into account on appellate review of a trial court decision under the abuse of
discretion standard include: (1) whether the determination was committed to the
trial court’s discretion; (2) whether the trial court recognized that discretion and
32
purported to exercise it; (3) whether the record reveals sufficient facts upon which
the trial court’s determination was based; (4) whether the trial court exercised its
discretion erroneously; and (5) whether having found error, it was of such a
magnitude as to require reversal).
On cross-examination, Daniels was impeached with evidence that, after
testifying at trial against his co-defendant in a 1992 murder case, he sent letters to the
judge who presided over that trial recanting his trial testimony and actually
admitting to having committed the murders. Daniels testified that he was forced at
knifepoint to sign the recantation and confession in that case by some friends of his
co-defendant in that case. When Daniels was asked whether anyone had been
prosecuted for forcing him to sign the documents at knifepoint, he answered “no”
before the government’s objection to the question was sustained by the trial court
and further testified, without objection, that he subsequently called the prosecutor
about the incident and was moved to another location. Counsel for appellant Robin
then confronted Daniels with the letters and his specific claims in those letters that
he cooperated with the government because the prosecutor had threatened to take
away his sister’s children and that he had taken a watch from a victim of that
shooting that had the victim’s name inscribed on it.
33
On redirect, Daniels repeated that after he signed the letters, he contacted the
prosecutor and was moved, but this time it was over objection by appellants. The
government was also allowed to elicit testimony from Daniels, over objection, that
nothing happened to the co-defendant’s conviction after he wrote the letters.
Specifically, appellant Robin contends that the trial court abused its discretion
by: (1) prohibiting the defense from asking Daniels on cross-examination whether
anyone was ever prosecuted for allegedly holding a knife to his throat and forcing
him to sign the letters in which he admitted to committing the 1992 murder that
were sent to the prosecutor and judge in that case; (2) prohibiting the defense from
questioning Daniels about specific details involving the 1992 murder that were
included in those letters; and (3) allowing Daniels to testify that he was
subsequently moved from his jail cell into protective custody after the letters were
sent and that the co-defendant’s conviction was never overturned.
We are satisfied that the trial court did not abuse its discretion with respect to
any of these evidentiary rulings. First, Daniels had already testified during
cross-examination that no one had been prosecuted for allegedly holding a knife to
his throat and forcing him to sign the jailhouse confession. Because the answer to
that question was not stricken from the record, we fail to see how his repeating that
34
testimony during redirect prejudiced Robin. Second, while the trial court prevented
Robin from questioning Daniels about the specific details of the 1992 murder that
were contained in the letter, the trial court did allow Robin to elicit substantial
details about the murder during cross-examination, including the claim that Daniels
had committed the murders, and Robin had the opportunity to use the letter to
impeach Daniels’ credibility. Where, as here, there is the potential risk of juror
confusion from the introduction of extrinsic evidence from an unrelated case twenty
years in the past, and the trial court allowed appellants to question Daniels about the
murder case as well as to use the letter’s existence and the fact of the recantation to
challenge Daniels’ credibility, the curtailment of some additional lines of
questioning about the letter that also goes to his credibility is not an abuse of
discretion. See Porter v. United States, 561 A.2d 994, 996 (D.C. 1989) (“[T]he trial
judge has wide latitude to impose reasonable limits on cross-examination as to the
potential bias of a witness based on concerns about, among other things, harassment,
prejudice, confusion of the issues, or interrogation that is only marginally
relevant.”).
Finally, Robin’s argument, that the trial court abused its discretion by
allowing Daniels to testify that he had been moved into protective custody and that
the defendant’s conviction in the murder case was not overturned, might be more
35
persuasive had the defense not opened the door by questioning Daniels about the
government’s response to his complaints about the alleged assault during Daniels’
cross-examination and had the appellants not left the impression that an innocent
man was convicted on the strength of Daniels’ false testimony in the prior case.
“The scope of redirect examination rests within the sound discretion of the
trial court and will not be reversed absent a showing of clear abuse.” Hairston v.
United States, 497 A.2d 1097, 1103 (D.C. 1985). Redirect examination may be
properly used “to deal with matters which first came up on cross-examination.”
Brown v. United States, 763 A.2d 1137, 1140 (D.C. 2000). Here, the issues
involving the 1992 murder case were first raised on cross-examination by appellant
and the impressions that appellant intended to leave with the jury were misleading
and unfairly prejudicial. Under those circumstances, we cannot say that the trial
court abused its discretion in allowing the government to rebut the impression that
the government took no action in response to Daniels’ complaint or that an innocent
man was convicted based on Daniels’ false testimony. See (Keith) Thomas v.
United States, 978 A.2d 1211, 1239-40 (D.C. 2009) (no abuse of discretion to permit
detective to testify on redirect that he believed witness’s out-of-court statements
because purpose was to rebut defendant’s suggestion on cross-examination that the
detective agreed to provide relocation assistance to witness in return for false
36
testimony); see also McClellan v. United States, 706 A.2d 542, 551-552 (D.C. 1997)
(no abuse of discretion where trial court allowed redirect examination of two
witnesses, who had moved out of the state because they were afraid for their own
lives after witnessing a murder, after the defense on cross-examination opened the
door by questioning the witnesses about untruthful statements they had given to
homicide detectives).
Appellants also contend that the trial court abused its discretion when it
allowed the government to question Gray about a shooting that occurred at the Gray
family home but that he failed to report. Gray, who is Daniels’ nephew and who
had grown up next door to Terry, was called by the defense to impeach Daniels’
credibility by testifying that the conversation Daniels said happened with Terry and
his nephews a few days after the shooting in the basement of the Gray’s new house
never actually happened. Gray also testified that in his family, Daniels was known
as “pretty much a liar.” The government wanted to cross-examine Gray about the
fact that his house had been shot up in early 2009, arguing that the expected answer
to the question, that he had not reported the shooting or cooperated with the police,
would lead to evidence of Gray’s bias against “snitches” or “rats” (which the
government had already begun probing). The defense objected to the government’s
attempt to introduce this line of questioning, arguing that it was completely
37
irrelevant to his uncle’s truthfulness or to any of the events at trial because there was
no connection between that shooting and the North Capitol Street shooting. They
argued that allowing questions about that shooting would irredeemably and
improperly inject the possibility of a vengeful motive for the subsequent shooting in
this case. We disagree. A review of the record reveals that the questions
complained of (“Your family was the victim of a shooting” and “You didn’t help the
police at all, did you?”) were clearly offered to impeach Gray’s testimony on direct
that he was not biased against cooperating with the police. Moreover, no attempt
was made by the government to tie the shooting at the Gray house to the shooting in
this case and the trial court specifically instructed the jury that the questions about
the prior shooting had nothing to do with the charges or the people involved in this
case. Because bias is always relevant and probative and because a jury is presumed
to follow a trial court’s instructions, the impeachment evidence complained of here
was not substantially more prejudicial than probative and, therefore, the trial court
did not abuse its discretion in allowing the government to impeach Gray’s claim that
he was not biased against assisting the police by questioning him about his response
to the prior shooting. See Longus v. United States, 52 A.3d 836, 850 (D.C. 2012)
(“Bias refers both to a witness’ personal bias for or against a party and to his or her
motive to lie . . . . Bias is always a proper subject of cross-examination.”) (citation
and internal quotation marks omitted); see also Zafiro v. United States, 506 U.S.
38534, 540 (1993) (a jury is always presumed to follow a trial court’s instructions).
V. Admission of Terry’s Out-of-Court Statements Against Robin
Next, Robin challenges the admission of the statements that Terry allegedly
made to Daniels a few days after the shooting on North Capitol Street under the
statements against penal interest exception to the hearsay rule. The specific
statements Robin challenges are that Terry told Daniels:
They threw the gun;
They threw the gun somewhere near Ridge Road and
Mount Rainier;
the media had “gotten it wrong” when they had reported it
as a drive-by shooting and that “they got out”;
we got out of the truck;
they was outside drinking and we just walked up the
streets with our heads down;
they had parked on the side and they walked up the street
and that Kwame [victim Wingard] had his head down and
“they rushed him.”
A defendant’s confession or extrajudicial statement is generally inadmissible
against a co-defendant under the Confrontation Clause of the Sixth Amendment and
the traditional hearsay rules. (Keith) Thomas, 978 A.2d at 1222. The Sixth
Amendment Confrontation Clause guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against
39
him.” U.S. CONST. amend. VI. “A witness’s testimony against a defendant is thus
inadmissible unless the witness appears at trial or, if the witness is unavailable, the
defendant had a prior opportunity for cross examination.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309 (2009) (citing Crawford v. Washington, 541 U.S.
36, 53-54 (2004)). In Davis v. Washington, 547 U.S. 813, 822 (2006), the Court
clarified that a “critical portion of this holding, and the portion central to resolution
of the two cases now before us, is the phrase ‘testimonial statements.’” While the
Supreme Court has not provided an exhaustive list of what constitutes a testimonial
statement, it has held that a statement is testimonial if it is “[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact . . . under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Crawford, 541 U.S. at 51-52.
In this case, the statements Terry allegedly made to Daniels were made in the
privacy of the Grays’ home and were made in connection with what was purportedly
a casual conversation with a friend about the incident. Therefore an objective
witness would not have reasonably believed that the statements would later be used
against him at trial. Id.While admissions of Terry’s out-of-court statements did not violate the
Confrontation Clause, they may nevertheless be inadmissible under the traditional
40
hearsay rules. See (Michael) Thomas v. United States, 914 A.2d 1, 12 (D.C. 2006)
(explaining that hearsay statement that is non-testimonial is nevertheless subject to
the traditional hearsay rules). We review de novo whether a defendant’s statement
is admissible against his co-defendant under the “declaration against penal interest”
exception. See (Keith) Thomas, 978 A.2d at 1225.
This court has adopted a test from the Federal Rules of Evidence that governs
when a declaration against penal interest is admissible. Laumer v. United States,
409 A.2d 190, 199 (D.C. 1979) (en banc). This test, hereinafter the Laumer test,
states that in order for a statement to be admissible as a declaration against penal
interest, the trial judge must find: (1) that the declarant made the statement; (2) that
the declarant is unavailable to testify; and (3) that there are “corroborating
circumstances [which] clearly indicate the trustworthiness of the statement.” Id. at
199; see also (Keith) Thomas, 978 A.2d at 1228. Whether there are such
corroborating circumstances that indicate the reliability of the statement is
determined by considering factors such as the time that the declaration was made
and to whom it was made, the existence of extrinsic evidence corroborating the
declaration, and the extent to which the declaration was against the declarant’s penal
interest when it was made. Laumer, 409 A.2d at 199-200; (Keith) Thomas, 978
A.2d at 1228.
41
Here, there is no dispute that the second prong of the Laumer test is
satisfied—that is, that the declarant is unavailable—because Terry was on trial with
Robin and therefore could not be compelled to testify. However, Robin argues that
the trial court erroneously found that Daniels’ testimony satisfied the first and third
prongs of the Laumer test and therefore was admissible.
With respect to the first prong, the trial judge made the following factual
findings, which we reject only if clearly erroneous: (1) Daniels had a close
relationship with Terry because he had been a neighbor of Terry’s family for years;
(2) Daniels was close to Terry’s family, and he and Terry referred to one another as
“nephew” and “uncle”; and (3) Terry was frequently in and out of Daniels’ family’s
house, and sometimes Daniels would see Terry daily. Moreover, the statement was
allegedly made just days after Terry was released from jail after his initial arrest for
the shooting, apparently in the privacy of the Grays’ home with a limited audience.
Thus, the trial judge reasoned that “it’s very plausible that a younger person like Mr.
Terry would seek the advice of an older neighbor or family friend like Mr. Daniels,
since he might believe that Mr. Daniels would be able to speak from his own
experience and answer questions that he’s asking about the criminal justice system
and about law enforcement investigation.” We are satisfied that the trial judge’s
42
subsequent conclusion that Terry actually made these statements to Daniels, which
is based on these factual findings that were not clearly erroneous, is supported by the
record. Therefore, the first prong of Laumer was met.
With respect to the third prong of the Laumer test, Robin argues that there was
no evidence in the record of circumstances corroborating the truth of the statements
Terry allegedly made to Daniels referring to “we” and “they” because there was
absolutely no evidence in the record to suggest that there were multiple shooters or
multiple individuals that approached the group of victims. As such, the third prong
of Laumer was not met and these statements were improperly admitted. We
disagree.
We note that for the same reasons that the trial court found Daniels to be a
credible witness, Daniels’ out-of-court statements also bear other indicia of
trustworthiness. See (Keith) Thomas, 978 A.2d at 1229; Laumer, 409 A.2d at 201(“The existence of a close relationship between the declarant and the witness also
may provide indications of trustworthiness.”); see also United States v. Manfre, 368
F.3d 832, 842 (8th Cir. 2004) (upholding admission of statements “not made while
facing trial, but . . . instead made casually to an intimate confidante”); Anthony v.
DeWitt, 295 F.3d 554, 564 (6th Cir. 2002) (“[S]tatements made to a family member
43
or perceived ally, in confidence, have previously been deemed sufficiently
trustworthy.”).
Furthermore, the trial judge articulated a number of specific facts that she felt
constituted corroborating evidence of Terry’s alleged statements to Daniels. First,
while all of the evidence did suggest that there was only one shooter, that was not
fatal to the government’s argument because there was plenty of evidence in the
record of “concerted action,” such that Terry could have been recounting what
happened to Daniels using “we” instead of “I” because he was thinking of all three
of the defendants as having been responsible for the acts. Second, there was plenty
of eyewitness testimony to corroborate the general sequence of events that Terry
allegedly described to Daniels regarding how the shooting occurred—the shooter
gets out of the vehicle, walks down the street, then rushes in and shoots Kwame.
Three eyewitness accounts also had the shooter running back toward the red
van—one eyewitness even saw the shooter get into the red van—and after a
twenty-five to thirty-minute car chase, the three co-defendants were pulled out of
that red van. The trial court reasoned that the inference to be drawn from the
totality of the government’s evidence was sufficient to corroborate the truth of the
statements Terry allegedly made to Daniels.
44
Reviewing this conclusion de novo, we agree that there was sufficient
corroborative evidence of the statements Terry allegedly made to Daniels to satisfy
the third prong of Laumer. While the use of the pronoun “they” was contradicted
by all of the evidence that there was only one shooter, the statements were made in
confidence to Daniels—who Terry presumably trusted and had reason to believe
might be able to help him—only days after the shooting, the general sequence of
events Daniels described was corroborated by eyewitness testimony and DNA
evidence, and the statements clearly inculpated Terry and did not attempt to shift
greater blame to another. See Harrison v. United States, 76 A.3d 826, 836-37 (D.C.
2013) (finding that there were sufficient corroborating circumstances to justify
admission of the defendant’s inculpatory statement under the Laumer test because
the statement “was made shortly after [the defendant’s] arrest, to his then-girlfriend,
whom he presumably trusted, . . . the statement was consistent with the testimony of
several government witnesses, [and] the statement was sufficiently against [the
defendant’s] penal interest that a reasonable person in his position would not have
made the statement without believing it to be true”) (citation and internal quotation
omitted). Therefore, we agree that the third prong of Laumer was met and these
statements were admissible against Robin under the “declaration against penal
45
interest” exception to the hearsay rule.9
VI. Merger of Terry’s PFCV Convictions
Generally, “where two predicate armed offenses do not merge, a defendant
may be convicted of separate counts of PFCV relating to each offense.” Hampleton
v. United States, 10 A.3d 137, 146 (D.C. 2010) (citations omitted). However, even
if the predicate armed offenses do not merge, multiple PFCV convictions will merge
“if they arise out of a defendant’s uninterrupted possession of a single weapon
during a single act of violence.” Id. (quoting Matthews v. United States, 892 A.2d
1100, 1106 (D.C. 2006)); see also Nixon v. United States, 730 A.2d 145, 153 (D.C.
1999). To determine whether multiple PFCV convictions were based on one act of
violence, or more than one act of violence, the court applies a fact-based approach.
Campos-Alvarez v. United States, 16 A.3d 954, 962 (D.C. 2011). Acts are
considered distinct when “a subsequent criminal act was not the result of the original
impulse, but a fresh one.” Id. This court reviews de novo whether Terry’s four
9
Having found only one error with respect to Robin’s convictions—that
there was insufficient evidence to convict him of two AAWA counts (as to Clipper
and Williams)—which we have remedied, we reject Robin’s argument that he is
entitled to further post-conviction relief based on the cumulative errors committed in
the trial court.
46
convictions for PFCV merge. Nixon, 730 A.2d at 151.
Appellant Terry argues that his four PFCV convictions should merge into one
because the predicate felonies in this case “began at the same time and were
committed together by means of the same act of violence involving the same
weapon.” The government argues that none of the PFCV convictions merge
because the victims were all shot multiple times and that a reasonable inference from
the accuracy of the shots is that Terry separately targeted each of the four victims
and thus, each victim represented a fresh impulse. On the facts of this case, we
disagree with both positions. Here, there was eyewitness testimony that Terry fired
his first “volley of shots” at a group of people about fifty feet away and hit two of the
victims, Clipper and Williams, who were running eastbound across North Capitol
Street, and that he then took several more “deliberate” steps southbound before
firing his second “volley of shots,” hitting Washington and Wingard, who were
fleeing south towards R Street. After a pause in the shooting, Terry took several
steps before aiming his weapon and firing a separate volley of shots at victims
fleeing in a different direction, thus there were at least two distinct criminal acts.
While there were four victims, and all were shot multiple times, the record evidence
supports only a finding that Terry fired a volley of shots in the direction of a group of
people fleeing eastbound and then, after taking a few steps, fired another volley of
47
shots at several people fleeing southbound. There is no evidence that he aimed and
fired at each of the victims separately and, therefore, we believe that Terry
committed at most two separate criminal acts. In Campos-Alvarez, this court held
that three PFCV convictions did not merge where the shooter “fired at three separate
moving targets . . . albeit rapidly and in quick succession.” 16 A.3d at 963. We
reasoned that he reached a “fork in the road” after shooting the first victim, and
“could have elected not to fire” at the others who fled in different directions, id. at
963-64, but that his decision to aim and fire at each of the other two victims running
in different directions constituted fresh impulses to commit separate crimes. Here,
eyewitness testimony supports an inference that Terry reached a “fork in the road”
after shooting a volley of shots in an eastbound direction across North Capitol Street
and hitting Clipper and Williams, and therefore, he committed a new offense when
he subsequently turned his weapon towards those fleeing southbound down North
Capitol Street and started firing, hitting Washington and Wingard. Because there
was no evidence that Terry aimed and fired at each victim separately as opposed to
firing a volley of shots in a particular direction, this evidence supports, at most, two
convictions of PFCV.
Because there is insufficient evidence in the record to support four separate
PFCV convictions, on remand, the trial court should vacate two of Terry’s PFCV
48
convictions.
VII. Conclusion
Consistent with the foregoing opinion, we remand this case to the trial court
with instructions to vacate Terry’s AAWA convictions and Robin’s AAWA
convictions for assaulting Clipper and Williams, and enter judgments of conviction
on those counts for Assault with Significant Bodily Injury. Further, we remand the
case for the trial court to vacate two of Terry’s PFCV convictions. In all other
respects, we affirm.10
10
During the pendency of this appeal, both appellants filed letters requesting
a stay of the proceedings so they could pursue ineffective assistance of counsel
claims in the trial court, which this court construed as pro se motions to stay the
appeals. In addition, Terry requested that this court appoint counsel to assist him in
this endeavor. At the time appellants filed their letters with the court, there was no
compelling reason to grant their motions to stay the appeal because nothing
prevented appellants from seeking appointment of counsel in the trial court and/or
pursuing any claims that they were entitled to a new trial. Because Robin timely
filed a § 23-110 motion in the trial court alleging ineffective assistance of counsel,
his motion to stay is denied as moot. While Terry has not yet filed a motion in the
trial court alleging ineffective assistance of counsel, because he was represented by
the same counsel during the trial and on appeal, any § 23-110 challenge he raises
will not be burdened by a showing of cause and prejudice for not filing the motion
while his direct appeal was pending. See Little v. United States, 748 A.2d 920, 923
(D.C. 2000) (noting that appellant was represented on direct appeal by the same
counsel that represented him at trial and was thus not barred from making a
collateral attack based on claims of ineffective assistance of counsel even though he
(continued . . .)
49
So ordered.
(. . . continued)
did not raise the issues on direct appeal) (citing Sullivan v. United States, 721 A.2d
936, 937 (D.C. 1998)). Thus his motion to stay the appeal is also denied. Finally,
his motion to appoint counsel is denied without prejudice to his seeking appointment
of counsel in Superior Court. See Kyle v. United States, 759 A.2d 192, 202-03
(D.C. 2000) (noting that appellant must file a § 23-110 motion “accompanied by a
request . . . to the Superior Court for it to appoint appellate counsel or other counsel
as § 23-110 counsel”).