Brian K. Gilliam, John A. Daniels, and Ronald L. English v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 08-CF-725; 08-CF-879; 08-CF-914
BRIAN K. GILLIAM, JOHN A. DANIELS, and RONALD L. ENGLISH, APPELLANTS,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF1-15379-07; CF1-14765-07; CF1-16618-07)
(Hon. Geoffrey M. Alprin, Trial Judge)
(Argued January 25, 2013 Decided November 21, 2013)
Montrell L. Scaife for appellant Brian Gilliam.
Thomas T. Heslep for appellant John Daniels.
Jonathan W. Anderson, Public Defender Service, with whom James Klein,
Public Defender Service, was on the brief, for appellant Ronald English.
Anne Y. Park, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States
Attorney at the time the brief was filed, and John P. Mannarino and S. Vinet
Bryant, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN, FISHER and OBERLY, Associate Judges.
2
GLICKMAN, Associate Judge: Early on the morning of January 5, 2006, a
shooting on 37th Street in Southeast Washington, D.C., left a man named Anthony
Knight dead and two others injured. The government prosecuted appellants
Gilliam, Daniels, and English for the crimes, charging them with conspiracy to
murder Knight and with his first-degree murder while armed along with two counts
of assault with intent to kill while armed and related firearms offenses. The case
against appellants rested on the credibility of Byron Holmes, an unindicted co-
conspirator who had agreed to testify against appellants as part of his plea
agreement. According to Holmes, appellants pursued Knight after he left a
nightclub in Maryland. Holmes claimed that, after splitting up in Maryland, he and
appellants reunited in the District at appellant English‘s house, armed themselves,
and proceeded to 37th Street, where they found Knight and gunned him down.
No one other than Holmes identified appellants as the perpetrators of
Knight‘s murder. Appellants denied having anything to do with it and claimed that
Holmes was shielding his actual accomplices. The jurors had difficulty deciding
the case—they deliberated for four days, sent three notes indicating they could not
agree, and received an anti-deadlock instruction before they reached their verdict.
In the end, the jury acquitted appellants of the murder and assault charges but
3
found each of them guilty of conspiracy to murder Knight1 and carrying a pistol
without a license (CPWL).2
Appellants challenge their convictions on multiple grounds. Without having
to address all of their claims of error, we conclude that appellants are entitled to a
new trial in this close case because they were denied a brief continuance to call a
witness who could have rebutted a key element of Holmes‘s testimony—his
assertion that he and appellants met up in the District to arm themselves for
Knight‘s murder.
I. Evidence at Trial
A. The Government’s Case
1. The Testimony of Byron Holmes
1
In violation of former D.C. Code § 22-1805a (2001) and D.C. Code § 22-
2101 (2012 Repl.).
2
In violation of former D.C. Code § 22-4504 (a) (2001). Appellant English
was convicted under subsection (a)(2) of committing the offense after previously
having been convicted of a felony (for which enhanced punishment is authorized).
4
Byron Holmes was the government‘s crucial witness. He testified that he
knew appellants from the 17th Street S.E. neighborhood where he grew up and had
been friends with them for several years before Anthony Knight‘s murder. Knight
was not from their neighborhood, but they all knew him. He was a member of a
37th Street crowd that they often encountered at the Tradewinds Club, a nightclub
in Maryland. There was, Holmes explained, a history of hostility between the two
neighborhoods. On a recent visit to Tradewinds, 37th Streeters had given Holmes
and appellants ―jealous looks‖; on another occasion, appellant Daniels had told
Holmes, they had watched Daniels and followed him around the club.
On the evening of January 4, 2006, Holmes and Daniels decided to go to a
concert at the Tradewinds Club. They drove to the club in Holmes‘s Chevy Tahoe.
Holmes took a Bryco Arms 9mm semiautomatic pistol with him ―for protection.‖
At Tradewinds they met up with appellants Gilliam and English, who had driven
there in Daniels‘s green Cadillac. Knight and some of his 37th Street friends were
present at the club as well. Holmes noticed Knight and Daniels ―mugging‖ or
exchanging ―funny‖ looks.
When the club closed at around 2 a.m., everyone left. Knight departed in a
gold-colored Cadillac. Gilliam went with Daniels in the latter‘s car while English
5
left with Holmes. Holmes gave his handgun to English, who commented
disparagingly on Knight‘s ―mugging.‖ As the two vehicles in which appellants
and Holmes were riding came to the intersection of Branch Avenue and Silver Hill
Road in Maryland, Holmes heard gunshots and felt something bump the rear of his
SUV. Yelling ―that‘s them,‖ English jumped out with Holmes‘s gun in his hand.
Holmes heard more gunshots and saw Daniels‘s car pursuing an ―eggshell-
colored‖ Cadillac down Silver Hill Road, with English chasing them on foot. The
Cadillac was not the one Knight had driven off in, but it was the same color, and
appellants allegedly mistook it for Knight‘s vehicle. Holmes, who had stopped his
SUV and remained inside it, soon lost sight of Daniels‘s car. After the shooting
ended, Holmes went to pick up English on Silver Hill Road. English, who had
shot at the fleeing Cadillac with Holmes‘s gun, allegedly directed Holmes to take
him home so he could retrieve his own firearm.3
Holmes testified that as he arrived at English‘s house at 18th and A Streets,
S.E., he received a call on his cell phone from Daniels. Daniels wanted to know
3
The shootings in Maryland were not charged as separate counts in
appellants‘ indictments, but they were included among the overt acts listed in the
conspiracy count.
6
where Holmes and English were so that he and Gilliam could rejoin them. Holmes
claimed he told Daniels they were in the alley behind 18th and A.
When Daniels drove up a few minutes later, Holmes saw that the front of
Daniels‘s car was damaged. Daniels explained that he accidentally had rammed
the back of Holmes‘s Tahoe when ―they were shooting.‖ English, accompanied by
Gilliam, went into his backyard and returned carrying a book bag. Daniels
retrieved two boxes of ammunition from his car and appellants piled into Holmes‘s
Tahoe. All four men were armed: Holmes had his Bryco 9mm pistol, Daniels had
a .40 or .45 caliber handgun, and English withdrew a MAC-10 semiautomatic
handgun from his book bag for himself and a gun for Gilliam. Holmes could not
see the gun Gilliam received from English, but he heard Gilliam cock and load it.
Holmes drove the three men to 37th Street. At the intersection of 37th and
Ely Streets, he observed a gold-colored Cadillac stopped in the street near a pickup
truck. A few people were standing next to the two vehicles. Anthony Knight was
one of them. At that point, English said ―[t]hat was them‖ and began firing out the
window. English then jumped out, followed by Daniels and Gilliam, while
Holmes remained sitting at the wheel of his SUV awaiting their return. Holmes
heard more shooting. The gold Cadillac started to drive away and Holmes fired at
7
it. When the shooting ceased, he looked back and saw Gilliam and English
kneeling down and Daniels standing near them. Appellants then got back into his
SUV and told Holmes to ―go, go, go, go.‖
Holmes drove back to 18th and A Streets. On the way, he saw English and
Daniels reload their guns and heard Gilliam do the same with his. In the alley
behind English‘s house, before the four men split up, they cleaned out the Tahoe.
English told Holmes that he and Knight had exchanged gunfire, and that when he
ran out of bullets after wounding Knight, Daniels and Gilliam were ―right there to
finish him off.‖4 Later that day, Holmes met again with English and Daniels.
Daniels said he had lost his ID and asked whether Holmes had seen it; Holmes had
not.
Holmes was arrested in November 2006. When questioned by detectives, he
initially denied any involvement in Knight‘s murder, but under further
interrogation Holmes eventually confessed and implicated appellants. Holmes also
showed the police where he had hidden his gun (the Bryco) and they recovered it.
He subsequently pleaded guilty to second-degree murder and conspiracy to murder
4
The trial court ruled English‘s statement to Holmes admissible against his
co-defendants under the co-conspirator exception to the hearsay rule.
8
and agreed to testify against appellants. Holmes was awaiting his sentencing when
he took the stand at appellants‘ trial.
2. Other Evidence
Although Holmes was the only witness at trial who could identify
appellants, other witnesses corroborated aspects of his testimony. The driver of the
Cadillac attacked on Branch Avenue testified that he was shot at by a man in the
passenger seat of a green Cadillac STS,5 and the owner of a car repair shop
testified that Daniels brought his dark green Cadillac STS in on January 5, 2006,
for repair of damage to its front. A witness to the Branch Avenue shooting
described the man she saw jump from a truck and the passenger she saw shooting a
gun out the window of a green car.6 To some extent her descriptions of the two
men and their vehicles matched the appearances of English, Gilliam (though he
offered evidence to the contrary), Holmes‘s Tahoe, and Daniels‘s Cadillac (though
the witness thought the car she saw was a Honda Civic).
5
According to the driver, the man put his hand out the car window ―with
the gun,‖ and ―started shooting.‖
6
The witness recalled that the passenger in the green car ―had a gun, and his
arm was out the window, and he put it towards my driver‘s side window and
started firing shots[.]‖
9
None of the surviving witnesses to the shootings on 37th Street could
describe the attackers. However, a wallet containing Daniels‘s driver‘s license
and other identification was found lying in the street by one of the first police
officers to arrive at the scene. The government also presented evidence that some
of the bullets and cartridge cases recovered at the scene of the 37th Street shooting
had been matched to a MAC-10 seized two months later when police stopped a car
that English was driving.7
B. Defense Cross-Examination and Evidence
Appellants claimed they were not present when Knight was killed and were
being scapegoated for a murder that Holmes actually committed with other
individuals.8 Appellants cross-examined Holmes vigorously. They impeached
him with the lies and inconsistencies in the stories he told the police following his
7
The MAC-10 apparently had been thrown from the car just before it was
stopped. Appellant Gilliam and a third man were with English in the car at the
time.
8
Daniels and English presented alibi witnesses. Arnold Marshall testified
that he saw Daniels and a woman drive out of the Tradewinds Club parking lot
early on the morning of January 5, 2006, in a silver or white Nissan. Marshall said
he saw the pair again later that morning on the highway. Tennille Young, who was
dating English in January 2006, testified that they left the Tradewinds in her car
and that English was with her at the time of Knight‘s murder.
10
arrest, and they explored Holmes‘s motive to curry favor with the government in
order to secure the benefits of his plea agreement, i.e., a reduced sentence. Holmes
admitted that the police had pressured him and promised him leniency. He agreed
that the detectives, unhappy with his initial answers, began to ―feed‖ him ―details
about their version of the event‖ and were the first to suggest that appellants were
the perpetrators. Holmes confirmed that it was a detective who suggested the
outlines of the story he eventually told (―And then she tells you, look, you could
simply have been giving some friends a ride and it went haywire; right?‖).
Before Holmes implicated appellants, he gave the detectives interrogating
him the name of another friend from the 17th Street neighborhood, James
―Whitey‖ Kelly, as someone with whom he had been to the Tradewinds Club. A
defense witness (Arnold Marshall) testified that Kelly, who was deceased by the
time of trial, was at the Tradewinds Club the morning of January 5, 2006. A
second defense witness, Vincent King, testified that Holmes told him it was he and
Kelly who had killed Knight.9 Holmes denied this.10
9
King, who acknowledged that he, Holmes, and appellants were ―all part of
the same crew‖ from the 17th Street neighborhood, testified that he had seen
Holmes with a MAC-10 prior to January 2006, and that Holmes had used the
weapon to commit an armed robbery with him. King further testified that Holmes
told him in January 2006 that he and ―Whitey‖ had shot Knight (―Little Ant‖) on
(continued…)
11
C. Holmes’s Cell Phone Records and the Denial of a Continuance
English‘s counsel undertook to disprove Holmes‘s testimony that Daniels
and Gilliam met back up with him and English at 18th and A Streets to rearm after
the shooting in Maryland. On cross-examination, Holmes reiterated his testimony
that Daniels called him on his cell phone to find out where he and English had
gone. Holmes confirmed that Daniels and Gilliam ―knew where to go‖ as a result
of that phone call. Holmes further testified that his cell phone number at the time
was (202) 327-3690. Thereafter, in the defense case, English introduced the call
detail records for that number through Sprint Nextel employee Bruce Levine.
Levine testified that the number was registered to Holmes and in use on the
(continued…)
37th Street, and that Holmes said he had used the MAC-10 and was trying to sell it
because it was ―dirty.‖
10
As noted below, Holmes‘s cell phone records indicated that he was in
telephonic contact on the night of the homicide with Damian Turner, another friend
from 17th Street. English‘s counsel attempted to ask Holmes whether, sometime
before January 5, 2006, he had seen Knight assault Turner. The trial court
sustained the government‘s objection to this inquiry on relevance grounds,
rejecting appellant‘s argument that it bore on a possible third-party perpetrator
defense and Holmes‘s possible motive to falsely implicate appellants in order to
protect Turner from suspicion. (Turner, like Kelly, was deceased by the time of
trial.)
12
morning of January 5, 2006. Contradicting Holmes‘s testimony, the call detail
records showed no call at all between Holmes and Daniels that morning.11
On cross-examination, the prosecutor asked Levine whether he had obtained
the records for another phone number, (202) 277-1049. Levine said he had not
been asked to check that number and had not done so. The prosecutor next asked
Levine if he knew whether Holmes had ―any other cell phone with any other
carrier.‖ Levine had ―no idea.‖
This was on a Thursday, and the court did not sit on Friday. On Monday
morning, English‘s counsel brought up the prosecutor‘s cross-examination of
Levine with the court. Stating that ―the jury certainly could have been left with the
impression [from the prosecutor‘s question about the number 277-1049] that Mr.
Holmes had more than one phone in operation‖ in January 2006 (negating the
11
Instead, the records revealed a series of calls between Holmes‘s cell
phone and the phone numbers of two other people. Between 2:33 a.m. and 3:05
a.m. on January 5, 2006, the only number Holmes‘s phone called, or received a call
from, was that of Holmes‘s girlfriend Latoya Richardson. In addition, between
9:30 p.m. on January 4, 2006, and 1:31 a.m. on January 5, 2006, there were
nineteen calls between Holmes‘s phone and a number registered to his friend
Damian Turner. Thereafter, between 3:21 a.m. and 4:44 a.m., there were four
more calls to or from Turner‘s number. There were no other calls that morning
involving Holmes‘s phone.
13
significance of Levine‘s testimony regarding Holmes‘s 327-3690 number), defense
counsel informed the court that she had subpoenaed the records for the number the
prosecutor had mentioned. Those records, counsel proffered, showed that the 277-
1049 number was registered to Holmes but was not in operation at all between
December 19, 2005, and January 18, 2006. Daniels therefore could not have
spoken with Holmes on that number on the morning of January 5, 2006. Counsel
stated that she wanted to put this information in evidence to dispel the
(mis)impression the prosecutor‘s question could have left with the jurors.
There was, however, an obstacle that needed to be overcome. As counsel
explained, the custodian of the records for the 277-1049 number, a Sprint Nextel
employee named Laura Spencer, would be unable to appear before Wednesday,
which was a holiday, meaning the witness would not be able to testify until
Thursday morning. But closing arguments were scheduled to start before then, on
Tuesday. Counsel therefore asked to be permitted to introduce the call records for
277-1049 with Spencer‘s authenticating affidavit (which had been obtained) in lieu
of having to call Spencer to the stand. The phone records had been provided to the
prosecutor. However, because the prosecutor refused to stipulate to their contents
or waive the custodian‘s presence, the court denied the defense request. It also
refused defense counsel‘s alternative request that the court instruct the jury
14
specifically that the prosecutor‘s question regarding the second phone number was
not evidence. Faced with the rejection of those two alternatives to live testimony,
counsel asked to be given time to call the records custodian to the stand on
Thursday. The court denied this request as well, stating ―it‘s a small point in the
trial‖ and that it could not ―wait that long.‖12
When court resumed the next morning (Tuesday), English‘s counsel
renewed her request to introduce the records showing that Holmes could not have
used a cell phone with the number 277-1049 to tell Daniels where to meet up with
him and English on the morning of January 5, 2006. Daniels and Gilliam now
joined in this request. Appellants‘ counsel argued that it was critically important to
their defense to correct the misleading implication of the prosecutor‘s question and
ensure that the jury did not assume (untrue) facts not in evidence—namely, that
Holmes could have been called by Daniels on a second cell phone with the number
the prosecutor had specifically mentioned. In opposition, the prosecutor rejoined
12
After this, the trial continued. The defense presented three witnesses and
rested shortly before noon on Monday. The prosecutor announced that the
government would not present a rebuttal case. The rest of the day was taken up
with discussion of instructions and other matters the court and counsel needed to
address in preparation for submitting the case to the jury.
15
that the defense had cross-examined Holmes extensively and this was just ―further
impeachment.‖13
The court inquired why the defense could not ―get the witness here today,‖
and English‘s counsel explained that the relevant document custodian was in
Kansas and that Bruce Levine was unable to provide the necessary testimony in her
place.14 Counsel pointed out that it was not until Levine‘s cross-examination that
she became aware of the 277-1049 number.
As an alternative to bringing in the custodian of records to testify on
Thursday, English‘s counsel proposed that the prosecutor could phone Ms.
Spencer, ask her ―whatever questions she wants,‖ and then submit her responses in
an affidavit. The prosecutor did not respond to that suggestion. The court stated
that it could not admit a hearsay affidavit over objection and that ―[t]he real
13
Moreover, the prosecutor insisted, she had ―a good faith basis to ask‖
Levine whether he had checked the records of Holmes‘s second cell phone
number, because she ―knew of the existence of more than one phone‖ even though
she ―didn‘t have the records.‖ Thus, it appears the prosecutor did not know at the
time of the cross-examination whether Daniels in fact had called Holmes on his
second cell phone on January 5, 2006. It is unclear whether Holmes had told the
prosecutor that Daniels called him on that phone.
14
Counsel elaborated that the witness availability problem was a function of
the merger of Sprint and Nextel and the different locations of the two companies‘
phone records.
16
question is should we wait two days?‖ Saying that it did not perceive the phone
record evidence to be ―critical,‖ the court then ruled that it would not ―delay the
trial.‖15
The rest of Tuesday morning was taken up with further discussions between
counsel and the court regarding jury instructions, the verdict form, the defendants‘
motions for judgment of acquittal, and other issues. At 11:59 a.m., the jury entered
the courtroom. Closing arguments commenced a few minutes later. At 4:25 p.m.,
after the prosecutor and counsel for Gilliam and Daniels had delivered their closing
arguments, the jury was excused with instructions to return on Thursday morning
(as the court would not be in session on Wednesday, a holiday).
When court resumed on Thursday morning, English‘s counsel made a last-
ditch attempt to salvage her cause. She asked the court to allow her to present the
live testimony of the phone records custodian that morning via the Superior
15
Defense counsel took one more stab, arguing that the court had the power
to admit the phone records and Spencer‘s affidavit authenticating them as a
sanction for the prosecutor‘s asking of a question that implied facts not in
evidence. The court rejected that argument because it saw no fault on the
government‘s part that would require any sanction. Finally, the court again refused
counsel‘s alternative request for a specific curative instruction. The court said it
simply would give the general instruction to the jury after closing arguments that
questions are not evidence, ―and you [i.e., defense counsel] can argue that.‖
17
Court‘s video conferencing facilities. Counsel said this would take only a few
minutes, allow the government to cross-examine the witness, and ―we would still
close today,‖ with the government having the opportunity to respond to the
custodian‘s testimony in its rebuttal argument. ―[T]he fact that no phone call was
made,‖ counsel again emphasized, ―is an imperative point in our case, as the whole
case rests on the credibility of . . . Byron Holmes.‖16 Counsel for Daniels and
Gilliam joined in the request. The prosecutor opposed it, arguing that the point
was not material (―if it‘s even relevant‖), and (perhaps somewhat inconsistently)
that ―to allow [the defendants] to reopen and highlight this particular piece of
evidence at this juncture [would] cause the Government to reconsider certain
decisions we made strategically with respect to our rebuttal case.‖17
The court expressed the view that, after ―a three-week and two-day trial,‖ it
did not think the jury would ―focus‖ on the phone call issue ―unless you emphasize
16
If the phone call from Daniels to Holmes never happened, counsel
elaborated, Holmes‘s testimony ―falls apart,‖ because it was the phone call that
allegedly brought the defendants and Holmes together at English‘s house to
proceed with the charged conspiracy. Counsel pointed out that the meeting at
English‘s house was one of the overt acts alleged in the conspiracy count of the
indictment.
17
The prosecutor did not disclose what those strategic decisions were or
proffer any evidence that would have countered the defense proof that Holmes did
not receive a call on his cell phone from Daniels.
18
it in your closing argument.‖18 Furthermore, the court said, reopening the case
would set up ―a possible need‖ for the government to present a case in rebuttal,
which ―would extend the trial [an]other day, maybe more.‖ Adhering to its prior
rulings, the court denied the defense request to present the testimony of the phone
records custodian that morning via a video conference hook-up.
In her closing argument, English‘s counsel hammered on Holmes‘s
testimony about getting a phone call from Daniels and declared that the phone
records showed that the call never happened:
During that twenty-minute period where you‘d have to
have this phone call so you would know where to meet
up so you could discuss what happened, and pile into
[Holmes‘s] car, what are there? There are five phone
calls. These all are Latoya Richardson [Holmes‘s
girlfriend]. . . . So that time period where he says this is
how we all got together, because I made a phone call and
we discussed where to meet, that didn‘t happen. That‘s a
lie, because his story is a lie. Because most likely, he
didn‘t even go anywhere near 17th Street. He just drove
right to the scene.
18
Actually, in their closing arguments on Tuesday, the attorneys
representing Gilliam and Daniels already had focused the jury on the issue. Each
defense counsel argued that the phone records showed Holmes had lied when he
testified to having been called by Daniels.
19
To rebut the prosecutor‘s suggestion that Holmes had another cell phone for which
the defense had not presented call records, counsel argued:
Now, when you look at these phone records, you will
know that that‘s Byron Holmes‘s phone, and he was
using it all night long, and who he was calling, because
there‘s not going to be a question of did he have some
other phone out there. But you were left potentially with
the impression that maybe Byron Holmes has two
phones. Well, if there‘s another phone out there that he
was using, and they have phone numbers and somehow
they can prove that, don‘t you think that [they] would
bring–they‘d bring that before you? Wouldn‘t that be
important evidence for you to hear? Don‘t fall for the
innuendo of questions that aren‘t evidence. . . . [T]he
judge will instruct you that questions are not evidence.
In rebuttal, the prosecutor expressed disdain for the defendants‘ focus on
―the lack of . . . corroborating evidence in the phone records that shows this call
from John Daniels.‖ The government, she simply asserted, had no need to prove
how the defendants ―got in contact with each other between the scenes; whether it
was on [Holmes‘s] phone, on [English‘s] phone, on any—there‘s no allegation [in
the indictment] as to there‘s this contact, and you have to believe that.‖
Following the closing arguments and a break for lunch, the court instructed
the jury. Its instructions included a sound general instruction that lawyers‘
20
questions are not evidence.19 Thereafter, at 3:52 p.m. on Thursday afternoon, the
jury retired to commence deliberations.
II. Discussion
Appellants present multiple claims for relief in this court, each of which we
will address below. We shall begin with the one claim above all others that
compels us to grant appellants a new trial on all the counts of conviction.
A. Denial of a Continuance
Appellants English and Daniels argue that the trial court abused its
discretion in refusing to continue the trial to allow them to call another Sprint
Nextel employee to testify that Holmes‘s cell phone number 277-1049 was not
active on the morning of January 5, 2006. We agree that it was reversible error for
19
The court instructed the jury on this point as follows:
The statements and arguments of the lawyers are not
evidence. They are only intended to assist you in
understanding the evidence. Sometimes the lawyer‘s
question suggests that something is a fact. Whether or
not something is a fact depends on the witness‘s answer,
not the lawyer‘s question. The lawyer‘s question is not
evidence.
21
the court to deny the brief continuance necessary to enable English to present this
evidence, as it was necessary to counter the prosecutor‘s implication, devoid of
support in the evidence, that Holmes was called by Daniels on that number.
We review a ruling denying a continuance to secure a witness for abuse of
discretion.20 Our cases have identified several relevant factors to be considered by
the trial court in deciding whether to grant such a continuance and by the
reviewing court in determining whether discretion has been abused in its denial.
These factors, as they present themselves to the appellate court, include (1) the
probative value of the absent witness‘s proffered testimony, (2) the likelihood that
the witness would have appeared if the continuance had been granted, (3) whether
the party seeking the continuance exercised due diligence and proceeded in good
faith, (4) the prejudice to that party from the denial of the continuance, (5) the
prejudice to the opposing party had the continuance been granted, and (6) the
duration of the requested continuance and any consequent disruption or delay of
the trial.21 While efficiency in the conduct of the trial is a laudable goal, it must
20
Daley v. United States, 739 A.2d 814, 817 (D.C. 1999).
21
Id.22
yield when a party has demonstrated that a requested continuance is ―reasonably
necessary for a just determination of the cause.‖22
We think the trial court did not properly address, and to some extent may
have overlooked, these factors.23 To begin with, the court underestimated the
probative value of the evidence that the defense sought to introduce. The
truthfulness of Holmes‘s testimony that he received a call from Daniels on his cell
phone was no small matter. It was critical to Holmes‘s account that appellants
reassembled at English‘s house to arm themselves and proceed to 37th Street.24
According to Holmes, appellants were able to regroup for this purpose after
splitting up in Maryland only because Daniels called Holmes on his cell phone and
22
O’Connor v. United States, 399 A.2d 21, 28 (D.C. 1979) (internal
quotation marks omitted); see also Ungar v. Sarafite, 376 U.S. 575, 589 (1964)
(cautioning that ―a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend . . . an empty
formality‖).
23
See Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979) (―The court
reviewing the decision for an abuse of discretion must determine whether the
decision maker failed to consider a relevant factor, whether he relied upon an
improper factor, and whether the reasons given reasonably support the
conclusion.‖) (internal quotation marks omitted).
24
As previously noted, appellants were not charged in Superior Court with
the earlier shootings in Maryland (offenses over which the Superior Court lacked
jurisdiction). The prosecution had to prove appellants guilty of the charged
criminal conduct in the District of Columbia.
23
found out from him where to meet. Thus, if appellants could adduce evidence
proving that Holmes never received such a call, it would be no mere technicality.
It would impeach the pivot of Holmes‘s testimony and cast doubt on his entire
story that he and appellants joined forces in the District to murder Knight.
The call detail records maintained by the phone company for the only cell
phone number to which Holmes testified appeared to supply such powerful
impeachment, and in a form that was hard for the government to contest. But, to a
degree that the court did not seem to recognize, the prosecutor blunted and
deflected this evidence by implying in her cross-examination that it had no force at
all because the defense had obtained the records for the wrong cell phone number.
Lending concreteness to this implication, the prosecutor even specified the ten-
digit phone number that had not been investigated. There was no ambiguity in the
question that the prosecutor asked; the jury undoubtedly understood it as meaning
that Holmes had a second cell phone with the number the prosecutor recited, on
which Daniels must have called him.25 There was, of course, no evidence of this in
25
The prosecutor‘s follow-up question to Levine—she asked if he knew
whether Holmes had ―any other cell phone with any other carrier‖—served to
underscore the point. And the prosecutor‘s truncated remark in her rebuttal
argument (it did not matter, she stated, whether Holmes and Daniels communicated
―on [Holmes‘s] phone, on [English‘s] phone, on any—‖) reminded the jury of the
second phone possibility.
24
the record, and the prosecutor never proffered or undertook to supply it; nor,
clearly, did she expect to elicit the evidence by putting her question to Levine.
Thus, the prosecutor‘s question was not ―a small point in the trial,‖ as the trial
court characterized it. It had the real potential to mislead the jury into assuming
facts not in evidence, to the serious detriment of appellants‘ defense. It is
immaterial that the prosecutor may have had a good faith basis to ask the question
and did not intend to mislead the jury.26 ―Ultimately, it is not the intent or bona
fides of the prosecutor that matter in this context[.]‖27 The question ―threatened to
plant a false and damaging insinuation and should not have been asked.‖28
So appellants had strong reason and justification to counter the prosecutor‘s
implication and prove it false, and in the proffered phone company records for the
number the prosecutor had mentioned, they had the evidence with which to do just
that. By all indications, this evidence would have been compelling; there is no
26
See Woodard v. United States, 56 A.3d 125, 128 (D.C. 2012) (noting that
―even unintended misleading remarks can have [a] potential impact on the jury,‖
and that ―[a] statement may be technically accurate or factually correct but still
misleading based on the natural and reasonable inferences it invites‖) (internal
quotation marks omitted).
27
Id. at 128.
28
Rowland v. United States, 840 A.2d 664, 683 (D.C. 2004).
25
sign that the government would have been able to refute or undermine it. It would
have supported a considerably stronger closing argument that Holmes
demonstrably had fabricated at least some of his accusations against appellants,
and that the government had no sufficient rejoinder. The prosecutor would not
have found it so easy in rebuttal to dismiss the evidence with a rhetorical wave of
the hand by merely alluding to the possibility of other phones and disavowing any
obligation to prove exactly how Daniels and Holmes communicated.
There appears to be no genuine dispute that Holmes‘s second cell phone was
not in operation on the morning of January 5, 2006. In other words, there is no
dispute that the inference jurors readily could have drawn from the prosecutor‘s
question was false. It therefore is dismaying that, after personally inspecting the
phone records and having an opportunity to contact the Sprint Nextel records
custodian, the prosecutor objected to the relief appellants sought; equally
dismaying that the court did not acknowledge its duty to take appropriate action.
We perforce conclude that the probative value of the phone records weighed
heavily in favor of granting the requested continuance. So, too, did each of the
other relevant factors. The likelihood that the records custodian would appear in
court was high; she manifested her cooperation by furnishing an affidavit and no
26
one questioned counsel‘s representation that she would appear by Wednesday.
There likewise is no question as to the diligence and good faith shown by English‘s
counsel, who immediately investigated the second cell phone number after the
prosecutor disclosed it and promptly shared the records for that number with the
prosecutor. For the reasons we already have given, the prejudice to the defense
from the denial of a continuance was substantial—a powerful defense argument
was unfairly deflated. Conversely, there was no reason to fear that the government
would have been prejudiced had the continuance been granted. Having injected
the second cell phone number into the trial, the government was in no position to
complain of the defense effort to address it.
Lastly, ―[n]eutralizing the misleading impression the prosecutor [had]
fostered would not have derailed the trial.‖29 The trial court erred in stating that
granting the continuance would mean delaying the trial for two days. Because
closing arguments did not begin until Tuesday afternoon, and Wednesday was a
holiday, allowing English to call the Sprint Nextel document custodian on
Thursday morning as his final witness would have delayed the proceedings by only
29
Woodard, 56 A.3d at 129.
27
half a day to a day at most.30 Under the circumstances, such a delay would have
been de minimis, and hardly a sufficient reason to refuse the continuance. It
certainly would not have been ―an unfair price to exact‖ to correct any
misimpression the prosecutor‘s questioning created in the minds of the jurors.31
We hold that the trial court exercised its discretion erroneously in denying
the continuance appellants requested. Given the closeness of the case (strikingly
manifested in the end by appellants‘ acquittals on the principal substantive charges
of murder and assault), the centrality of the testimony that the excluded evidence
would have refuted, and the court‘s rejection of the alternative corrective measures
the defense proposed (admission of the phone records without live testimony from
the custodian,32 an immediate and specific curative instruction), we cannot deem
the error harmless. Although Holmes was cross-examined vigorously and
30
There is no reason to suppose that such a brief delay would have
inconvenienced the jury. Indeed, because the witness‘s testimony would have been
predictably brief, there is every reason to think the jury would have been able to
begin its deliberations not much later on Thursday than it actually did.
31
Id.32
The court might have considered the option of allowing the defense to
introduce the phone records in evidence without testimony from the custodian
under the doctrine of ―curative admissibility‖ in order to correct the misimpression
implied by the prosecutor‘s question. See, e.g., Mercer v. United States, 724 A.2d
1176, 1192 (D.C. 1999).
28
impeached with his prior false statements to the police and his agreement to testify
against appellants in exchange for benefits at sentencing, the phone records were
the only hard proof that Holmes‘s in-court testimony was false.33 Had the jury
been persuaded of that by records proving Daniels never called Holmes on the
morning of January 5, 2006, it could well have disbelieved virtually everything
Holmes said regarding appellants‘ activities that morning and acquitted them of
both the conspiracy and the handgun charges—the only charges of which they
were found guilty. And while English‘s counsel eventually confronted the
implication of the prosecutor‘s question directly in her closing argument and
invoked the court‘s anticipated general instruction that suggestions in attorneys‘
questions are not evidence, those palliatives were not an adequate substitute for the
hard evidence the court excluded. We are not persuaded that they dispelled the
impact of the prosecutor‘s clear implication, which had been allowed to percolate
in the jurors‘ minds for an entire week without antidote.34 All things considered,
33
―We have held that even where a prosecution witness has been
‗substantially impeached,‘ the trial court‘s refusal to permit further and different
impeachment may warrant reversal of the defendant‘s conviction.‖ Bennett v.
United States, 797 A.2d 1251, 1258 (D.C. 2002).
34
Cf. Boyde v. California, 494 U.S. 370, 384 (1990) (―[A]rguments of
counsel generally carry less weight with a jury than do instructions from the
court.‖); Scott v. United States, 619 A.2d 917, 926 (D.C. 1993) (holding that a
prosecutor‘s improper questioning on cross-examination did not necessitate
(continued…)
29
we cannot be confident that the denial of a continuance to call the phone records
custodian did not substantially affect the jury‘s verdict.35
At trial, all three appellants joined in the request for a continuance and so
preserved their objection to the court‘s ruling. The denial of a continuance
affected all the appellants equally. On appeal, however, only English and Daniels
briefed the issue. We have no reason to imagine that Gilliam‘s failure to do so
reflected a deliberate strategic choice on his part. Had this court thought it useful,
we could have invited Gilliam to address the denial of a continuance in a
supplemental brief (in which case he surely would have aligned himself with his
co-appellants).36 There was no need to invite further briefing, however, as English
and Daniels presented us with a full exposition. The government, of course, has
(continued…)
reversal where, inter alia, the court gave an ―immediate‖ curative instruction
emphasizing that the questions were not evidence).
35
See Kotteakos v. United States, 328 U.S. 750, 765 (1946); Woodard, 56
A.3d at 129.
36
See Randolph v. United States, 882 A.2d 210, 226 (D.C. 2005) (―[N]o
matter whose ox is gored, this court has frequently requested post-argument
briefing of issues not adequately raised by counsel, to the end that, after both
parties have been fully heard, the court is in the best position to render a sound
decision.‖) (citing Watkins v. United States, 846 A.2d 293, 296 (D.C. 2004), and
Outlaw v. United States, 632 A.2d 408, 410-11 (D.C. 1993)).
30
had a full opportunity to respond and to defend the trial court‘s ruling on appeal.
And our analysis and holding that the court abused its discretion apply as much to
Gilliam as they do to his co-appellants.
For those reasons, we deem it in the interests of justice to reverse Gilliam‘s
convictions along with those of English and Daniels.37
B. Appellants’ Other Claims of Error
In view of our disposition of the preceding issue, we find it unnecessary to
decide whether some of appellants‘ other claims of error would entitle them to
relief; and in our view, none of the rest require extended discussion. We address
the latter claims first.
37
See, e.g., Walker v. United States, 982 A.2d 723, 738 (D.C. 2009)
(reversing convictions of two appellants for insufficiency of the government‘s
evidence, even though only one of the appellants challenged his convictions on that
ground); Jennings v. United States, 431 A.2d 552, 555 n.3 (D.C. 1981) (same).
31
1. Sufficiency of the Evidence to Support Gilliam’s CPWL
Conviction
Gilliam argues that the government failed to present sufficient evidence to
convict him of carrying a pistol without a license (―CPWL‖).38 Viewing the
evidence, as we must, in the light most favorable to the government,39 we disagree.
To convict Gilliam of CPWL, the government had to prove that he carried
an operable pistol without a license to do so.40 Three witnesses at trial put a gun in
Gilliam‘s hand: Holmes, who did not see it, but who heard Gilliam cock and load
a gun apparently given to him by English; and two of the witnesses to the Branch
Avenue shooting, who saw the passenger in Daniels‘s car reach out the window
and fire a gun he was holding in his hand. (From Holmes‘s testimony, the jury
could infer that the passenger in Daniels‘s car was Gilliam and that he brought the
gun he fired on Branch Avenue into the District.) The government also presented
38
We address this contention on its merits inasmuch as Gilliam‘s retrial on
the CPWL charge would be barred if the government‘s proof of that charge at his
first trial was insufficient.
39
Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc).
40
See Campos v. United States, 617 A.2d 185, 187 (D.C. 1992) (listing
elements of the offense). Subsequent amendments of the D.C. Code have
abolished the requirement that the pistol be operable. See D.C. Code §§ 7-2501.01(9), 7-2501.01 (12), & 22-4501 (6) (2012 Repl.).
32
competent and undisputed testimony that Gilliam was not licensed in the District
of Columbia to carry a pistol. This evidence was enough to permit a reasonable
jury to find beyond a reasonable doubt that Gilliam carried an operable gun in the
District of Columbia without a license.
For that gun to have been a ―pistol‖ for purposes of CPWL, its barrel had to
be less than 12 inches in length.41 Although Gilliam argues there was no testimony
about the barrel length of his weapon, the evidence allowed the jury to infer that it
was less than a foot.42 Holmes‘s testimony, that the weapon Gilliam was handling
in his SUV had been stowed with another handgun inside English‘s book bag and
was unobtrusive enough that Holmes could not see it, implied that it was a small
enough gun to be a pistol. The fact that witnesses saw the passenger in the green
car on Branch Avenue (i.e., Gilliam) shooting a gun that he held in one hand
sticking out the window also implied that the weapon was small enough to be a
pistol. We conclude that the evidence permitted a reasonable jury to convict
Gilliam of CPWL.
2. Daniels’s Second Amendment Claim
41
See former D.C. Code § 22-4501 (a) (2001).
42
See, e.g., Brown v. United States, 979 A.2d 630, 637-38 (D.C. 2009).
33
Daniels argues that because the jury acquitted him of the crimes committed
on 37th Street, it convicted him of CPWL only for carrying a handgun innocently
(albeit without a license) outside his home or place of business in the District of
Columbia. Moreover, he asserts, there is no evidence that he carried the handgun
in such a way as to conceal it from public view. Claiming that he had a Second
Amendment right to carry a handgun openly on the city‘s streets, and given that the
District‘s handgun ban at the time made it impossible for a citizen to obtain a
handgun license, Daniels argues that under Heller v. District of Columbia43 the
CPWL statute cannot constitutionally be applied to him.44 Daniels asserted his
Second Amendment claim in the trial court, which denied it in accordance with
then-governing precedent,45 so he preserved the claim for appellate consideration.
Our review is de novo.46
43
554 U.S. 570 (D.C. 2008).
44
Daniels‘s claim concerns the CPWL statute as it existed in 2006. It is
settled that this statute was not unconstitutional on its face. See Plummer v. United
States, 983 A.2d 323, 339 (D.C. 2009).
45
The trial was conducted prior to the Supreme Court‘s decision in Heller.
46
See Gamble v. United States, 30 A.3d 161, 164 n.6 (D.C. 2011). We
address this contention on its merits because, if Daniels is correct, the government
would be precluded from reprosecuting him for the offense on remand.
34
The Supreme Court has not declared that the Second Amendment guarantees
a right to carry a handgun openly outside the home.47 But if there is such a right,
it is ―not unlimited.‖48 As the Supreme Court emphasized, ―we do not read the
Second Amendment to protect the right of citizens to carry arms for any sort of
confrontation[.]‖49 Rather, the right recognized in the Second Amendment derives
from ―the inherent right of self-defense‖ (including, especially if not exclusively,
defense of the home).50 Thus, for Daniels (who was not at home) to have even a
colorable constitutional claim, he must be able to point to evidence that he carried
his handgun for legitimate self-defense.51 There is no such evidence in the record
of this case. Furthermore, in response to a jury note inquiring whether appellants
47
Cf. id. at 164-66 (holding that there is no Second Amendment right to
carry a concealed weapon).
48
Heller, 554 U.S. at 595.
49
Id.; see also id. at 626 (―Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was not a right to keep
and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.‖).
50
Id. at 628; see also Smith v. United States, 20 A.3d 759, 764 (D.C. 2011)
(noting that Heller‘s focus was on the right to use firearms ―in defense of hearth
and home‖) (internal quotation marks and emphasis omitted).
51
See Smith, 20 A.3d at 764 (holding that ―appellant‘s Second Amendment
contention [that he had a constitutional right to carry a firearm for innocent, work-
related reasons] fails‖ for want of ―indicia in the record‖ that he was carrying the
weapon for self-defense); see also Snell v. United States, 68 A.3d 689, 693 n.5
(continued…)
35
could be found guilty of CPWL for carrying pistols without a license in the Branch
Avenue incident or only in connection with the murder of Knight, the court
specifically instructed the jurors that ―with respect to [the CPWL counts], you may
not convict unless you find beyond a reasonable doubt that each defendant carried
a pistol without a license in the District of Columbia on January 5, 2006, in
connection with the homicide of Anthony Knight.‖ Because we presume that the
jury followed this instruction,52 we are confident that it found Daniels carried a
handgun in anticipation of committing a crime of violence, which clearly is not a
purpose protected by the Second Amendment.53 Daniels therefore has not shown
(continued…)
(D.C. 2013) (―In any case, there was no evidence that on July 4, 2010, Snell
carried a gun for the purpose of self-defense.‖); Kachalsky v. Cnty. of Westchester,
701 F.3d 81, 100 (2d Cir. 2012) (―In light of the state‘s considerable authority—
enshrined within the Second Amendment—to regulate firearm possession in
public, requiring a showing that there is an objective threat to a person‘s safety—a
‗special need for self-protection‘—before granting a carry license is entirely
consistent with the right to bear arms. Indeed, there is no right to engage in self-
defense with a firearm until the objective circumstances justify the use of deadly
force.‖).
52
―[W]e must presume that a jury follows the court‘s instructions, absent
any indication to the contrary.‖ Daniels v. United States, 2 A.3d 250, 264 (D.C.
2010) (internal quotation marks omitted).
53
See United States v. Greeno, 679 F.3d 510, 520 (6th Cir. 2012) (stating
that ―[n]othing in Heller, the common law, or early case law suggests‖ that ―the
Second Amendment protects an individual‘s right to possess a weapon for criminal
purposes‖).
36
that the Second Amendment prohibits the application of the CPWL statute to his
conduct on the morning of January 5, 2006.
3. Jury Instruction Regarding the Conspiracy Charge
Gilliam and English have argued that the trial court improperly allowed the
jury to convict them for conspiracy based solely on acts occurring outside the
District of Columbia over which (they contend) the Superior Court lacked
jurisdiction. Although we are reversing their conspiracy convictions on another
ground, the trial court likely will need to deal with the issue appellants have raised
in the event of a retrial. We therefore address the issue briefly.
Under D.C. law, a conspiracy requires proof of both agreement and action:
an agreement to commit a criminal offense and, ―during the life of the conspiracy,
and in furtherance of its objective, the commission by at least one conspirator of at
least one of the overt acts specified in the indictment.‖54 The indictments in this
case charged that appellants entered into an agreement within the District of
Columbia to murder Anthony Knight, and that on the morning of January 5, 2006,
they committed nine overt acts during and in furtherance of that conspiracy—four
54
Gibson v. United States, 700 A.2d 776, 779 (D.C. 1997).
37
acts in Maryland (each relating to the Branch Avenue shooting) and five acts in the
District (each relating to the shooting on 37th Street).55
The problem of which appellants complain materialized for two reasons:
First, as the government tacitly conceded, there was no evidence that appellants
entered into any conspiracy before they met up on the night of January 4, 2006, at
the Tradewinds Club in Maryland.56 Rather, as the prosecutor said in her opening,
the government‘s theory at trial was that the conspiracy began when appellants
55
Specifically, the indictments alleged the following four overt acts in
Maryland: (1) after encountering Knight at a Maryland nightclub, Daniels
positioned his car next to a gold Cadillac identical to the one Knight was driving,
as it was stopped at a red light on Branch Avenue at Silver Hill Road in Suitland,
Maryland; (2) Gilliam, the front seat passenger in Daniels‘s car, discharged a
firearm at the gold Cadillac; (3) English exited Holmes‘s Tahoe and opened fire on
the gold Cadillac as it attempted to escape; and (4) Daniels and Gilliam chased the
Cadillac for several blocks on Silver Hill Road. The indictments charged five
overt acts in the District of Columbia: (5) English and Gilliam thereafter went to
English‘s home at 1730 A Street S.E. to retrieve more weapons while Holmes and
Daniels, who were already armed, waited outside; (6) Holmes then drove
appellants to 37th Street in his Tahoe to continue looking for Knight; (7) English
identified Knight standing in the street in the 400 block of 37th Street, and
appellants and Holmes fired handguns at Knight and his companions; (8) Holmes
then drove appellants away while appellants reloaded their weapons; and (9) after
leaving the scene, appellants and Holmes cleaned out the Tahoe, removing and
discarding firearms evidence found in the vehicle.
56
For this reason, the trial court ruled that statements made by appellants
before they visited the Tradewinds Club on January 4, 2006, would not be
admissible under the co-conspirator exception to the rule against hearsay.
38
arrived at the intersection of Branch Avenue and Silver Hill Road. Nor did the
government contend that an agreement was made or renewed thereafter in the
District of Columbia. Second, the court instructed the jury on all nine of the
charged overt acts—the ones committed in Maryland as well as those committed in
the District of Columbia—and stated that proof of any one of them would support a
conviction for conspiracy.57 As a result, the jury could have convicted appellants
of conspiracy based solely on a finding that they entered into an agreement in
Maryland and that they committed an overt act in Maryland—i.e., without finding
any conspiratorial agreement made or joined, or overt act committed, within the
District of Columbia.58 Which overt act or acts the jury actually found to have
57
Thus, after enumerating the overt acts, the court instructed that
The Government need not prove that all of these overt
acts were taken. But in order to find the defendants
guilty, you must all agree on at least one overt act that
was done. . . . For any defendant to be convicted of the
crime of conspiracy, the Government must prove . . . that
one of the people involved in the conspiracy did one of
the overt acts charged.
Appellants did not object to this instruction or request the court to instruct the jury
that it would need to find at least one of the overt acts allegedly committed in the
District of Columbia.
58
Although, as mentioned earlier, the court instructed the jury that it had to
find that appellants carried pistols in the District of Columbia in connection with
Knight‘s homicide to convict them of CPWL, the court gave no comparable
instruction with respect to the conspiracy count; and because simply carrying a
(continued…)
39
been committed is unknown, as the verdict was a general one, but since the jury
acquitted appellants of all the offenses on 37th Street, it is plausible that the jury
may have relied solely on overt acts in Maryland in convicting appellants of
conspiracy.
The criminal conspiracy statute, D.C. Code § 22-1805a, specifically
addresses the situation when the alleged conspiratorial agreement was not made in
the District of Columbia.59 Subsection (d) provides that
[a] conspiracy contrived in another jurisdiction to engage
in conduct within the District of Columbia which would
constitute a criminal offense under an act of Congress
(continued…)
pistol in the District was not charged as an overt act in furtherance of the
conspiracy, we cannot say that appellants‘ convictions on the CPWL counts mean
the jury necessarily found that they committed one of the charged overt acts in the
District. The acquittals on the substantive counts may be understood to suggest
otherwise.
59
The statute also addresses the situation, not presented in this case, in
which ―the object of a conspiracy contrived within the District of Columbia is to
engage in conduct in a jurisdiction outside the District of Columbia which would
constitute a criminal offense under an act of Congress applicable exclusively to the
District of Columbia if performed therein‖; such a conspiracy is a violation of the
statute if ―(1) [s]uch conduct would also constitute a crime under the laws of the
other jurisdiction if performed therein; or (2) [s]uch conduct would constitute a
criminal offense under an act of Congress exclusively applicable to the District of
Columbia even if performed outside the District of Columbia.‖ D.C. Code § 22-
1805a (c).
40
exclusively applicable to the District of Columbia if
performed in the District of Columbia is a violation of
this section when an overt act pursuant to the conspiracy
is committed within the District of Columbia.[60]
We understand this provision to mean that when a prosecution for conspiracy is
predicated on an agreement made in another jurisdiction, the government must
prove that an overt act pursuant to the conspiracy was committed within the
District of Columbia in order to prove the offense. This statutory requirement was
overlooked in the present proceedings; the trial court was not asked to instruct the
jury in accordance with subsection (d), and it did not do so.
Subsection (d) should be borne in mind if appellants are retried for
conspiracy to murder Anthony Knight and the theory of the prosecution remains
the same (i.e., that the conspiratorial agreement was ―contrived‖ in Maryland). In
that event, to comply with subsection (d) and avoid the possibility of a jury verdict
based on an improper theory of liability,61 the trial court should focus the jury on
60
D.C. Code § 22-1805a (d) (emphasis added).
61
See Coghill v. United States, 982 A.2d 802, 808 (D.C. 2009)
(―[W]henever various alternative theories of liability are submitted to a jury, any
one of which is later determined to be improper, the conviction cannot be
sustained.‖) (internal quotation marks omitted); see also Chiarella v. United States,
445 U.S. 222, 237 n.21 (1980) (―We may not uphold a criminal conviction if it is
impossible to ascertain whether the defendant has been punished for noncriminal
(continued…)
41
the five overt acts that allegedly were committed after appellants returned to the
District of Columbia. The court should instruct the jury specifically that it must
find that one of the conspirators committed at least one of those five overt acts in
order to find a defendant guilty of conspiracy.
4. Remaining Claims of Error
Appellant‘s remaining claims of error relate to rulings by the trial court with
respect to the admission or exclusion of evidence and the denial of a mistrial for
alleged prosecutorial misconduct. First, Daniels and Gilliam argue that the court
erred in admitting certain out-of-court statements recounted by Holmes—notably,
English‘s statement that, when he ran out of bullets, Daniels and Gilliam were
―right there to finish [Knight] off,‖ which the court ruled admissible against them
under the co-conspirator exception to the hearsay rule.62 Appellants contend the
(continued…)
conduct.‖); Yates v. United States, 354 U.S. 298, 312 (1957) (―[W]e think the
proper rule to be applied is that which requires a verdict to be set aside in cases
where the verdict is supportable on one ground, but not on another, and it is
impossible to tell which ground the jury selected.‖); cf. Griffin v. United States,
502 U.S. 46, 59 (1991) (adhering to rule of Yates but not extending it to situations
where one possible basis of conviction was neither unconstitutional nor illegal, but
merely unsupported by sufficient evidence).
62
See Butler v. United States, 481 A.2d 431, 439 (D.C. 1984).
42
statement was not made in the course of and in furtherance of the alleged
conspiracy, as the hearsay exception requires.63
Second, English claims the trial court erred by precluding him from cross-
examining Holmes about Knight‘s alleged assault on Damian Turner. English
contends the questioning should have been permitted to explore Holmes‘s possible
motive to falsely implicate him in order to protect Turner from suspicion,64 and
because evidence of the assault would have supported a third-party perpetrator
defense.65
Lastly, Daniels and Gilliam claim the trial court should have granted their
motions for a mistrial after the prosecutor, in her opening statement and closing
argument, allegedly made an improper appeal to the emotions and passions of the
jury.66
63
See Williams v. United States, 655 A.2d 310, 313 (D.C. 1995).
64
See Hager v. United States, 791 A.2d 911, 914 (D.C. 2002); Newman v.
United States, 705 A.2d 246, 251-54 (D.C. 1997); Jolly v. United States, 704 A.2d
855, 860 (D.C. 1997).
65
See Winfield v. United States, 676 A.2d 1, 4-5 (D.C. 1996) (en banc).
66
See Daniels v. United States, 2 A.3d 250, 263 (D.C. 2010).
43
Because we reverse appellants‘ convictions on a different ground, it is
unnecessary for us to reach these claims of error. We consider it inadvisable to do
so because the issues appellants raise may not arise at all in any retrial and, if they
do, it may be on a materially different factual record that we cannot predict. The
legal principles that would guide the trial court if the issues arise in a future trial
are well established; only the application of those principles to the particular (as
yet unknown) factual context would need to be determined. Consequently, a
discussion of appellants‘ claims now would have little utility.
III. Conclusion
For the reasons we have explained, we reverse appellants‘ convictions and
remand their cases to the Superior Court for a possible new trial.67
So ordered.
67
In remanding for a new trial, we express no opinion with respect to
whether principles of collateral estoppel will preclude relitigation of issues
determined by appellants‘ acquittals on the murder, assault, and related firearms
charges arising out of the 37th Street shootings. Compare Thomas v. United
States, No. 11-CF-412, 2013 D.C. App. LEXIS 682 (D.C. Oct. 24, 2013), with
Evans v. United States, 987 A.2d 1138 (D.C. 2010).