Michael D. Tann v. United States , 127 A.3d 400 ( 2015 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 09-CF-1438, 10-CF-54, 09-CF-1439, 10-CF-55, 09-CF-1450,
09-CF-1469, 09-CF-1482, 09-CF-1483, & 10-CF-120
MICHAEL D. TANN, LANNELL COOPER, ANTONIO ARNETTE, JAMES RUSHING,
SAQUAWN HARRIS, and DAJUAN D. BEAVER, APPELLANTS,
v.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF1-22807-07, CF1-22940-07, CF1-22893-07,
CF1-3359-08, CF1-22962-07, & CF1-22967-07)
(Hon. Henry F. Greene, Trial Judge)
(Argued March 25, 2014 Decided November 19, 2015)
Judith A. Lovelace for appellant Tann.
Thomas T. Heslep for appellant Cooper.
Deborah A. Persico for appellant Arnette.
Steven R. Kiersh for appellant Rushing.
Christopher Kemmitt, Public Defender Service, with whom James Klein,
Public Defender Service, was on the brief, for appellant Harris.
Stephen W. Riddell for appellant Beaver.
2
Elizabeth Gabriel, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, Laura Bach, and John Giovanelli, Assistant United
States Attorneys, were on the brief, for appellee.
Before GLICKMAN, BLACKBURNE-RIGSBY, and THOMPSON, Associate
Judges.
Opinion for the court per curiam.
Opinion by Associate Judge GLICKMAN, concurring in part and dissenting in
part, at page 213.
PER CURIAM: After a nine-month jury trial, the six appellants in this case
were convicted of conspiracy and a string of violent crimes, including homicides,
that were committed in connection with their membership in a gang known as the
22nd Street Crew. They raise numerous challenges to their convictions in these
consolidated appeals. With a few exceptions, however, we affirm the judgments of
the Superior Court.
In view of the length of this opinion, before commencing our discussion of
the proceedings below and appellants‘ claims, we set forth the following table of
contents as an aid to the reader.
Table of Contents
I. The Leslie Jones Murder ............................................................................................7
II. The Terrence Jones Murder and Richard Queen Assault ..........................................8
III. The James Taylor Murder and Bernard Mackey Assault ..........................................10
IV. The Laquanda Johnson Murder and Keisha Frost Assault ........................................12
V. Obstruction of Justice – Witness Intimidation and Manipulation .............................15
3
VI. Procedural Developments ..........................................................................................16
VII. Claims Concerning the Sufficiency of the Evidence .................................................19
A. Conspiracy .....................................................................................................19
1. Antonio Arnette ....................................................................................25
2. Dajuan Beaver .......................................................................................27
3. Lannell Cooper......................................................................................28
4. Saquawn Harris .....................................................................................29
5. James Rushing ......................................................................................30
6. Michael Tann ........................................................................................31
B. Terrence Jones-Richard Queen Incident ........................................................35
1. Tann‘s Convictions: Second-Degree Murder While
Armed of Terrence Jones, Armed Robbery of Richard
Queen, and Possession of a Firearm During the
Commission of a Crime of Violence (―PFCV‖) ...................................35
2. Arnette‘s Convictions: Second-Degree Murder While
Armed of Terrence Jones, Armed Robbery of
Richard Queen, and PFCV ....................................................................42
C. James Taylor-Bernard Mackey Incident ........................................................50
1. The Government‘s Argument ...............................................................56
2. Appellant‘s Argument ...........................................................................58
3. Analysis.................................................................................................60
D. Beaver‘s Conviction: Obstruction of Justice .................................................87
E. Beaver‘s Conviction: Carrying a Pistol Without a License (―CPWL‖) ........94
F. Cooper‘s Conviction: Laquanda Johnson Murder Under Pinkerton .............98
VIII. Procedural and Evidentiary Issues Related to the Conspiracy
And Appellants‘ Joint Trial .......................................................................................103
A. Cooper‘s Prior Convictions............................................................................103
1. Error in Admitting Cooper‘s Convictions Against
Tann and Arnette...................................................................................106
2. Harmlessness.........................................................................................110
3. Admission Against Cooper ...................................................................114
B. Tann‘s Severance Argument Unrelated to Cooper‘s
Prior Conviction .............................................................................................115
C. Laquanda Johnson‘s Statements Admitted Under a
Forfeiture-by-Wrongdoing Theory ................................................................117
D. The Trial Court‘s Finding of a Predicate Conspiracy ....................................121
E. Rap Lyrics and Beaver‘s Webpage ................................................................125
1. Authorship of the Rap Lyrics on the CD ..............................................127
2. Whether Michael Smith was a Co-conspirator .....................................129
3. Statements in Furtherance of Conspiracy .............................................130
4. Unfair Prejudice ....................................................................................133
F. Tann‘s Outburst .............................................................................................135
4
IX. Pretrial and Trial Issues Unrelated to the Conspiracy or Joint Trial..........................143
A. Evidentiary Issues ..........................................................................................143
1. Search of Beaver‘s Jail Cell ..................................................................143
2. Evidence of Uncharged Misconduct, Incarceration, and Fear
Testimony ............................................................................................149
a. Testimony of Andre McDuffie ......................................................149
b. Testimony of Darryl Travers .........................................................155
3. Evidentiary Rulings During Cooper‘s Case-in-Chief ...........................157
a. Statements by Tamika Bradshaw ..................................................157
b. Statements by Laquanda Johnson..................................................159
c. Statements by Cooper to Brandon Elzie........................................160
4. Admission of Tann‘s Videotaped Statement ........................................162
B. Instructional Issues.........................................................................................163
1. Obstruction of Justice Instruction .........................................................163
2. Lesser-Included Offense Instruction: Relationship
Between Felony and Second-Degree Murder .......................................173
3. Attitude and Conduct Instruction ..........................................................175
C. Closing and Rebuttal Argument.....................................................................176
1. Government‘s Closing Argument .........................................................176
2. Government‘s Rebuttal Argument ........................................................179
3. Analysis.................................................................................................182
D. Discovery .......................................................................................................186
1. Loss of Cooper‘s Jail Phone Calls ........................................................186
2. Dewey Chappel .....................................................................................191
3. Kyara Johnson .......................................................................................196
E. Grand Jury Claims .........................................................................................199
1. Pre-Indictment.......................................................................................203
2. Post-Indictment .....................................................................................206
X. Merger ...............................................................................................................208
XI. Conclusion ............................................................................................................212
The government presented evidence at appellants‘ trial showing that there was
a criminal street gang operating in the area of 22nd Street, Southeast, Washington,
D.C. The investigation of this gang revealed a violent, drug-trafficking organization
functioning in the blocks of 22nd Street that sat between Southern Avenue and
Savannah Street, and influencing areas around the gang‘s base of operations. The
5
goals of the organization were centered on the purchase, storage, packaging, and
resale for profit, of illegal drugs within the community.
Members of the gang committed numerous criminal acts in an effort to
protect the territory of the gang and integrity of its operations. This misconduct
took the form of acts of violence designed to safeguard the organization. Often,
the violence was directed at perceived rivals who might threaten the gang‘s
territory and drug trade or witnesses who might undermine its operations through
cooperation with law enforcement.
The gang was called various names, including the ―22nd Street Crew,‖ ―The
Deuce,‖ ―Deuce-Deuce,‖ ―Shipley Market,‖ ―Young Gunz,‖ and ―Deuce Squad
Mafia.‖ For simplicity, it will be referred to in this opinion as the ―22nd Street
Crew.‖ The 22nd Street Crew had a loose rank structure wherein members would
play different roles according to the level of authority and respect they had gained
over time through demonstrations of loyalty to the gang. Members that had
achieved a sufficient level of respect would be referred to as ―OGs‖ or ―original
gangsters.‖ More junior members were labeled ―baby gangsters‖ or ―little locs.‖
6
The government‘s evidence tended to demonstrate the involvement of all six
appellants in the 22nd Street Crew. Lannell Cooper had been part of the 22nd
Street Crew since the 1990s and achieved an unmatched level of authority within
the gang. Michael Tann was part of the gang for a similar period and was close
behind Cooper in the hierarchy. James Rushing, Dajuan Beaver, and Antonio
Arnette carried less weight in the organization; however, evidence was presented
showing their long-standing involvement in the 22nd Street Crew and its operation.
Saquawn Harris was a newer member, having been introduced by another high-
ranking gang member.
The indictment in this case charged the six appellants with conspiracy and
with committing serious acts of violence as part of their participation in the 22nd
Street Crew. Specifically, the indictment articulated that each appellant entered
into a conspiracy to ―knowingly and willfully . . . agree together to obstruct justice
and to assault and kill anyone whose interests were contrary to those of
[appellants] and their associates.‖ In a nine-month joint trial of appellants from
November 2008 to July 2009, the government endeavored also to show that four
murders were committed, as part of the charged conspiracy, at or near 22nd Street
between 2003 and 2006. The government contended that these murders were
7
directed toward maintaining the turf and authority of the 22nd Street Crew, either
by eliminating perceived rivals or killing government witnesses. Each appellant
was involved in at least one of these murders; appellant Tann was alleged to have
played a role in three of the four. The essential facts of each major incident are
briefly recited here.
I. The Leslie Jones Murder
Leslie Jones was a drug dealer who sold his product near 22nd Street,
specifically in the Shipley Market area. He had a long-running feud with Tann that
revolved around competition for drug sales and a prior incident in which one of his
relatives assaulted Tann and had stolen his weapon.
On the evening of April 11, 2003, Tann attended a small party with his
future wife Tracey at his cousin‘s house in Southeast, Washington, D.C. At some
point during the evening, Tann told Tracey that he was going to 22nd Street and
left the party. Tann found Leslie Jones at a pay phone near Shipley Market and
shot him from behind. 22nd Street Crew member Alphonce Little was an
eyewitness to the murder. Another witness, Tyrone Curry, heard the gunfire and
saw Tann running away from the scene of the crime. Tann later confessed to
8
Tracey, and another 22nd Street Crew member named Donald Matthews, that he
had committed the murder.
II. The Terrence Jones Murder and Richard Queen Assault
The murder of Terrence Jones on April 17, 2004, began with an argument on
22nd Street between gang member Donald Matthews and a 22nd Street resident,
Kyara Johnson, apparently about the type of liquor that was to be served at Kyara‘s
birthday party. The verbal quarrel threatened to become violent before it was
broken up by Kyara‘s sister, Shaunta Armstrong. Shaunta called her close friend
Terrence Jones and asked him to come to 22nd Street to make sure that the
situation was under control. Terrence Jones went to 22nd Street with his friend,
Richard Queen. Terrence Jones approached Matthews and had a brief conversation
with him. Matthews explained that he ―just had an argument [with Kyara] but it
wasn‘t nothing.‖ Witnesses reported that their interaction ended peacefully and
without incident.
According to Kyara Johnson, appellant Arnette learned of the exchange
between Donald Matthews and Terrence Jones and yelled, ―Doe‖ [referring to
appellant Cooper] Kyara heard Cooper respond, ―Where at?‖ Shaunta Armstrong
9
then heard someone (believed to be Cooper) ask, ―Squirt [appellant Arnette‘s
nickname], who‘s faking?‖ Arnette nodded in the direction of Terrence Jones and
Richard Queen and told Cooper to go up the street with his ―hammer,‖ which was
the street name for a gun. Cooper approached Terrence Jones and pointed a gun at
him while Arnette hit Terrence Jones with his hands. Then, according to several
witnesses, Cooper said words to the effect of ―Pat them niggers‘ pockets.‖
Arnette proceeded to pat Terrence Jones‘s pockets and hit him in the face.
Witnesses stated that at some point Terrence Jones resisted by hitting Cooper, and
Cooper shot him in response. When Terrence Jones tried to crawl away, Cooper
shot him again.
Witnesses further testified that at approximately the same time as Terrence
Jones was under attack, appellant Tann and other unidentified males appeared,
pinned Richard Queen against a car, and began beating him and going through his
pockets. According to Donald Matthews, Tann picked up a gun off the ground in
the midst of the fight with Queen and shot him in the back as he tried to run away,
wounding Queen but not badly enough to prevent his escape. Several days later,
Tann told Matthews that he had shot Queen. At trial, Queen testified that his
assailants had stolen cash and cigars that he was carrying that night.
10
III. The James Taylor Murder and Bernard Mackey Assault
A third murder occurred on 22nd Street a little over two years later, in the
early evening of May 4, 2006. Again, the events were precipitated by an
argument. This time it was a disagreement between Omar Harrison and Ashley
Tyndle during which Harrison may have struck Tyndle. Harrison was an outsider
to 22nd Street, and Tyndle was the girlfriend of gang member Alphonce Little.
As the dispute climaxed, Harrison made reference to his lack of fear of Little
by telling Tyndle to ―go get your baby[‘s] father‖ or words to that effect. At the
time of the argument between Harrison and Tyndle, various members of the 22nd
Street Crew were dispersed in different places on 22nd Street; one witness testified
that one ―little crew,‖ including appellants Tann and Harris, as well as Little and
several other gang members, was gathered near a basketball court. When word of
the Harrison-Tyndle dispute, and Harrison‘s challenge to Little, spread by word of
mouth to the gang, Little, Harris, Tann, and other gang members raced toward
Harrison from different directions on 22nd Street.
11
Then, multiple witnesses saw Harris and Tann open fire at Omar Harrison.
Seven witnesses testified that they saw Harris shooting. Four witnesses saw Tann
shooting. One witness testified that between five and ten gang members were
shooting en masse with Tann and Harris although this testimony was conflicting.
Two witnesses testified to seeing gang member Antonio Blaylock with a gun
drawn during the incident. According to another witness, ―a lot of people‖ in
addition to Tann and Harris were shooting.
Alphonce Little, who denied firing a weapon, stated that immediately after
the first waves of gunfire ended, he heard a separate set of gunshots coming from
another location ―across the street.‖ These shots were fired by Robert Foreman,
who Little testified was a very junior member of the 22nd Street Crew. Foreman
saw and heard Tann and Harris firing at Harrison, felt compelled to join in the
attack, and started shooting as well.
Once the firing started, Omar Harrison jumped into his truck and drove away
safely. However, James Taylor, a 22nd Street resident who had been standing near
Harrison‘s truck, was hit by a bullet in the head and died. Bernard Mackey,
12
another innocent bystander, was also standing nearby and was grazed by a bullet in
the back.
Alphonce Little ran with appellant Harris to the house of Harris‘s girlfriend
and watched him pack his bags in preparation to go into hiding. Robert Foreman
found Harris and Little at Harris‘s girlfriend‘s house. Little testified that Foreman
told Harris and Little that he believed he had fired the shot that killed James
Taylor. There was no evidence to show that either Harris or Tann, although aware
of each other‘s role in the shooting and the presence of other gang members during
the event, knew of Foreman‘s involvement in the murder. Following the incident,
Harris fled the area and lived in disguise for several weeks until his arrest.
IV. The Laquanda Johnson Murder and Keisha Frost Assault
Notably for purposes of this appeal, appellant Cooper was tried for and
convicted of the murder of Terrence Jones in 2006. At the time of the instant
2008-2009 trial of the appellants in this case, Cooper was serving a lengthy prison
sentence for that crime. At Cooper‘s 2006 trial, the government listed Kyara
Johnson and her older sister, Laquanda Johnson, as potential witnesses. Kyara
testified about Cooper‘s shooting of Terrence Jones following her argument with
13
Matthews. Laquanda was not an eyewitness to the Terrence Jones murder;
however, Cooper had made several incriminating statements to her in the aftermath
of that incident. Ultimately, Laquanda did not testify at the 2006 trial, but she
could be seen at the courthouse during the trial supporting her sister. Laquanda
was protective of her younger sister and was known by reputation to be a
―gatekeeper‖ for those seeking access to Kyara.
Cooper was convicted at the end of June 2006. Approximately two weeks
later, in the early morning of July 11, 2006, the sisters (who had been relocated
from 22nd Street because of Cooper‘s trial) returned to 22nd Street to visit friends.
Appellant Beaver saw the sisters and told Alphonce Little that they were back.
Little investigated their presence and confirmed that the sisters were hanging out at
a 22nd Street house with Keisha Frost, Laquanda Johnson‘s friend. Beaver and
Little met with Dwayne Wright, another 22nd Street Crew member. The three
men discussed the sisters and agreed that they ―got to go‖ – meaning that they
should be killed – because of their cooperation with the government. Beaver and
Little further discussed which one of them was going to do the killing. Beaver,
arguing that he had already done his duty to the gang by testifying in Cooper‘s
defense at his 2006 trial, persuaded Little that he had an obligation to eliminate the
14
Johnson sisters. Wright retrieved a gun for Little, and Beaver gave Little a pair of
sunglasses as a partial disguise. Preparations were completed when Little secured
a ―hoodie‖ from Robert Foreman, and an escape route from appellant Rushing,
who agreed to drive Little and Beaver away from the scene of the anticipated
shooting.
Alphonce Little walked up to the house where he had seen the Johnson
sisters. Kyara Johnson was inside, but Laquanda was on the porch with Keisha
Frost. Little opened fire and shot both women, believing that Keisha was Kyara.
Laquanda died, but Keisha lived. Kyara, looking out of an upstairs window,
witnessed the shooting. Little ran away from the scene toward 23rd Street and
Southern Avenue. Rushing collected Little and Beaver in his car and instructed
Little to get rid of the hoodie. Beaver directed the gang members to his mother‘s
house in Maryland where he hid the gun that Dwayne Wright had given Little to
commit the murder.
15
V. Obstruction of Justice – Witness Intimidation and Manipulation
In the aftermath of these incidents, several appellants, and other gang
members, approached witnesses in efforts to prevent their cooperation with law
enforcement. Karen Bolling, the mother of Laquanda and Kyara Johnson, testified
that while appellant Cooper was still on the street, he approached Laquanda and
offered her drugs and money if she would keep Kyara off the stand during his 2006
trial for the murder of Terrence Jones.
After his arrest, Cooper sent out overtures from prison to numerous
individuals in an effort to have them persuade (by force if necessary) the Johnson
sisters and others not to testify against him. Cooper reached out to members of an
allied street gang on 17th Street, including Brian Gilliam and Tyrell Hargraves, to
have them search 22nd Street for Kyara. Gang member Travis Honesty and gang
ally Dewey Chappell also testified that Cooper, from jail, instructed them and
others (including appellants Tann, Beaver, Harris, Rushing, and gang member
Alphonce Little) to find the sisters at various points. Karen Bolling also testified
that after Cooper was arrested, Laquanda implored her not to let Kyara testify
against Cooper, explaining that Tann had ―talked to [Cooper]‖ and that ―[Cooper]
wanted to know was [Laquanda] going to help him by not letting her sister testify.‖
16
Tann approached other witnesses after the James Taylor-Bernard Mackey
incident. He threatened Zartia Anderson, the sister of witnesses to the James
Taylor murder, and stated that he was going to ―straighten things out‖ regarding
their cooperation with the government. Tann also confronted Donnise Harris,
another James Taylor murder witness, and urged her to testify falsely that appellant
Harris (no relation to Donnise Harris) had not been involved in the incident.
VI. Procedural Developments
A grand jury investigating these criminal activities in the area of 22nd Street
handed down its original indictment in September 2007. A second grand jury
followed with a superseding indictment in February 2008. The superseding
indictment charged appellants with conspiring ―to obstruct justice and to assault
and kill anyone whose interests were contrary to those of [appellants] and their
associates,‖ and numerous crimes related to that overall conspiracy, including
involvement in the four murders described above. The jury returned general
17
verdicts against all six appellants, finding each guilty of conspiracy.1 In addition,
each appellant was convicted on multiple other counts, as follows:
Tann was convicted of first-degree premeditated murder while armed2 of
both Leslie Jones and James Taylor, second-degree murder while armed3 of
Terrence Jones, armed robbery4 and assault with intent to kill while armed5
(―AWIKWA‖) of Richard Queen, AWIKWA of Bernard Mackey, two counts of
obstruction of justice,6 one count of threatening a person,7 and a host of weapons
offenses8 related to these underlying crimes. Harris was convicted of first-degree
premeditated murder while armed of James Taylor, AWIKWA of Bernard
Mackey, and several related weapons offenses. Beaver was convicted of first-
1
D.C. Code § 22-1805a (2012 Repl.).
2
D.C. Code §§ 22-2101, -4502 (2012 Repl.).
3
D.C. Code §§ 22-2103, -4502 (2012 Repl.).
4
D.C. Code §§ 22-2801, -4502 (2012 Repl.).
5
D.C. Code §§ 22-401, -4502 (2012 Repl.).
6
D.C. Code § 22-722 (2012 Repl.).
7
D.C. Code § 22-1810 (2012 Repl.).
8
D.C. Code § 22-4504 (a), (b) (2012 Repl.).
18
degree premeditated murder while armed of Laquanda Johnson, assault with a
dangerous weapon9 (―ADW‖) of Keisha Frost, and obstruction of justice, carrying
a pistol without a license, unlawful possession of a firearm in connection with that
event. He was also convicted of an additional count of obstruction of justice
related to his prior attempts to influence the testimony of the Johnson sisters.
Cooper was convicted of first-degree premeditated murder while armed of
Laquanda Johnson and ADW of Keisha Frost on a conspiracy theory of liability
pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). He was also
convicted on two counts of obstruction of justice related to the Johnson sisters and
several weapons offenses. Rushing was convicted of first-degree premeditated
murder while armed of Laquanda Johnson, ADW of Keisha Frost, and obstruction
of justice and weapons offenses related to that shooting. Finally, Arnette was
convicted of second-degree murder while armed of Terrence Jones, armed robbery
of Richard Queen, and weapons offenses related to that incident.
Appellants followed with these appeals. In our discussion of their manifold
claims of error, we first analyze the claims relating to the sufficiency of the
government‘s evidence. Next, we deal with procedural and evidentiary issues
9
D.C. Code § 22-402 (2012 Repl.).
19
affected by the alleged conspiracy and flowing from appellants‘ joint trial. Then,
we address pretrial and trial matters not directly tied into the conspiracy or
appellants‘ joinder. We conclude with our merger analysis and instructions to the
trial court upon remand.
VII. Claims Concerning the Sufficiency of the Evidence
A. Conspiracy
Appellants argue that the evidence failed to establish their membership in
the single conspiracy charged by the superseding indictment.10 Instead, they
contend, the evidence merely established, at best, only several short-term and
discrete conspiracies, and the trial judge erred in failing to grant their motions for
judgment of acquittal (―MJOA‖) as to the conspiracy count. ―The standard by
which we review a denial of a MJOA is de novo, and we, like the trial court,
determine whether the evidence, viewed in the light most favorable to the
government, was such that a reasonable juror could find guilt beyond a reasonable
10
All appellants challenge the sufficiency of the evidence showing a single
conspiracy. Only Tann and Arnette make specific arguments about their
membership in the conspiracy. In order to ensure a comprehensive review of
appellants‘ claims, we will consider the sufficiency of the evidence as to the
membership of each defendant in the single conspiracy charged by the indictment.
20
doubt.‖ (Vashon) Howard v. United States, 867 A.2d 967, 972 (D.C. 2005)
(internal quotation marks and alterations omitted).
―To prove conspiracy, the government must establish that an agreement
existed between two or more people to commit a criminal offense; that the
defendant[s] knowingly and voluntarily participated in the agreement, intending to
commit a criminal objective; and that, in furtherance of and during the conspiracy,
a co-conspirator committed at least one overt act.‖ Hairston v. United States, 905
A.2d 765, 784 (D.C. 2006) (internal quotation marks omitted). ―A conspiratorial
agreement may be inferred from circumstances that include the conduct of
defendants in mutually carrying out a common illegal purpose, the nature of the act
done, the relationship of the parties and the interests of the alleged conspirators.‖
Castillo-Campos v. United States, 987 A.2d 476, 483 (D.C. 2010) (internal
quotation marks and alterations omitted). Gang membership may be circumstantial
evidence probative of the offense of conspiracy. Id. (citing Perez v. United States,
968 A.2d 39, 82-83 (D.C. 2009)).
―In determining whether the evidence supports a finding of a single
conspiracy, the court looks at whether the defendants shared a common goal, any
21
interdependence between the alleged participants and any overlap among the
alleged participants.‖ McCullough v. United States, 827 A.2d 48, 60 (D.C. 2003).
―The existence of a single conspiracy or multiple conspiracies is primarily a
question of fact for the jury.‖ Hairston, 905 A.2d at 784 (quoting United States v.
Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988)).
The superseding indictment charged that between April 2003 and July 2006,
appellants and others conspired as follows:
[D]efendants Lannell N. Cooper . . . Stephen R. Gray . . .
Michael D. Tann . . . Antonio D. Arnette . . . Saquawn L.
Harris . . . Robert J. Foreman . . . Brian K. Gilliam . . .
Dwayne A. Wright . . . James E. Rushing . . . [and
Dajuan D. Beaver],[11] and other persons whose identities
are both known and unknown to the grand jury, did
knowingly and willfully combine, conspire, confederate,
and agree together to obstruct justice and to assault and
kill anyone whose interests were contrary to those of the
defendants and their associates, in violation of 22 D.C.
Code Sections 401, 402, 722, 2101.
11
The charges against appellant Beaver were included in the original
September 2007 indictment, but were not included in the superseding indictment
issued in February 2008. Prior to trial in this case, the government moved to rejoin
Beaver with the other appellants and the motion was granted by the trial court.
The cases against Dwayne Wright, Robert Foreman, Brian Gilliam, and Stephen
Gray, all alleged coconspirators and 22nd Street Crew members or allies, were
voluntarily severed from appellants‘ joint trial by the government.
22
The indictment proceeded to list thirty-three discrete overt acts, twenty-seven of
which went to the jury, alleged to have been committed by at least one charged or
uncharged coconspirator.
Because of the way that the indictment alleged the conspiracy, we review the
sufficiency of the evidence to examine whether it properly established that each
appellant knowingly participated in an agreement to obstruct justice, or to assault
or kill anyone whose interests were contrary to those of the defendants and their
coconspirators,12 and whether at least one overt act was committed by a
coconspirator. At trial, the government offered testimony about the structure and
operations of the 22nd Street Crew through several gang ―insiders‖ who testified as
cooperating witnesses: former gang members Andre McDuffie, Devin Evans,
Donald Matthews, and Alphonce Little. Their testimony tended to demonstrate
that the gang had a geographical territory around 22nd Street where only
authorized members were permitted to sell illegal drugs. In order be part of the
22nd Street Crew and enjoy the privileges associated with that membership, such
12
See White v. United States, 714 A.2d 115, 119 n.5 (D.C. 1998) (―Since
the jury returned a general verdict of guilty on the charge . . ., the conviction may
be affirmed if the evidence was sufficient to support either theory.‖).
23
as the right to partake in the profits of the gang‘s drug trafficking business,
members had to be willing to further the common goals of the gang through the use
of violence. McDuffie testified that to sell drugs as a member of the 22nd Street
Crew:
You have to commit acts of violence; you have to stay
loyal to one another; you got to help each other, if you
need anything [like] guns or if you need more drugs. It‘s
a commitment. It‘s like a way of life.
Appellants and other gang members used violence to protect their territory
and to silence or retaliate against those who were believed to threaten the business
and security of the gang and its operations. Devin Evans testified that an
―outsider‖ was ―considered somebody that‘s not from your neighborhood,
somebody that‘s not welcomed‖ who would be ―dealt with [by] acts of violence‖ if
caught acting in a way adverse to the business interests of the crew. Andre
McDuffie further explained: ―[W]e had to enforce that no one can come into our
area and try to take over our territory; no one can come in there and sell drugs
[because] we wasn‘t having it.‖ If an outsider tried to move in on the gang‘s drug
market, McDuffie stated, ―[The outsider] would have a problem [and] may end up
losing [his life.]‖ Donald Matthews testified similarly. When asked what would
happen if people from another part of the city ―decided to set up shop and sell
24
drugs‖ on 22nd Street, Matthews replied ―[t]hey wouldn‘t last long‖ because gang
members would ―[r]un them away‖ using ―[v]iolence.‖
The gang members treated ―snitches,‖ meaning those ―cooperating, telling
authorities . . . about the activities of our organization,‖ in the same way.
McDuffie testified that if someone was to cooperate with the government, ―there
would be violence inflicted.‖
The gang members played different roles in the operation according to the
―different rank[s] and level[s] of respect‖ that members had earned over time
through demonstrations of loyalty to the gang. Donald Matthews testified that the
different roles assigned to gang members included selling drugs, storing money,
stealing cars, and ―committ[ing] acts of violence in order to protect the
neighborhood.‖ However, Andre McDuffie also testified that ―everyone was an
enforcer,‖ willing to handle a ―beef‖ with ―rival[s] in the street. The cooperating
witnesses also revealed how 22nd Street Crew members shared weapons, warned
each other about police activity in the gang‘s, and provided assistance to gang
members who were in jail.
25
Such testimony sufficiently showed that no matter what role was played by a
particular gang member at a given time, the 22nd Street Crew members were
required to support the use of violence in order to advance the overall goals of
maintaining the stability and reputation of the organization, its territory, and its
illegal drug business. This testimony also established that the gang operated as a
cohesive unit (albeit loosely coordinated), with a rank and leadership configuration
that bound the gang together.
This testimony was the backdrop with which the jury examined the
participation of appellants in the charged conspiracy and the facts of the murders in
this case. The following subsections detail the evidence that more specifically
demonstrated the knowing participation of appellants in the conspiracy alleged.
1. Antonio Arnette
Donald Matthews testified that appellant Antonio Arnette was a member of
the 22nd Street Crew. According to Matthews, Arnette spent considerable time
with appellants Cooper, Rushing, and fellow gang member Alphonce Little, on
22nd Street. Matthews testified that Arnette was also involved with other 22nd
Street Crew members in packaging and selling illegal drugs in areas commonly
used by the gang. Two other gang ―insiders,‖ Devin Evans and Alphonce Little,
also testified that Arnette was a member of the 22nd Street Crew. Little testified
26
that Arnette sold drugs on 22nd Street and sometimes carried a gun. Several police
officers also testified that they observed Arnette trafficking illegal drugs in the
presence of other gang members and in areas known to belong to the 22nd Street
Crew.
Arnette also played a leading role in the attack on Terrence Jones and
Richard Queen. The evidence about this incident reasonably showed that Arnette
perceived that Terrence Jones and Queen affronted the territory of the 22nd Street
Crew by confronting fellow gang member Donald Matthews on the gang‘s turf.
Arnette then called out Terrence Jones and Richard Queen for ―faking‖ on 22nd
Street, identified the two outsiders to Cooper (who Arnette knew was a leading
member of the gang), and recommended that Cooper ―bring his hammer‖ to deal
with the situation. And the facts showed that Cooper (and Tann) responded
accordingly, in reliance on Arnette‘s representations, resulting in a chain of events
that led to Terrence Jones‘s death and Queen‘s shooting.
Although Arnette and Cooper may have been mistaken about whether
Terrence Jones or Richard Queen was a true threat to the interests of the 22nd
Street Crew, the evidence was sufficient to show that Arnette and Cooper believed
27
that the outsiders, who they thought were ―faking‖ by challenging Donald
Matthews, had territorial aspirations adverse to the interests of appellants and their
22nd Street Crew associates. The evidence surrounding this incident, especially in
the context of Arnette‘s active membership in the 22nd Street Crew and its illegal
activities, was sufficient to demonstrate his knowing participation in an agreement
with Cooper and other gang members ―to assault and kill‖ those whose goals were
contrary to those of the gang.
2. Dajuan Beaver
Appellant Beaver was identified by Devin Evans, Donald Matthews, and
Alphonce Little as a member of the 22nd Street Crew who sold illegal substances
with other gang members on 22nd Street. Alphonce Little also testified that he
shared weapons with Beaver and that Beaver carried a gun.
Beaver also played a role in the crimes against the Johnson sisters, who were
known by the gang members to be government cooperators. Beaver was involved
in assisting Cooper with his attempt to alter Kyara‘s testimony in the period
leading up to his trial. Moreover, Beaver was a key player in Laquanda Johnson‘s
murder. Beaver found the Johnson sisters on 22nd Street the evening of the
murder, convinced Alphonce Little to murder them in retaliation for their
28
cooperation with the government in Cooper‘s 2006 trial, and then assisted Little by
helping him put together a disguise before the shooting and covering up the crime
afterward. The evidence was clear that Beaver was motivated to aid in this crime
because of his membership in the 22nd Street Crew and his belief that the
objectives of the membership were contrary to those of ―snitches.‖ Thus, the
evidence was sufficient to show Beaver‘s knowing participation with other gang
members in a conspiracy to ―obstruct justice and to assault and kill‖ persons with
aims contrary to those of his codefendants.
3. Lannell Cooper
Government witnesses testified that appellant Cooper was a long-standing
and high-ranking member of the organization who by 2004 ―could tell everybody
[in the gang] what to do.‖ He was also deeply involved in the illegal drug trade on
22nd Street. Cooper was a principal in the murder of Terrence Jones for perceived
threats to the gang‘s reputation and territory on 22nd Street. And he was the
instigator of a series of attempts to obstruct justice with regard to the cooperation
of the Johnson sisters with the government in his 2006 prosecution – attempts
which were ultimately connected to Laquanda Johnson‘s murder by Alphonce
Little. Clearly, the evidence was sufficient to show his knowing participation in an
agreement with other members of the 22nd Street crew to commit obstruction of
29
justice and murder of individuals possessing interests conflicting with those of the
gang.
4. Saquawn Harris
Alphonce Little testified that appellant Harris was a member of the 22nd
Street Crew, although he was a newer member of the gang who had been
introduced to the gang and encouraged to sell drugs on 22nd Street by influential
gang member Eric Dreher. Little further stated that he sold illegal drugs with
Harris and shared weapons with him. The testimony of several police officers
bolstered Little‘s testimony about Harris‘s connection to the 22nd Street Crew by
establishing that Harris was seen regularly with Tann, Beaver, Arnette, Rushing
and other gang members on 22nd Street.
In light of these relationships, the James Taylor-Bernard Mackey incident
was probative evidence of Harris‘s participation in the conspiracy. The facts of
that incident showed that Harris, Tann, and many other gang members, responded
to an insult by an outsider, Omar Harrison, to Alphonce Little‘s girlfriend on 22nd
Street – in the heart of the gang‘s territory – and to Harrison‘s instruction to
Little‘s girlfriend to ―go get your baby[‘s] father.‖ Harris and Tann opened fire in
the direction of Omar Harrison in a sequence of events that resulted in the death of
30
James Taylor and the wounding of Bernard Mackey. Like the Terrence Jones-
Richard Queen incident, Harris‘s active participation in an event where he
violently reacted to a perceived threat to the reputation of the gang (and to the
girlfriend of a fellow gang member) was sufficient evidence of his knowing
participation in an agreement ―to assault and to kill‖ those whose interests ran
contrary to those of his gang associates.
5. James Rushing
Andre McDuffie testified that appellant Rushing had been a member of the
22nd Street Crew since the early 1990‘s; McDuffie was a senior gang member at
the time of Rushing‘s entry into the gang, and McDuffie was responsible for
teaching Rushing gang-related skills. McDuffie also testified that he saw Rushing
sell crack cocaine on a regular basis on 22nd Street. Matthews‘s testimony
additionally provided supporting evidence of Rushing‘s drug trafficking activities
with other members of the gang.
Like Beaver, Rushing played a critical role in the Laquanda Johnson murder,
which was evidence of his involvement in the conspiracy. Knowing that Little
intended to murder the Johnson sisters because of their cooperation with the
government, Rushing agreed to act as Little‘s getaway driver. Rushing drove
31
Little and Beaver from the scene of the crime after Little killed Laquanda and
wounded Keisha Frost. He also helped Little cover up the crime by instructing him
to discard his clothing, and by driving Little to Beaver‘s mother‘s house in
Maryland where Beaver stashed the murder weapon. Given Rushing‘s participation
in the Laquanda Johnson murder, the killing of a known government cooperator, in
light of Rushing‘s relationship with the 22nd Street Crew and its members, the
evidence was sufficient to show his knowing participation in the conspiracy ―to kill
or assault‖ persons (such as Laquanda) whose interests were not aligned with those
of Rushing or his associates.
6. Michael Tann
All of the government‘s ―insider‖ witnesses (McDuffie, Evans, Matthews,
and Little), as well as Tracey Tann (appellant Tann‘s wife), testified that Tann was
a well-known and high-ranking member of the 22nd Street Crew. Matthews and
Little also provided testimony about Tann‘s participation with other gang members
in the gang‘s drug trade.
More than any other appellant, Tann was also closely involved in the acts of
violence against outsiders who challenged the 22nd Street Crew‘s territory and
reputation. Tann was a key player in the Leslie Jones, Terrence Jones, and James
32
Taylor murders. Moreover, the facts point to Tann‘s repeated use of threats of
violence against potential witnesses, who might testify against his coconspirators,
in order to obstruct justice. These circumstances were sufficient to establish that
Tann – sometimes acting alongside other gang members to commit acts of violence
against perceived rivals (including Terrence Jones and Omar Harrison) –
knowingly joined and participated in an agreement ―to obstruct justice or assault or
kill‖ persons whose interests ran counter to those of the gang.
***
In sum, the evidence was sufficient to show that appellants, all members of
the 22nd Street Crew, entered into an agreement to obstruct justice by threatening
or manipulating witnesses, or to assault or kill persons whose interests were at
odds with theirs, such as rivals or cooperating witnesses, and knowingly and
voluntarily participated in that agreement. Hairston, 905 A.2d at 784. Moreover,
of the twenty-seven overt acts of the conspiracy that went to the jury, many were
supported by sufficient evidence, and at least some were supported by
overwhelming evidence.13 See Lumpkin v. United States, 586 A.2d 701, 703 (D.C.
1991).
13
For example, the facts that went to Overt Acts 28-30, which described
Little‘s murder of Laquanda Johnson and assault of Keisha Frost, were not in
dispute.
33
As to appellant‘s arguments that the proof at trial did not show a single
conspiracy, but instead showed that appellants merely engaged in ―discrete
projects, which happened within a general community ethos,‖ and that the
―indictment was so broad and unlimited as to be meaningless in a criminal
context‖, we find them unavailing. First, the evidence was sufficient to show that
appellants were engaged in actions demonstrating a core common purpose, namely
to inflict or threaten violence on rivals (real or perceived) and government
cooperators. See United States v. Graham, 83 F.3d 1466, 1471-72 (D.C. Cir. 1996)
(concluding that there was a single conspiracy where the court had ―no doubt that
[the] evidence was sufficient for a reasonable juror to conclude that appellants and
others shared the common goal of distributing crack cocaine for profit‖ despite
evidence of multiple drug-dealing ―cliques‖ operating in a particular territory).
Moreover, it is clear that the appellants and other gang members acted
together, relied on each other, and often coordinated their efforts, in order to more
effectively achieve their common goal of inflicting (or threatening) violence on
those opposed to the interests of the gang. See United States v. Gatling, 96 F.3d
1511, 1522 (D.C. Cir. 1996) (finding ―interdependence‖ existing for purposes of a
34
single conspiracy even when assistance provided by coconspirators to each other is
―fairly minimal‖); see also United States v. Richerson, 833 F.2d 1147, 1154 (5th
Cir. 1987) (―Parties who knowingly participate with core conspirators to achieve a
common goal may be members of an overall conspiracy.‖). The events of the
Terrence Jones murder-Richard Queen assault (involving Tann, Cooper and
Arnette), the James Taylor murder-Bernard Mackey assault (involving Tann,
Harris, and other gang members), and Laquanda Johnson murder-Keisha Frost
assault (involving Beaver and Rushing), are examples of such coordinated actions
by all appellants to achieve the goals of the conspiracy.
Finally, we agree with the United States Court of Appeals for the District of
Columbia Circuit that ―a conspiracy‘s purpose should not be defined in too narrow
or specific terms.‖ Gatling, 96 F.3d at 1520. Our case law demonstrates the same
principle. See Hairston, 905 A.2d at 784 (conspirators‘ aim was to ―seek[] revenge
against the 1400 block faction [of rival gang members]‖); Castillo-Campos, 987
A.2d at 483 (conspiracy‘s objective was ―to kill or otherwise ‗get‘ the rival gang
members‖). Here, although the conspiracy to ―obstruct justice and to assault and
kill anyone whose interests were contrary‖ to the gang was indeed a broadly stated
criminal objective, appellants have not cited any authority demonstrating that the
35
conspiracy count as charged was legally deficient. Cf. United States v. Romero,
897 F.2d 47, 51-52 (2d Cir. 1990) (affirming conviction for conspiring to kill a
federal officer where defendants‘ conspiracy ―was the result of a plan agreed to by
all the defendants to kill anyone posing a threat to them or [their narcotics]
business‖).
Instead, the conspiracy count adequately apprised appellants of the elements
of the offense and the time frame within which the conspiracy existed, such that
appellants could properly prepare their defenses and were protected against double
jeopardy. See United States v. Roman, 728 F.2d 846, 853-54 (7th Cir. 1984)
(indictment properly charged conspiracy where it alleged a conspiracy, the
criminal statute violated, and the time frame of the conspiracy). Therefore, we
grant no relief to appellants on the basis of their claims regarding the sufficiency of
the evidence on, or the legality of, their conspiracy charges.
B. Terrence Jones-Richard Queen Incident
1. Tann’s Convictions: Second-Degree Murder While Armed of
Terrence Jones, Armed Robbery and AWIKWA of Richard Queen, and
Possession of a Firearm During the Commission of a Crime of Violence
(“PFCV”)
36
Appellant Tann makes several sufficiency claims regarding his Terrence
Jones-Richard Queen related convictions. Emphasizing heavily the testimony of
Richard Queen and the lack of credibility of Donald Matthews, Tann challenges
the identification evidence that the jury relied on for his involvement in the entire
incident. Furthermore, he argues that, even if found to have been involved in the
event, he did not possess the state of mind required for the jury to convict him
under an aiding-and-abetting theory of liability for the second-degree murder while
armed of Terrence Jones and related counts of PFCV.
Tann‘s argument concerning the offenses in which he was the principal (the
armed robbery of Richard Queen, AWIKWA of Queen, and related weapons
offenses) is that the government‘s evidence was insufficient because it rested
solely on a single, incredible witness: Donald Matthews. However, the testimony
of a single witness is sufficient to sustain a conviction, even where contradicted by
other witnesses or evidence. Gibson v. United States, 792 A.2d 1059, 1066 (D.C.
2002). Although Matthews was not a perfect witness, the jurors credited his
testimony and it was permissible for them to do so.14 We afford the jury‘s
14
Tann‘s best evidence to counter Matthews was the testimony of the
surviving victim, Richard Queen, who testified that Tann was not among his
attackers. While powerful counterevidence, the jury could have reasonably
(continued…)
37
credibility determination substantial deference on appellate review. (Steven)
Robinson v. United States, 928 A.2d 717, 727 (D.C. 2007).
Tann‘s other claims involve those crimes of which he was convicted on an
aiding-and-abetting theory of liability (second-degree murder of Terrence Jones
and related PFCV offenses). Because he was convicted of second-degree murder
for aiding and abetting Cooper‘s shooting of Terrence Jones, the government was
required to prove that Tann had, at a minimum, a ―depraved heart‖ with regard to
Terrence Jones‘s death. Perez, 968 A.2d at 102 (―For second-degree murder, the
intent required is malice, which can be proven by evidence of a specific intent to
kill, specific intent to inflict serious bodily harm, or wanton and willful disregard
of an unreasonable human risk – also known as ‗depraved heart‘ murder.‖).
―[W]here a specific mens rea is an element of a criminal offense, a defendant must
have had that mens rea himself to be guilty of that offense, whether he is charged
as the principal actor or as an aider and abettor.‖ Kitt v. United States, 904 A.2d
348, 356 (D.C. 2006); see also Coleman v. United States, 948 A.2d 534, 552-53
(…continued)
concluded that Queen, who was attacked from behind during an extremely chaotic
situation, simply was unable to view and identify all of the men who were involved
in the attack.
38
(D.C. 2008) (extending the doctrine that the aider and abettor must share in the
mens rea of the principal to second-degree murder).
Tann portrays his attack on Richard Queen as separate and distinct from
Cooper‘s and Arnette‘s attack on Terrence Jones; further, Tann claims that there
was no evidence that he knew Cooper was going to shoot Terrence Jones or that he
helped Cooper with the shooting. To be sure, there was no evidence of any pre-
attack discussion or coordination between Tann, Cooper, and Arnette in which the
gang members explicitly identified Terrence Jones‘s death as a goal.
However, the government had powerful evidence of a joint and coordinated
effort, and of Tann‘s ―depraved heart,‖ through testimony that as the attack was
escalating, Cooper ordered Arnette, Tann, and others, to rob Terrence Jones and
Richard Queen – an order which was carried out by its recipients. This was done
when Cooper directed his cohorts to ―Pat them niggers‘ pockets.‖ The evidence
was not perfectly clear to whom this order was issued and precisely when Cooper
said it in the course of events; however, a fair interpretation of the evidence
suggests that it was made by Cooper to both Arnette (who was covering Terrence
Jones) and the men (including Tann) who were attacking Queen.
39
This understanding of the evidence was bolstered by testimony that
Cooper‘s instructions were immediately carried out by Tann, Arnette, and others,
with regard to both Terrence Jones and Richard Queen. The close proximity of the
attack on Terrence Jones and the attack on Queen, a matter of approximately ten
feet according to witnesses, in conjunction with these robbery instructions,
sufficiently proved that the attacks were a knowingly organized (if not verbally
articulated) venture designed to allow Tann and his fellow gang members tactically
to divide their victims in order to better subdue, rob, and eventually shoot both of
them. Moreover, the jury could have easily inferred from the close proximity of
the assaults that as Tann attacked Queen, he saw Cooper (a man by reputation
known to have a history of violence) striking Terrence Jones and pointing a gun at
him.
Given these circumstances, it was reasonable for the jury to have found that
Tann displayed a ―wanton and willful disregard of an unreasonable human risk‖ to
the life of Terrence Jones when he isolated, neutralized, robbed, and ultimately
shot the man who he knew was in a position to come to Terrence Jones‘s aid:
40
Richard Queen. See (Darion) Ingram v. United States, 40 A.3d 887, 900-01 (D.C.
2012); Perez, 968 A.2d at 102.
Analyzing Tann‘s PFCV offenses associated with Cooper‘s murder of
Terrence Jones, our case law instructs that ―[w]hen the government relies on an
aiding and abetting theory to prove PFCV, it is not enough to show that the
defendant participated ‗in the ―larger scheme‖ of the [crime].‘‖ Fox v. United
States, 11 A.3d 1282, 1287 (D.C. 2011) (quoting Lancaster v. United States, 975
A.2d 168, 175 (D.C. 2009)). ―Rather, the government must prove some act on the
defendant‘s part that assisted the [principals] in their possession of firearms . . . .‖
Fox, 11 A.3d at 1287 (internal quotation marks and emphasis omitted). Tann‘s
case is distinguishable from cases such as Fox and Lancaster where we found
PFCV offenses insufficient in the aiding-and-abetting context.
By complying with Cooper‘s directive to rob Richard Queen, the jury could
have found that Tann assisted Cooper in maintaining possession (by preventing
Queen from coming to the aid of his friend) of the firearm that he was using in the
course of the murder of Terrence Jones. The facts show that Tann took affirmative
steps to help Cooper keep possession of his firearm by subduing Queen in a
41
number of ways: (1) patting Queen‘s pockets – at Cooper‘s direction; (2) striking
Queen; (3) robbing Queen; (4) and ultimately shooting Queen as he ran for safety
where he could have called for help for Terrence Jones. Furthermore, the fact that
Terrence Jones resisted Cooper by hitting him suggested that Tann‘s actions
toward Queen were helpful in ensuring that Queen could not aid Jones in further
interfering with Cooper‘s possession of the weapon. Dang v. United States, 741
A.2d 1039, 1043 (D.C. 1999).
The facts of Dang, where we found that the evidence was sufficient to show
that appellant aided and abetted his codefendants in the possession of their
firearms, are very similar to the facts here. In Dang, although the defendant did
not possess a weapon, the evidence demonstrated that he ―worked in concert with
[his codefendants] by, among other things, blocking the door, guarding [one
victim] and pointing a knife at [a second victim].‖ Id. Here, like in Dang, Tann
helped Cooper maintain possession of his weapons through his actions, working in
concert with those of Cooper, to neutralize Richard Queen.
Therefore, we reject in their entirety Tann‘s arguments challenging the
sufficiency of the evidence for his convictions related to the Terrence Jones-
Richard Queen incident.
42
2. Arnette’s Convictions: Second-Degree Murder While
Armed of Terrence Jones, Armed Robbery of Richard Queen,
and PFCV
Like Tann, appellant Arnette argues that the evidence was insufficient as to
the mens rea elements required for his Terrence Jones murder-Richard Queen
assault related convictions. The government pursued each of the counts in the
indictment against Arnette related to this incident under an aiding-and-abetting
theory of liability.
Kyara Johnson testified that Arnette initiated the attack by calling for
Cooper and telling him to confront Terrence Jones and Richard Queen while
armed, i.e., with his ―hammer.‖ Kyara also testified that Arnette patted Terrence
Jones‘s pockets, at Cooper‘s command, and struck him with his hands while
Cooper had his gun drawn. Certainly, if believed, this would amount to active
participation in the assault on Terrence Jones. However, as Tann does, Arnette
argues that his involvement in the offense did not demonstrate the necessary state
of mind for second-degree murder because he had no reason to believe that Cooper
would shoot Terrence Jones. Also like Tann, Arnette relies on the fact that there
was no previous conversation with Cooper about intending to kill Terrence Jones
or any evidence that Arnette did anything to encourage Cooper to do so. Instead,
43
he argues that the shooting was a ―spontaneous reaction by Cooper‖ to Terrence
Jones‘s unexpected resistance to the attack.
Arnette further argues that the evidence is even more attenuated, and
therefore also insufficient, regarding his convictions for aiding and abetting Tann
in the armed robbery of Richard Queen. He claims that there is no reasonable
inference to be drawn from his actions toward Terrence Jones (patting his pockets
and/or hitting him) that supports the notion that he shared in Tann‘s intent to rob
Queen.
The government witnesses against appellant Arnette were often inconsistent
and sometimes exculpatory in their testimony. However, the question here is
whether, viewing the evidence in the light most favorable to the government,
Arnette‘s conduct demonstrated the ―depraved heart‖ (if not a more criminally
culpable) state of mind required for the second-degree murder of Terrence Jones,
the specific intent to commit armed robbery of Queen, and knowledge of Cooper‘s
and Tann‘s use of firearms, as well as assistance to Cooper and Tann in
maintaining possession of those firearms, as required by the associated PFCV
offenses. The key facts, as to the offenses involving both victims, were: (1)
44
Arnette instigated the entire event by identifying Terrence Jones and Richard
Queen to Cooper and telling him that the two men were on 22nd Street ―faking‖;
(2) Arnette instructed Cooper to ―bring his hammer,‖ meaning Cooper‘s gun,
thereby anticipating and inciting violence; (3) Arnette complied with Cooper‘s
order to pat Terrence Jones‘s pockets; (4) Arnette hit Terrence Jones in the course
of the attack; (5) Tann violently assaulted Queen less than ten feet away from
Arnette‘s and Cooper‘s attack on Terrence Jones; and (6) Cooper phrased his
―robbery‖ instruction in the plural, so Arnette would have known that there were
two victims to be jointly controlled and subdued by the attackers.
As to the offenses in which Arnette aided and abetted Cooper (second-
degree murder and associated PFCV offenses), the evidence against Arnette was
clearly sufficient. See (Darion) Ingram, 40 A.3d at 900-01; Perez, 968 A.2d at
102. Arnette‘s instigation of the violent attack on Terrence Jones and his active
assistance during its undertaking demonstrated, at a minimum, a ―wanton and
willful disregard of an unreasonable human risk.‖ Perez, 968 A.2d at 102.
Moreover, the PFCV convictions underlying the Terrence Jones offenses were also
based on sufficient evidence given that Arnette himself instructed Cooper to bring
his gun to confront Terrence Jones and Richard Queen – obviously demonstrating
45
the requisite awareness and knowledge of Cooper‘s use of a firearm. Then,
Arnette took steps to assist Cooper in maintaining possession of the firearm during
Cooper‘s attack on Terrence Jones. See Fox, 11 A.3d at 1287; Lancaster, 975
A.2d at 175; Dang, 741 A.2d at 1043.
For the robbery conviction of which Arnette was an accomplice to Tann, the
government was required to show that Arnette had the specific intent to aid and
abet Tann in the robbery of Richard Queen. Lattimore v. United States, 684 A.2d
357, 359-60 (D.C. 1996). Certainly, there was no evidence of a pre-attack
discussion outlining robbery as a goal of the attack which would have made the
government‘s case clear-cut. Arnette relies on a Virginia case, McMorris v.
Commonwealth, 666 S.E.2d 348, 352 (Va. 2008), for the proposition that
―[r]obbery is not an incidental, probable consequence of an assault; robbery
requires a completely different type of wrongdoing: stealing.‖ Indeed, a joint
assault plus close proximity to a codefendant‘s robbery may be insufficient to
show specific intent to commit robbery under an aiding-and-abetting theory of
liability. But the facts here are not so limited.
46
As we have already discussed, between the first stages of the attack and
Tann‘s subsequent robbery of Richard Queen, Cooper issued his robbery
instructions. And Cooper phrased his instructions in the plural: ―Pat them niggers‘
pockets.‖ These instructions were followed by Arnette‘s patting of Terrence
Jones‘s pockets, which could have been reasonably interpreted as a robbery
attempt by Arnette on Jones. The fact that Arnette heard and executed Cooper‘s
instructions strongly implied that Arnette knew exactly what Tann (one of the
other recipients of Cooper‘s instructions) was similarly doing to Queen, and
Arnette was intentionally aiding and abetting the robbery of Queen through his
actions containing and subduing Terrence Jones. Again, it was reasonable for the
jury to have viewed the entire attack (including the robbery) as a coordinated
venture among Cooper, Tann, Arnette, and others, in which the gang members
worked together, at Cooper‘s direction, to make their attack on both victims more
successful through combined efforts. See Downing v. United States, 929 A.2d 848,
862 (D.C. 2007) (defendant‘s presence at the scene of a crime plus conduct which
facilitates a crime supports an inference of guilt as an aider and abettor). So
viewed, the evidence was legally sufficient for the jury to find that Arnette
possessed the state of mind necessary for the second-degree murder of Terrence
47
Jones, the robbery of Richard Queen, and the PFCV offenses associated with
Cooper‘s murder of Jones.
However, the analysis is different as to Arnette for the ―armed‖ component
of the robbery of Richard Queen and the related PFCV offense. Unlike Cooper‘s
robbery instructions, which put Arnette on notice that Queen was about to be
robbed, there was no similar mechanism by which Arnette was put on notice that
Queen was about to be robbed by the use of a firearm. There is no evidence that
Tann was in possession of a weapon prior to the point when Donald Matthews saw
Tann pick up a gun from the ground during the melee and immediately use it to
shoot Queen. Although arguably Arnette should have anticipated or foreseen that
Tann would use a weapon, especially in light of Arnette‘s statement to Cooper that
Cooper should bring his weapon, recent case law from the Supreme Court, as well
as this court, teaches that foreseeability alone is insufficient to support such a
judgment of conviction under an aiding-and-abetting theory of liability.
In order to convict of an offense requiring the use of a firearm by a principal,
the government must prove that the aider and abettor knew in advance that his
associate was armed with a gun – enabling the defendant to ―make the relevant
48
(and indeed, moral) choice‖ to aid and abet an armed offense. Rosemond v. United
States, 134 S. Ct. 1240, 1249 (2014) (―[A]n unarmed accomplice cannot aid and
abet a [PFCV-type] violation unless he has foreknowledge that his confederate will
commit the offense with a firearm.‖) (internal quotation marks omitted); (Leon)
Robinson v. United States, No. 11-CF-1443, slip op. at 21 (D.C. Sept. 25, 2014)
(―A person cannot intend to aid an armed offense if she is unaware a weapon will
be involved.‖). Here, there was insufficient evidence that Arnette had advance
knowledge that Tann was armed during the robbery of Richard Queen.
Under these circumstances, the mere proximity of Arnette to Tann was not
enough to infer such knowledge. The evidence showed that Tann picked up a
firearm and used it to rob and shoot Richard Queen quite late in the timeline of the
incident, giving Arnette no meaningful notice (if any at all) that Tann was going to
use the gun to effectuate his attack on Queen. Cf. Rosemond, 134 S. Ct. at 1250
n.9 (―Of course, if a defendant continues to participate in a crime after a gun was
displayed or used by a confederate, the jury can permissibly infer from his failure
to object or withdraw that he had such knowledge.‖).
49
Had there been some evidence from which the inference could be drawn that
Arnette had advance knowledge that Tann was using a gun to carry out the
robbery, as well as evidence that Arnette assisted Tann in maintaining possession
of the firearm, and decided to proceed with his involvement in the attack on
Terrence Jones and Queen, our conclusion would be different. However, we see
insufficient evidence based on this record. See Rivas v. United States, 783 A.2d
125, 134 (D.C. 2001) (en banc) (―[I]f the evidence, when viewed in the light most
favorable to the government, is such that a reasonable juror must have a reasonable
doubt as to the existence of any of the essential elements of the crime, then the
evidence is insufficient and we must say so.‖) (internal quotation marks omitted).
Therefore, we vacate the judgment as to the ―armed‖ component of
Arnette‘s robbery conviction and his PFCV conviction associated with the robbery.
The lesser-included offense of unarmed robbery, and all of Arnette‘s other
convictions related to this incident are affirmed.15
15
See (Leon) Robinson, No. 11-CF-1443, slip op. at 37-38 (permitting the
government to ―accept[] the entry of judgment for [the] lesser-included unarmed
offense‖ of unarmed robbery after holding that the trial court committed
instructional error, but concluding that the error did not affect the jury‘s findings
on the elements of the lesser-included offense). Here, there has been no claim of
instructional error with regard to the jury instruction concerning the state of mind
required for conviction of PFCV under an aiding-and-abetting theory of liability.
(continued…)
50
C. James Taylor-Bernard Mackey Incident
Appellants Tann and Harris challenge the sufficiency of the evidence for
their convictions based on the James Taylor and Bernard Mackey incident.
Fundamentally, their claims turn on how the law of aiding and abetting is to be
applied to the facts of this event. In addition to their sufficiency arguments,
appellants raise two related claims, one regarding the aiding-and-abetting
instruction given to the jury, and another regarding the trial court‘s ―curtailment‖
of their closing arguments. Since all of these arguments turn on whether the court
properly decided the legal issue related to the theory of liability, they are all
addressed here.
(…continued)
Therefore, despite the insufficiency of the evidence on the armed component of
Arnette‘s robbery conviction and the associated PFCV offense, there was no
reasonable possibility that the jury‘s permissible finding of the elements of
Arnette‘s lesser-included offense of unarmed robbery of Richard Queen, or of his
Terrence Jones murder-related offenses (resulting in three convictions for second-
degree murder and associated PFCV offenses based on Cooper‘s use of a weapon),
was affected. Cf. id. at 37-42. As we did in (Leon) Robinson, we conclude that
there is ―no unfairness that we can discern in reducing [Arnette‘s] conviction to
[the] lesser included offense[]‖ because Arnette ―had full notice of [his] potential
liability for the lesser crime[] and there is no indication that defense presentation
would have been altered if the armed charges had been dismissed at the end of the
government‘s case or if the trial court had instructed the jury on the lesser-included
offense[].‖ Id. at 38 (internal quotation marks omitted) (quoting Allison v. United
States, 409 F.2d 445, 451 (D.C. 1969)). See also Jackson v. United States, 940
A.2d 981, 996 (D.C. 2008) (remanding the case to the trial court with instructions
to enter judgment of conviction on a lesser-included offense).
51
The government argued that there were three shooters within the group of
gang members who raced toward Omar Harrison after his dispute with Alphonce
Little‘s girlfriend, Ashley Tyndle, from different directions on 22nd Street:
appellants Tann and Harris, as well as a third shooter, junior gang member Robert
Foreman. But the government presented evidence that additional gang members
were shooting as well. Latina Anderson testified that she saw between five and ten
men, including gang members Tann, Harris, Little, and Blaylock, emerge from
nearby ―cuts‖ and shoot at Harrison.16 Christina Anderson told the grand jury that
she saw Tann and Blaylock shooting. Donnise Harris saw Tann, Harris, and ―a lot
of people‖ running and shooting. Thus, if credited, the testimony of several
witnesses established that there were a number of 22nd Street Crew members at the
scene of the crime moving toward Omar Harrison in a hostile manner and
shooting.
16
Little and government witness Travis Honesty denied that Little was
shooting, but Little testified that he would have been shooting if he had had a gun
at the time. Firearms examiner Robert Harvey testified that there were ―three
firearms that [he] kn[e]w of for sure[,]‖ but agreed that ―[t]here could have been
more[.]‖
52
Furthermore, there was testimonial evidence – not really disputed on appeal
– tending to show that Harris and Tann opened fire on 22nd Street with the intent
to shoot Harrison and that they were each aware of each other‘s presence at the
time of the shooting. Anderson testified that some other shooters were standing
within a few steps of Tann and Harris while they all were shooting, thus permitting
an additional inference that Harris and Tann were aware of the presence and
participation of other gang-member shooters. However, there appears to have been
no evidence to suggest that either Harris or Tann was aware of the specific
presence and participation of Foreman until after the incident was complete.
Foreman was shooting from a different position on 22nd Street than either Harris
or Tann. The testimony was that Foreman saw and heard Tann and Harris firing at
Harrison, felt compelled to join in the attack, and started shooting as well. The
evidence was ambiguous as to which of the shooters, Harris, Tann, Foreman, or
someone else, actually fired the shot or shots that hit James Taylor and Bernard
Mackey.
There was at least some evidence to show, primarily through the testimony
of Alphonce Little, that James Taylor was not killed until after Harris‘s gun ran out
of bullets and he stopped firing at Omar Harrison. Based on his statements to his
53
fellow gang members, Robert Foreman appeared to believe, or want others to
believe, that his shot hit Taylor.
The forensic evidence was of limited value. Although it was clear that
James Taylor had been killed by a gunshot wound to the head, the fatal bullet
passed through him and was not identified during the investigation. Therefore,
there was no link between the fatal bullet and a particular gun or shooter;
additional forensic evidence was of minimal weight in identifying the actual killer,
and the government essentially conceded this at trial. The evidence was even less
clear with regard to Bernard Mackey. No evidence was presented linking the
bullet that grazed Mackey with any particular shooter.
The government charged Harris and Tann with the premeditated murder of
James Taylor and AWIKWA of Bernard Mackey. It told the jury they could
convict Harris and Tann of Taylor‘s murder and (using transferred intent) of
Mackey‘s assault either as principals or based on an aiding-and-abetting theory of
liability.
54
Because the government did not know who fired the fatal shot, and also did
not contend that Harris and Tann knowingly or intentionally associated themselves
with Robert Foreman in particular at the time of the shooting,17 it argued that,
regardless, aiding-and-abetting liability rendered each one criminally responsible
for the others‘ actions if they all aided in the commission of the offense by firing at
Omar Harrison.
Harris and Tann contended that accomplice liability requires proof that the
defendant was ―consciously helping the person that was the principal‖ (whom, they
argue, the jury could have found to be Robert Foreman). According to appellants‘
brief on appeal, to convict Harris and Tann of aiding and abetting Foreman‘s
crime, the jury was required to find ―beyond a reasonable doubt that [appellants
were] aware of Mr. Foreman‘s presence and aware that by firing first, they would
cause Mr. Foreman to commit the acts that would result in the decedent‘s death.‖
After litigating the issue, the trial court agreed with the government that if
―you can show that the person aided and abetted the crime itself[,] you‘ve solved
17
The government did, however, remind the court of evidence that showed
that ―this is not a situation where Mr. Harris didn‘t know Mr. Foreman. There is
evidence that these two men shared guns together, and that Mr. Foreman was a
member of the conspiracy.‖
55
the intent problem.‖ Accordingly, the judge gave the pattern instruction for aiding
and abetting, which does not reference intentional association with the principal.
In relevant part, the instruction reads: ―To find that a defendant aided and abetted
in committing a crime, you must find that the defendant knowingly associated
himself with the commission of the crime, that he participated in the crime as
something he wished to bring about, and that he intended by his actions to make it
succeed.‖ Criminal Jury Instructions for the District of Columbia, No. 3.2 (5th ed.
rev. 2013). During closing arguments, the trial judge further informed the jury
that there are two ―types‖ of aiding and abetting: ―if you knowingly aid and assist
the [principal] . . . [or] if you knowingly aid and abet the crime.‖ In addition, the
trial court instructed the jury that it is ―not the law‖ that ―‗[i]f you don‘t know who
the shooter is or that they are present, you can‘t possibly be working together in a
18
coordinated effort‘ and ‗can‘t be an aider and abettor.‘‖
On this issue, we find ourselves confronted with a very unusual fact pattern.
There is no case in this jurisdiction that has addressed the legal viability of an
aiding-and-abetting theory of liability as applied to a defendant whose actions
18
Nevertheless, Harris‘s counsel argued to the jury that, ―you can‘t help a
crime that is occurring because some unknown person is committing that crime if
you‘re unaware that that person is there.‖
56
actually aided the principal, and who possessed the same criminal intent as the
principal, but who was unaware of the presence and participation of the principal at
the time the criminal offense occurred. Because of the challenging nature of this
issue, we pause to flesh out the arguments of the parties – neither of which we fully
accept.
1. The Government’s Argument
The government‘s argument is that there are two manners in which a
defendant in this jurisdiction can be guilty of aiding and abetting. One way is to
aid and abet the principal offender in his or her commission of a crime. The other
way is to ―advise,‖ ―incite,‖ or ―connive‖ at the offense itself, regardless of
―intentional association‖ between the principal and the aider and abettor. The
government emphasizes the plain language of the aiding-and-abetting statute, D.C.
Code § 22-1805 (2012 Repl.), which reads:
In prosecutions for any criminal offense all persons
advising, inciting, or conniving at the offense, or aiding
or abetting the principal offender, shall be charged as
principals and not as accessories, the intent of this section
being that as to all accessories before the fact the law
heretofore applicable in cases of misdemeanor only shall
57
apply to all crimes, whatever the punishment may be.
[Emphasis added.]19
The government argues that the ―or‖ in the statute makes it disjunctive, and
therefore creates these two categories of aiders and abettors. The government‘s
position is that Tann and Harris were guilty of the ―first‖ form of aiding and
abetting, which holds accomplices liable if they advise, incite, or connive ―at the
offense,‖ regardless of the relationship, if any, between the accomplice and the
principal. Therefore, the government contends, because Tann and Harris incited
the crime by shooting at Omar Harrison, causing Foreman also to open fire, Tann
and Harris need not have ―intentionally associated‖ with Foreman in order to be
guilty of his crimes (assuming Foreman was the principal).
19
The purpose of D.C. Code § 22-1805 was to ―abolish the distinction
between principals and accessories and render them all principals.‖ Perez, 968
A.2d at 93 (alterations omitted); see also Standefer v. United States, 447 U.S. 10,
19-20 (1980) (interpreting the similarly-worded federal aiding-and-abetting statute,
18 U.S.C. § 2 (a) (2014): ―all participants in conduct violating a federal criminal
statute are ‗principals‘‖); ).(Edward) Thompson v. United States, 30 App. D.C.
352, 364 (D.C. Cir. 1908) (―By the common law, all persons who command,
advise, instigate, or incite the commission of an offense, though not personally
present at its commission, are accessories before the fact, and the object of the
aforesaid section was to make all such persons principal offenders.‖). The statute
―merely extended [the] doctrine of vicarious responsibility to additional classes of
offenders by treating them as principals.‖ Hazel v. United States, 353 A.2d 280,
283 n.9 (D.C. 1976). That narrow purpose notwithstanding, ―it is not, and cannot
be, our practice to restrict the unqualified language of a statute to the particular evil
that Congress was trying to remedy -- even assuming that it is possible to identify
that evil from something other than the text of the statute itself.‖
Brogan v. United States, 522 U.S. 398, 403 (1998).
58
The government attempts to bolster this argument by citing to a series of
cases, particularly from this court, in which the aiding-and-abetting standard is
articulated with reference to the offense, without dependence on a relationship
between the accomplice and the principal. See, e.g., English v. United States, 25
A.3d 46, 52 (D.C. 2011) (―To be guilty as an aider and abettor of a charged offense
. . . the defendant must be shown to have assisted or participated in that crime with
guilty knowledge.‖) (internal quotation marks and emphasis omitted); Tyree v.
United States, 942 A.2d 629, 637 (D.C. 2008) (―[T]he jury may [] convict of aiding
and abetting in cases where the evidence is disputed as to who, as between the
defendant and someone else, was the principal, so long as there is evidence that the
defendant participated – in one capacity or the other – in the events that led to
commission of the crime.‖); see also Rosemond, 134 S. Ct. at 1249 (―So for
purposes of aiding and abetting law, a person who actively participates in a
criminal scheme knowing its extent and character intends that scheme‘s
commission.‖).
2. Appellants’ Argument
Appellants‘ argument is that aiding and abetting has historically required the
aider and abettor to ―intentionally associate‖ himself or herself with a particular
59
individual who was the principal, with liability attaching only if the accomplice
―know[s] of the principal‘s presence and criminal intentions.‖ Appellants cite
authorities articulating aiding-and-abetting standards that specifically reference the
principal in their formulations. See, e.g., Kitt, 904 A.2d at 356 n.10 (―[T]he basic
requirement . . . now almost universally accepted [is that] the accomplice be shown
to have intended that the principal succeed in committing the charged offense.‖)
(citation and internal quotations omitted) (quoting Wilson-Bey v. United States,
903 A.2d 818, 831 (D.C. 2006) (en banc)); United States v. (Dwayne) Washington,
106 F.3d 983, 1004 (D.C. Cir. 1997) (elements of aiding and abetting include ―the
specific intent to facilitate the commission of a crime by another‖); see also
WAYNE R. LAFAVE, CRIMINAL LAW § 13.2 (b) (5th ed. 2010) (―Generally, it may
be said that accomplice liability exists when the accomplice intentionally
encourages or assists, in the sense that his purpose is to encourage or assist another
in the commission of a crime as to which the accomplice has the requisite mental
state.‖). Appellants extrapolate that ―intentional association‖ with the principal is,
and has always been, required for aiding-and-abetting liability.
Appellants argue that based on the government‘s evidence, the jury could
have found that Robert Foreman was the principal in the James Taylor murder.
60
Because, appellants argue, they had no knowledge of Foreman‘s involvement in
the incident and no intent to help or encourage Foreman to commit criminal
activities, they could not have aided and abetted him in his crimes. Although the
evidence was ambiguous as to who was actually the principal in both the murder
and the AWIKWA, appellants argue that the court‘s instruction ensured that they
would be convicted, even if the jury found that Foreman was the principal and that
appellants had no knowledge of his presence or participation at the time of the
crime (which would certainly have been reasonable for the jury to do).
3. Analysis
Fundamentally, the elements of aiding and abetting are that ―(a) a crime was
committed by someone; (b) the accused assisted or participated in its commission;
and (c) his participation was with guilty knowledge.‖ Hawthorne v. United States,
829 A.2d 948, 952 (D.C. 2003).20 ―A culpable aider and abett[o]r need not
20
See also United States v. (Matthew) Moore, 708 F.3d 639, 649 (5th Cir.
2013) (elements of aiding and abetting are: (1) the substantive offense occurred
(2) the defendant associated with the criminal venture; (3) the defendant purposely
participated in the criminal venture; and (4) the defendant sought by his actions to
make the venture successful); United States v. Staten, 581 F.2d 878, 886-87 (D.C.
Cir. 1978) (―the elements of the offense of aiding and abetting are: (1) guilty
knowledge on the part of the accused; (2) that an offense was committed by
someone; (3) that the defendant assisted or participated in the commission of the
offense‖) (alterations omitted).
61
perform the substantive offense, need not know its details, and need not even be
present, so long as the offense committed by the principal was in furtherance of the
common design.‖ United States v. Sampol, 636 F.2d 621, 676 (D.C. Cir. 1980)
(citations omitted). ―[I]t is not essential that the principal in the operation be
identified so long as someone has that status.‖ Gayden v. United States, 584 A.2d
578, 582 (D.C. 1990) (internal quotation marks and alteration omitted).
In Wilson-Bey, we dealt with a first-degree premeditated murder prosecution
under D.C. Code § 22-1805 and held that ―whether the defendant is charged as a
principal or as an aider or abettor, the government must prove all of the elements
of the offense, including premeditation, deliberation, and intent to kill.‖ 903 A.2d
at 822. In doing so, we adopted the rule of United States v. Peoni, 100 F.2d 401
(2d Cir. 1938), and rejected the ―natural and probable consequences‖ approach to
accomplice liability because it ―impermissibly relieved the government of the
burden of showing that the accomplice had the mens rea required to be guilty of
the offense.‖ In re D.N., 65 A.3d 88, 95 n.8 (D.C. 2013); see also Nye & Nissen v.
United States, 336 U.S. 613, 618-19 (1949) (―In order to aid and abet another to
commit a crime it is necessary that a defendant ‗in some sort associate himself with
the venture, that he participate in it as in something that he wishes to bring about,
62
that he seek by his action to make it succeed.‘‖ (quoting Peoni, 100 F.2d at 402)).
We held that an aider and abettor must act with the mens rea required by the
specific crime with which the principal is charged and ―be an associate in guilt of
that crime.‖21 Wilson-Bey, 903 A.2d at 831 (emphasis omitted) (quoting Roy v.
United States, 652 A.2d 1098, 1104 (D.C. 1995)). We explained in Wilson-Bey,
however, that, nothing in the opinion ―casts doubt on the propriety of [an]
instruction . . . to the effect that a jury may . . . infer that a person intends the
natural and probable consequences of his or her acts knowingly done or knowingly
omitted.‖ 903 A.2d at 839 n. 38 (original brackets omitted). Such a presumption,
we observed, ―does not distinguish between principals and accomplices, nor does it
expand the liability of one but not of the other.‖ Id.
What we must do in this case, which we did not do in Wilson-Bey because
the question was not presented, is determine whether the aider and abettor who
acts, as Wilson-Bey requires, with the same purpose and intent as the principal
must also ―intentionally associate‖ with that specific principal. More pointedly,
21
Wilson-Bey‘s holding was extended to the offense of AWIKWA, also a
specific intent crime, and to offenses not requiring specific intent. See McCrae v.
United States, 980 A.2d 1082, 1090 (D.C. 2009); see also Perry v. United States,
36 A.3d 799, 808 (D.C. 2011) (―We have by now made clear that Wilson-Bey is
not limited to specific intent crimes.‖) (internal quotation marks omitted).
63
the question here is whether the aider and abettor must know of the presence and
conduct of the specific principal and form the intent to help him or her with the
commission of his or her crime, as opposed to share simply (with whoever shared
the aider and abettor‘s purpose) in the mens rea required to commit the crime
itself.22 Although the evidence was disputed at trial, we assume for the purposes of
this opinion that it was Robert Foreman who fired the bullets that hit James Taylor
and Bernard Mackey, and therefore, was the principal in the crimes committed
against them. We also assume, because here it appears from the record that the
evidence was undisputed, that Tann and Harris were unaware of Foreman‘s
presence during the attack.
22
Both parties attempt to use the language of Wilson-Bey and Peoni to
support their argument. Indeed, there is language that cuts both ways in those
opinions. Compare Wilson-Bey, 903 A.2d at 840 (―[T]he government must prove,
in conformity with Peoni, that the accomplice in some sort associated himself with
the venture, that he participated in it as in something he wished to bring about, and
that he sought by his action to make it succeed.‖) (emphasis added and internal
quotation marks and alterations omitted) with id. at 831 (―Every United States
Circuit Court of Appeals has adopted Peoni‘s requirement that the accomplice be
shown to have intended that the principal succeed in committing the charged
offense . . . .‖) (emphasis added). The same could be said for other opinions of this
court. Compare English, 25 A.3d at 52 (―To be guilty as an aider and abettor of a
charged offense . . . the defendant must be shown to have assisted or participated in
that crime with guilty knowledge.‖) (internal quotation marks omitted) with id. at
53 (―The key question is whether . . . [the accomplice] intentionally participated in
[the principal‘s offense] and that he not only wanted [him] to succeed . . . but that
he also took concrete action to make his hope a reality.‖). It seems fair to say that,
in all these cases, the judicial mind was not focused on the issue we now confront.
64
The language of D.C. Code § 22-1805 is silent on whether its terms that
describe the accomplice‘s advising, inciting, conniving, or aiding and abetting the
principal offender in the criminal venture are to be infused with the ―intentional
association with a principal of whom the defendant is aware‖ requirement
advanced by appellants. Our case law is also silent on this specific point. In the
normal case, unlike here, there is little question about the alleged accomplice‘s
awareness of the role of the principal – if not aware of every detail about the
principal‘s involvement in the crime at issue, the accomplice is at least aware of his
or her presence and participation.
Because our statute, like its federal counterpart, incorporates the common
law,23 we must look to cases with analogous facts interpreting the common law in
order to test appellant‘s theory that the possibility of recognizing aiding and
abetting on unusual facts such as those presented in this case was unknown to the
common law, and that recognizing such liability in this case would create liability
where it did not exist before. See Outlaw v. United States, 632 A.2d 408, 411
(D.C. 1993) (interpreting the elements of D.C. Code § 22-1806, the District of
23
See (Edward) Thompson, 30 App. D.C. at 364; see also Rosemond, 134 S.
Ct. at 1245-46.
65
Columbia accessory-after-the-fact statute, in light of the common law in the
absence of statutory definitions).
We begin with Whitt v. Commonwealth, 298 S.W. 1101 (Ky. 1927). In that
case, while appellant Whitt was firing at Scott (a law enforcement officer who was
attempting to arrest him), a third-party, Stanley, appeared and fatally shot Officer
Scott. The court observed:
It is clear that appellant in resisting arrest, and in firing at
Scott, was attempting to do so to evade arrest, and not
only is there nothing to show that Stanley was interested
in appellant’s successful evasion of arrest but there is no
evidence to show what prompted Stanley in firing the
shot at Scott. Whether he had any other and different
reason for firing at him is not disclosed, and there is no
evidence that appellant advised, counseled, or incited him
to fire that shot in any way, or that a word had been
spoken between them in any way just prior to, during, or
at the time of the difficulty.
The intent or purpose of appellant in firing at Scott is
apparent, but there is a lack of evidence from which it
may be surmised that Stanley in firing his shot shared the
intent or purpose with which appellant had fired his, or
in fact what his purpose was.
Id. at 1102 (italics added). In concluding that Whitt could not be properly be
convicted as an aider and abettor, the court reasoned:
66
In this case we have the intent which prompted appellant
to commit the offenses committed by him, but there is a
lack of evidence to show that he shared in any criminal
intent or purpose which prompted Stanley to fire the fatal
shot. So far as this record discloses, Stanley may have
had some criminal intent totally foreign to and
disconnected from the intent which prompted appellant;
in other words, Stanley may have seized upon the
opportunity thus presented to him to even up an old score
with Scott with which appellant was totally disconnected,
and with which criminal intent he had no connection and
no sympathy.
Id. at 1103 (italics added).24 The court‘s reasoning strongly implies that had there
been evidence that Stanley ―was interested in appellant‘s successful evasion of
arrest,‖ that Stanley thus ―shared the intent or purpose‖ with which [Whitt] had
fired his‖ shot, and that Whitt shared in the purpose which ―prompted Stanley in
firing the shot at Scott,‖ the court would not have reversed Whitt‘s aiding and
abetting conviction.
The reasoning of Landrum v. Commonwealth, 96 S.W. 587 (Ky. 1906), is
similar to that of Whitt. There, a group of men, ―more or less drunk‖ and
24
Cf. State v. Ochoa, 72 P.2d 609, 616 (N.M. 1937) (―The accused may not
be held for the independent act of another even though the same person be the
victim of an assault by both. In such circumstances there is wanting that sharing of
criminal intent essential to proof of aiding and abetting.‖).
67
motivated by an inter-family quarrel, involved themselves in ―a shooting affray‖
near the defendant‘s house. Id. at 587-88. The defendant, roused from sleep by
the shooting and also ―more or less drunk‖ while apparently unaware of the
motivations of the warring families, saw a third-party unassociated with the
feuding groups ―staggering about‖ and opened fire. Id. at 587. The defendant‘s
bullets struck the third-party but merely wounded him superficially. Meanwhile, a
bullet fired by someone other than the defendant also hit the third-party, killing
him. Id. at 587-88. There was no evidence that the defendant was acquainted with
the man who was charged as the principal in the killing. Id. at 588. The court, in
concluding that the defendant could not be guilty of aiding and abetting the actual
killer, found that ―whatever may have been the purpose or motive of the [other
shooters] . . . there was not a scintilla of proof that appellant knew of it or shared it
to any extent.‖ Id. at 588.
The type of evidence that was missing in Whitt and Landrum is present here.
Here, according to Little‘s testimony, which the government highlighted in closing
argument,
[Foreman] said he seen Ashley [Tyndle] arguing with
some dude [Harrison] . . . So he said he got out his car
68
and start walking towards there and he seen [appellant
Harris] and somebody else coming around the corner. So
he said, man, they got it. So he went back towards his
house . . . . [but then] heard a gunshot . . . [so then he]
turn[ed] around and start shooting.
In other words (in conjunction with testimony by other witnesses about Harris‘s
and Tann‘s actions after hearing about the argument between Harrison and
Tyndle), Little‘s testimony established (1) that Foreman shot at Harrison for the
same reason Harris and Tann shot at Harrison, and (2) that Foreman, Harris, and
Tann shared the purpose that prompted Foreman to fire the fatal shot: to avenge
Harrison‘s hostile conduct toward the woman (Tyndle) who was the girlfriend of
22nd Street crew member Little.
Regarding what constitutes a shared or common ―criminal intent or purpose‖
in situations where the accomplice may be unaware of the particular presence of
the principal, we have identified three cases of note. In State v. Ochoa, 72 P.2d
609, two defendants were part of a crowd of over 100 people that attacked the
county sheriff in an attempt to free a prisoner in the sheriff‘s custody. Shots were
exchanged between the mob and the police. Id. at 617. None of the shots were
fired by the defendants, but one of the shots killed the sheriff. The defendants
69
assaulted several of the sheriff‘s deputies, preventing them from coming to the
sheriff‘s aid. The Ochoa court held that ―[t]he fact that [the defendants] were thus
engaged in a vicious assault upon [the deputy], . . . left it within the jury‘s province
to infer, if it saw fit, not alone that these defendants shared in the intent of the
slayer, but also that they aided and abetted him in his unlawful undertaking.‖ Id.
(citing Woolweaver v. State, 34 N.E. 352, 353 (Ohio 1893)). Pertinent here, the
court so held even though it appears there was no evidence that the defendants (or
anyone else) knew with particularity of the presence and participation of the
sheriff‘s actual killer or took particular notice of everyone who populated the mob.
In State v. Kukis, 237 P. 476 (Utah 1925), an armed mob of 65 to 100
striking laborers, including the defendant, fired on a railroad car containing
management representatives. One of the bullets, fired by an unknown member of
the mob, struck a railcar worker and killed him. The court held that there was:
[A] just inference that every one of the crowd . . . was
there for a common and unlawful purpose, and
participated or aided and abetted in the assault. . . . There
thus is evidence to justify a finding of combination or
confederacy or concert of action of this armed crowd or
mob . . . that all who were members or part of such
crowd or mob . . . aided or abetted therein; and though
the evidence does not show whether it was or was not the
bullet shot by the defendant or by another member of the
70
mob which killed the deceased . . . the jury was justified
in finding him guilty. . . .
Id. at 479.
In People v. Cooks, 625 N.E.2d 365 (Ill. Ct. App. 1993), the murder victim
and defendant belonged to enemy gangs. Following an argument between
members of the two gangs, the defendant followed the victim as he entered a
tavern vestibule. The defendant ―ran up to the front of the tavern and fired [his]
gun through the [tavern] window, striking [the victim] in the leg.‖ Id. at 367.
―The arm of an unidentified individual then stuck a shotgun through the tavern
door, and fired it once, striking [the victim] in the stomach and killing him.‖ Id. at
367-68. The person to whom ―the arm‖ belonged was never identified. Id. at 368.
Cooks argued on appeal that ―the State failed to prove that he solicited,
aided, abetted or agreed or attempted to aid the unknown, unidentified person who
shot and killed [the victim].‖ Id. The Illinois court stated that the ―intent to
promote or facilitate the commission of a crime can be shown by evidence that the
defendant shared the criminal intent of the principal or that there was a common
design or community of unlawful purpose.‖ Id. at 368. The court concluded that
―the evidence . . . sufficiently demonstrate[d] a common design and a community
of unlawful purpose between the defendant and the second unidentified
71
individual,‖ id. at 370, and that it was logical to conclude that the defendant aided
the second unidentified shooter ―by virtue of his shooting the victim first, thereby
making [the victim] more vulnerable and prone to a second attack.‖ Id. at 369.
The court held that the ―[d]efendant‘s first shot facilitated the second [shot by the
―arm‖] and, therefore, the offense.‖ Id.
The reasoning in Ochoa, Kukis and Cooks is relevant here, because there
was evidence from which the jury could infer that Harris and Tann were aware that
other gang members, too, were shooting at Harrison, prompted by the altercation
between Harrison and Tyndle. Under the rationale of these cases, even if Tann and
Harris were not aware of the presence and participation of each one of the 22nd
Street crew-member shooters and did not know who fired the fatal shot, they could
be held liable as aiders and abettors of whichever other crew-member shooter —
including Foreman — was the principal (whose action was facilitated and
encouraged by Harris‘s and Tann‘s own actions).
Haynes v. Commonwealth, 515 S.W.2d 240 (Ky. 1974), a case discussed by
our dissenting colleague, is also helpful to our analysis. The question addressed in
that case was, ―under what circumstances does a person engaged in an affray
72
become an aider and abettor of another who intervenes uninvited, even assuming
that they share the criminal intent or purpose‘‖ (quoting Whitt). The facts were
that ―appellants John Robert and Tounsel Haynes[] were engaged in . . . a ‗shoot-
out‘ with William Caudill‖ when their father, ―appellant Joe Haynes[,] armed
himself with a rifle, went to the scene of the affray, and shot and killed Caudill.‖
515 S.W.2d at 240-241. All three Hayneses were indicted for murder and found
guilty of voluntary manslaughter. Id. at 241. The Court of Appeals of Kentucky
held that the evidence did not justify the sons‘ conviction of the father‘s act,
reasoning that there was ―no evidence from which it may be reasonably inferred . .
. that either of the sons sent for the father‖ and ―no evidence even that John Robert
knew he had arrived until after the killing.‖ Id. Further, the court reasoned, ―the
fact that Tounsel may have provoked the encounter‖ ―would not itself amount to
assistance or encouragement.‖ Id. Here, by contrast, the evidence was not merely
that Harris and Tann provoked Foreman‘s encounter with Taylor and Mackey.
Rather, there was evidence from which it could be inferred (1) that Harris‘s and
Tann‘s action in shooting at Harrison was an invitation to (i.e., a ―sending for‖)
22nd Street crew members (who, as discussed above, were participants in an
overall conspiracy ―to assault and kill anyone whose interests were contrary to
those of [appellants] and their associates‖) to come and support Harris‘s and
73
Tann‘s efforts; and (2) that Harris and Tann knew before the fatal shot was fired
that other 22nd Street crew members were in fact joining the affray (even though
there was no evidence that they knew that Foreman in particular was one of the
participants).
In other words, contrary to our dissenting colleague‘s argument, the
Kentucky court‘s decision in Haynes does not undercut our argument that Tann
and Harris could be found guilty of aiding and abetting Foreman‘s shooting of
James Taylor. Given that all three individuals shared the same mens rea to shoot
Harrison and the evidence demonstrated that Tann and Harris reasonably knew that
their actions would incite other 22nd Street crew members to come to their aid, we
think the situation here is more analogous to those in Ochoa and Kukis, where
courts concluded that an individual participating in a criminal mob could be found
guilty of aiding and abetting the commission of a murder by a member of the mob,
even if the aider did not know who exactly from the mob did the actual killing. In
fact, even our dissenting colleague agrees that, in instances of a criminal mob, a
person who ―knowingly attaches himself to a large group‖ may be considered to
have aided and abetted other members of the group to commit illegal acts even
74
though ―he may not know who is in the group or who the principal offenders in it
are.‖
We believe that the case law supports the following propositions rooted in
the common law and incorporated in our aiding-and-abetting statute: (1) the aider
and abettor must have the mens rea of the principal actor, see Wilson-Bey, 903
A.2d at 822, and must have the ―purposive attitude towards‖ the criminal venture
described in Peoni, 100 F.2d at 402; (2) a defendant is not responsible for the
actions of a third-party who, wholly unassociated with and independent of the
defendant, enters into a crime when there is no community of purpose between the
defendant and the third-party, Landrum, 96 S.W. at 588;25 however, (3) the
defendant need not know of the presence of every participant in a group crime
(including the principal) in order to be found guilty under an aiding-and-abetting
theory of liability, Ochoa, 72 P.2d at 617; and (4) where the criteria in (1) above
are met and the evidence at trial proves that the defendants by their action,
25
See also Hopewell v. State, 712 A.2d 88, 92 (Md. Ct. Spec. App. 1998)
(relying on authority that for a defendant to be liable as an accomplice, there must
be ―concert of action or community of purpose existing at the time of the
commission of an offense‖ (emphasis added)) (overruled on other grounds,
Fleming v. State, 818 A.2d 1117, 1123 n. 4 (Md. 2003)).
75
foreseeably (and thus, the factfinder may conclude, intentionally)26 incited action
by a third party who shared in their community of purpose, aiding-and-abetting
liability may be found. Cooks, 625 N.E.2d at 369-70; Kukis, 237 P. at 479. These
principles satisfy the criminal intent element required by aiding-and-abetting
liability and do not run afoul of Wilson-Bey or Peoni.27
Applying these principles to the facts of this case, we think it is clear that
appellant Tann, appellant Harris, and Robert Foreman all possessed the same
criminal state of mind: the premeditated intent to kill Omar Harrison. This intent
shifted to the killing of James Taylor, and the assault of Bernard Mackey, under
26
―A man is held to intend the foreseeable consequences of his conduct.‖
In re Dory, 552 A.2d 518, 522 (D.C. 1989) (Schwelb, J., concurring) (quoting
Radio Officers Union v. N.L.R.B., 347 U.S. 17, 45 (1954)).
27
Because our holding rests in part on foreseeability (and the inference of
intentionality that may be drawn from it), it is not accurate to say, as our dissenting
colleague complains, that our holding is that one can be an aider/abettor by being
an ―inadvertent accomplice.‖ One cannot ―inadvertently‖ aid or abet a principal
when he or she shares the mens rea of the principal and it is reasonably certain that
his or her actions will incite the principal to action because of their shared
membership in a group (e.g., a gang or mob) that has a communal purpose. Our
dissenting colleague also states that our ―community of purpose‖ formulation ―may
exist in the absence of any agreement, understanding, or cooperation between [the
principal and ‗putative‘ accomplice] with respect to the crime in question.‖ We
emphasize that a ―community of purpose‖ necessarily implies that there exists
some tacit, if not always explicit, agreement or understanding between all involved
(such as a code of conduct), even if there is no agreement to commit a specific
crime. See infra n.28.
76
the theory of transferred intent as recognized in our case law and not in dispute
here. (Wesley) Williams v. United States, 881 A.2d 557, 567 (D.C. 2005);
O’Connor v. United States, 399 A.2d 21, 25 (D.C. 1979).
The evidence also established a ―community of purpose‖ between Tann,
Harris, and Robert Foreman, reflecting a uniform and common design among the
three shooters. When word of the confrontation between Alphonce Little‘s
girlfriend and Omar Harrison spread through 22nd Street, Tann, Harris, and Little
rushed with other gang members toward Harrison in anticipation of a
confrontation. The evidence supported a finding that appellants were well aware
that other gang members were in the area and part of the crowd that was involved
in the general attack. Both appellants knew from past experience while in the 22nd
Street Crew that once they began committing acts of violence, other coconspirators
would join them. In fact, the conspiracy among members of the 22nd Street Crew
included the agreement to commit violence against outsiders, like Harrison, who
failed to afford the proper respect to the gang and its territory, and whose
―interests‖ were contrary to that of the gang. Not surprisingly, this is exactly what
happened when Foreman (who we assume was the principal in this incident)
77
opened fire in response to seeing his fellow coconspirators engaged in an attack on
Harrison as their response to Harrison‘s hostility toward Tyndle. 28
We cannot agree with Judge Glickman that, by looking to the foreseeability
to the defendant that his criminal conduct will incite participation by a third party
acting pursuant to a community of purpose, we have expanded the doctrine of
aiding and abetting liability ―without affording the parties the opportunity to
address‖ the ―expan[sion],‖ and that we have thereby been ―unfair to the parties.‖
Both the factor that we refer to as ―community of purpose‖ and foreseeability are
factors whose relevance the parties debated in the trial court from the outset. For
example, Harris‘s counsel argued that the aider and abettor must have ―a
connection with the principal‖ and that there must be ―an association between the
28
We need not find an actual agreement here to commit the specific crime
between the various gang members in the way that we would if the finding of guilt
were predicated on Pinkerton conspiracy liability. ―Aiding, abetting, and
counseling are not terms which presuppose the existence of an agreement. Those
terms have a broader application, making the defendant a principal when he
consciously shares in a criminal act, regardless of the existence of a conspiracy.‖
Pereira v. United States, 347 U.S. 1, 11 (1954) (citing Nye & Nissen, 336 U.S at
620). Nevertheless, the fact that there was a broader conspiracy to kill ―outsiders‖
among the 22nd Street Crew members informs the community of purpose that, as a
factual matter, was shared between Tann, Harris, and Foreman at the time of the
shooting. The existence of the conspiracy was what made it foreseeable to Harris
and Tann that other 22nd Street crew members in the area — including,
unbeknownst to them, Foreman — would respond by joining in the effort to shoot
Omar Harrison.
78
people helping each other.‖ Counsel also discussed with the trial court whether the
principal and the aider/abettor could have ―totally different motives for killing Mr.
Harrison.‖ And, in Harris‘s brief on appeal, he decries the absence of a ―relational
limiting factor‖ for aiding and abetting liability.
The parties also argued in the trial court about the relevance of the
foreseeability of the principal‘s actions. For example, in the course of a colloquy
with the trial court about accomplice liability instructions, Harris‘s counsel, joined
by Tann‘s counsel, argued that for such liability, ―it would have to be reasonable
and foreseeable that, ―if you‘re doing something,‖ ―an unknown person . . . would
respond by shooting.‖ Further, while Harris‘s counsel argued that the evidence
did not support an aiding and abetting instruction because ―[t]here‘s no way Mr.
Harris could have known that somebody across the street who[m] he didn‘t know
was there . . . would have suddenly joined in on this shooting,‖ he explicitly
understood that the government ―keeps trying to say well, yeah, because he‘s on
22nd Street.‖ In other words, counsel understood that one argument being
advanced by the government was that because the shooting took place on 22nd-
Street-crew turf — where the ethos was for crew members to work together ―to
assault and kill anyone whose interests were contrary to those of [crew members]
79
and their associates‖ — Harris and Tann had every reason to expect that when they
started shooting, other crew members who happened to be in the area would start
shooting as well. Defense counsel argued that Foreman made ―a completely
independent decision to start shooting‖ and that there was no way Harris and Tann
―could anticipate that someone he didn‘t know was even present would do
anything, much less start shooting. They made this argument while anticipating
that ―the government may argue that [the defendants] should have know[n] that
[their] act of shooting at a person who had been assaulting a pregnant woman
[Tyndle] would have incited others to shoot as well. And, in fact, the government
did argue, in opposing Harris‘s motion for judgment of acquittal (1) that because
Harris, Tann, and Foreman were ―all members of the charged conspiracy,‖ there
was ―no legitimate argument to make that [they] were acting independently of one
another‖;29 (2) that because there was an ―over-arching conspiracy,‖30 crew
29
Contrary to Judge Glickman‘s suggestion, the evidence did not support a
finding that Foreman‘s decision to join in the shooting was an ―independent
criminal act of another that the defendant[s] did not intentionally encourage or
assist in some way.‖ According to the evidence, Foreman, Harris, Tann, and the
other 22nd Street crew members who joined in the shooting did not act
―independently‖ of each other.
30
As Judge Glickman notes, the government did not rely on the doctrine of
Pinkerton liability in prosecuting Harris and Tann for the Taylor and Mackey
incident, but, as the material quoted in the text shows, it did rely on the existence
of the charged conspiracy to establish why it was foreseeable to Harris and Tann
(continued…)
80
members ―immediately knew what to do31 and reacted in a way to protect the
girlfriend of their co-conspirator‖; (3) that Foreman ―did exactly what [defendants]
had every reason to believe [he] would do‖; and (4) that, in light of Foreman‘s
membership in a conspiracy that ―will protect . . . their members at all costs,‖ ―[i]t
was certainly foreseeable that when Harris [and Tann] began shooting . . ., other
co-conspirators, [they] may not have known exactly who, would assist in [their]
efforts.‖ Thus, is fair to say that one express theory of the prosecution was that
(…continued)
that Foreman and other 22nd Street crew members would respond as they did, by
joining in the shooting. This did not amount (and our analysis does not amount) to
conflating Pinkerton liability and aiding-and-abetting liability (which requires a
mens rea that Pinkerton does not). See Wilson-Bey, 903 A.2d at 840-41. Rather
than conflation of theories of liability, our analysis reflects a recognition that
―[t]ypically, the same evidence will support both a conspiracy and an aiding and
abetting conviction.‖ United States v. Vasquez, 677 F.3d 685, 695 (5th Cir. 2012)
(internal quotation marks omitted).
31
In closing argument, the prosecutor continued that theme:
Now, what does Robert Foreman tell you? . . . I hear
shots. So what do I do? These are my boys. I turn
around, and I start shooting.‖ . . . I hear the shots. I
don’t even have to think. I turn around; I start shooting.
81
Harris and Tann foreseeably (and thus intentionally, the jury could find)
encouraged an attack on Omar Harrison by a group that included Foreman.32
Moreover, in a memorandum regarding proposed jury instructions, Harris‘s
counsel told the court that the defense had looked for but had been ―unable to find
a fact pattern matching the one in this case,‖ but found cases ―across jurisdictions‖
(purportedly) requiring, for joint liability, ―that the defendant had knowledge of the
other principal involved in the event.‖ Having undertaken such a search,
appellants cannot be surprised that this court, too, has scoured common-law cases
on accomplice liability and has relied on factors that these cases recognized as
relevant. The case law discussed herein was equally available to the parties as part
of their research.
All the foregoing examples show that the parties had ample opportunity to
debate, and did debate, the relevance of the factors on which we rely for our
holding.
32
Again, we rely on the principle that Harris and Tann could be found to
have intended the reasonably foreseeable consequences of their acts. See supra
note 26.
82
Judge Glickman‘s analysis suggests that after Peoni and Wilson-Bey, Harris
and Tann may not be found liable for the foreseeable shooting their actions
inspired. But what Peoni established is that ―the probability that the forbidden
result would follow upon the accessory‘s conduct‖ does not suffice; rather, to incur
aiding and abetting liability, the defendant must ―in some sort associate himself
with the venture, . . . participate in it as in something that he wishes to bring about,
. . . seek by his action to make it succeed[,]‖ and have a ―purposive attitude
towards it.‖ 100 F.2d at 402.33 The evidence at trial amply supported a finding
that Harris and Tann each associated himself with the vendetta against Harrison,
participated in it as in something that he wished to bring about, sought by his
action to make it succeed, and displayed a purposive attitude towards it, as Peoni
requires for aiding and abetting liability. What Wilson-Bey and its progeny require
is that the aider and abettor share the mens rea of the principal; it is not enough for
33
Judge Glickman also observes that, of the five cases that we cite to, four
were decided before Peoni, and one was decided under a statute that has no
counterpart in this jurisdiction. With regard to the four pre-Peoni cases, it does not
matter that the Kentucky, New Mexico, and Utah cases were decided beforehand
because those cases do not conflict with Peoni‘s principal holding. In none of the
four cited cases is there any dispute that the aider/abettor shared the same mens rea
as that of the unknown or inadvertent principle. With regard to the Illinois case
Cooks, the ―common design or community of unlawful purpose‖ doctrine of
proving an intention ―to promote or facilitate a crime‖ is rooted in the common
law, and not found in the statute. See Cooks, 625 N.E.2d at 368-69; see also
People v. Foster, 556 N.E.2d 1214, 1219 (Ill. Ct. App. 1990).
83
aiding and abetting liability that a defendant could reasonably have foreseen what
the principal would do. Here, there is no dispute that the evidence sufficed to show
that Harris and Tann shared Foreman‘s intent to kill Harrison. The question is
whether, sharing that intent, they may be held liable under an aiding and abetting
theory for initiating a shooting incident that they had reason to foresee would cause
(and did cause) other gang members to join in the shooting. Neither Peoni nor
Wilson-Bey requires us to answer that question in the negative.34
We would reach a different conclusion had there been no evidence
establishing community of purpose between Tann, Harris, and Robert Foreman,
and if the evidence had not supported an inference that Harris and Tann knew that
fellow 22nd Street crew members were joining in the assault and that it was
34
Judge Glickman notes that this court ―declared in Wilson-Bey that it is a
‗requirement [for aiding and abetting liability] that the accomplice be shown to
have intended that the principal succeed in committing the charged offense‘‖ and
further stated in Little v. United States, 989 A.2d 1096, 1102 (D.C. 2010), that the
―aider or abettor must have knowingly aided the other person with the intent that
the other person commit the charged crime.‖ It is consistent with Wilson-Bey and
Little for us to hold more specifically here that the aider/abettor must ―have
intended that the principal (whoever, among his associates who could reasonably
be expected to participate pursuant to a common purpose if present on the scene,
that principal might turn out to be) succeed in committing the charged offense‖
and ―must have knowingly aided the other person (whoever, among his associates
who could reasonably be expected to participate pursuant to a common purpose if
present on the scene, that person might turn out to be), with the intent that the
other person commit the charged crime.‖
84
foreseeable to Harris and Tann that any fellow crew members who were in the area
would do so. If the facts were such as those in Landrum, where there was no
evidence of a community of purpose between the defendant aider and abettor and
the principal, then the evidence would be insufficient. But the evidence was that
Foreman, a gang member who lived around 22nd Street and was acquainted with
Harris and shared guns with him, was about to step in to respond to the Harrison-
Tyndle altercation until he perceived that Harris and others ―got it,‖ and then
joined in the shooting when ―getting it‖ — the common purpose and design —
escalated to that level. And, as in Cooks, Tann‘s and Harris‘s actions of initiating
the shooting, and rendering the target more vulnerable, facilitated and encouraged
Foreman‘s joining in the gunfire to help his 22nd Street Crew cohorts. 625 N.E.2d
at 369-70. The fact that Tann and Harris were unaware of Foreman‘s presence
until after Foreman (presumably) fired the fatal shot does not make the
government‘s evidence legally insufficient.
The dissent derides our reasoning as a ―novel theory of [our] own devising.‖
We think the cases discussed above, decided decades (and, in one instance, a
century) ago, show that our theory is not at all novel. Rather than of our own
devising, it is authorized as an incremental development of the common law, from
85
reasoning that is implicit in the decades-old cases we have cited.35 The fact that
there seems to be no reported case that has articulated the theory precisely as we
have is hardly surprising because, as the trial court and the parties all agreed, the
facts of this case are ―very odd‖ and ―rare.‖ And, however imprecise the rule we
announce may be, it is anchored to, and limited in application by, the detailed and
unusual facts of this case.
Accordingly, for the foregoing reasons, we deny appellants‘ claims related
to the sufficiency of the evidence. We also deny appellants‘ claims related to the
curtailment of their closing arguments when the trial judge prevented them from
arguing that aiding-and-abetting liability required the government to prove that the
accomplice intended to help a known and particular principal commit the charged
offense. In this respect, the trial judge acted correctly because he prevented a
35
As the highest court of this jurisdiction, we of course have the ―power[]
[and the responsibility] to develop the common law for the District of Columbia,‖
Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965), ―as
new circumstances and fact patterns present themselves.‖ Rogers v. Tennessee,
532 U.S. 451, 461 (2001). As far as we can tell, no other reported opinion has
considered whether there can aiding and abetting liability on facts such as those
presented here: a principal whose particular presence was not known to the
defendants, but who, because of his membership in an over-arching conspiracy
with the defendants, was foreseeably incited to join in the defendants‘ criminal
conduct. We must answer the question on our own, and we do so in a way that we
believe is consistent with the pronouncements in aiding-and-abetting case law, in
all their variations.
86
misstatement of the law. See United States v. Gaines, 690 F.2d 849, 858 (11th Cir.
1982) (no error where the trial ―court properly prevented defense counsel from
arguing to the jury a false legal proposition‖); see also Hager v. United States, 791
A.2d 911, 913 (D.C. 2002) (trial court acts properly where it ―exclude[s] . . . those
statements that misrepresent the evidence or the law‖).
However, we conclude that the trial judge committed instructional error
when he told the jury that a defendant can be found liable as an aider and abettor
―if [he] knowingly aid[s] and abet[s] the crime without knowing who else is doing
it,‖ without requiring that the jury also find a community of purpose between the
principal and the accomplice. Nevertheless, using any test for error, we conclude
that appellants were not harmed. The jury convicted both Tann and Harris of
Count 1 of the indictment, which alleged that appellants were involved in a
criminal conspiracy with other members of the 22nd Street Crew to kill persons,
such as Omar Harrison, whose ―interests‖ were contrary to that of the
coconspirators. Count 1 included Foreman as a named coconspirator. Given the
jury‘s finding on the conspiracy count, and given the other evidence presented
regarding the behavior of Robert Foreman, Harris, Tann, and other gang members
at the time of the shooting of James Taylor and Bernard Mackey, we find that there
87
is no reasonable possibility, even had the jury found that Foreman was the
principal in the James Taylor-Bernard Mackey incident, that it would have failed to
find that Tann, Harris, and Foreman were part of a group that shared the common
purpose and design to murder Omar Harrison and that Harris and Tann intended to
aid any of their fellow crew members who were present and participating in doing
so.36 See Fortson v. United States, 979 A.2d 643, 661 (D.C. 2009); Tyree, 942
A.2d at 638-40; cf. Wilson-Bey, 903 A.2d at 844-45. Therefore, appellants are
entitled to no relief.
D. Beaver’s Conviction: Obstruction of Justice
Count 25 of the superseding indictment in this case read as follows:
Between on or about April 30, 2004, and on or about July
11, 2006, within the District of Columbia, Lannell N.
Cooper . . . Michael D. Tann . . . Dajuan D. Beaver . . .
and Brian K. Gilliam . . . corruptly persuaded, and
endeavored to cause or induce, Laquanda Johnson, with
the intent to persuade her to influence, delay, and prevent
the truthful testimony of her sister, Kyara Johnson, a
witness in an official proceeding, to wit, United States v.
Lannell Cooper . . . then pending in the Superior Court
for the District of Columbia.
36
We respectfully disagree with our dissenting colleague‘s suggestion that
appellants Harris and Tann ―did not intend to aid or abet anyone (other than
themselves)[.]‖
88
On appeal, appellant Beaver makes the argument that although there was testimony
at trial that he was involved in the search for both Johnson sisters in the run-up to
appellant Cooper‘s 2006 trial in an effort unlawfully to influence their testimony
separately, there was insufficient evidence admitted to prove that he committed the
particular actions alleged by Count 25, i.e., that he attempted to use Laquanda as
an instrument to influence Kyara‘s testimony against Cooper. In substance,
Beaver alleges that what was charged was at variance with the evidence elicited at
trial.
Alphonce Little testified that, shortly after Cooper was confined on April 30,
2004, for the Terrence Jones murder, Beaver told Little that Kyara Johnson was
cooperating with the government. Moreover, Little stated that Beaver also told
him 17th Street gang members Brian Gilliam and Tyrell Hargraves, close friends
of Cooper and allies of the 22nd Street Crew, would be ―handling the situation‖
with regard to Kyara. Little also testified that he saw Beaver meet with Gilliam
and Hargraves multiple times on 22nd Street after Cooper was arrested. Around
this time, Beaver also expressed to Little his opinion that the witnesses who were
snitching on Cooper ―[s]hould be dead.‖ While in jail, Cooper told Little over the
phone that a friend of his was coming to 22nd Street and Little should identify
89
Kyara for him. On the same day as Alphonce Little‘s conversation with Cooper,
Gilliam came to the neighborhood and met Little in a parking lot. Gilliam was
seated in a car with a gun in his lap and asked Little ―Where that bitch at[?]‖ and to
―point [Kyara Johnson] out.‖
Furthermore, gang ally Dewey Chappell testified that Beaver told him that
both of the Johnson sisters were ―supposed to be testifying for the government.‖
Chappell then traveled to 22nd Street ten to twenty times in an attempt to find the
sisters with the intent to offer them marijuana and money ―to not testify‖ or to
―change their statement.‖ Because Chappell did not know what the sisters looked
like, Beaver tried to help him find them.
There was also testimony at trial about the nature of the relationship between
the sisters. Laquanda Johnson, as the older sister, was known to be ―a sort of
middleman‖ or ―gatekeeper‖ between Kyara and persons seeking access to her, at
least for members of the 22nd Street Crew who were looking for Kyara in the
aftermath of the Terrence Jones murder. An investigator assigned to Cooper‘s
defense team for his 2006 trial for the murder of Terrence Jones testified during the
instant case that his ―best chance to speak to [Kyara] was through [Laquanda].‖
90
Although Beaver styles his claim as one attacking the sufficiency of the
evidence, it is better cast as an argument alleging a fatal variance between the
proof and the pleadings. See (Royce) Robinson v. United States, 697 A.2d 787,
788-89 (D.C. 1997). Beaver does not dispute that the government presented
sufficient evidence that Beaver was looking for both sisters in order to prevent the
truthful testimony of at least one of them. Beaver‘s complaint is that the criminal
offense did not happen in the way alleged in the indictment – that he did not
attempt to persuade Laquanda to influence Kyara‘s testimony.
Two kinds of problems arise when there is a deviation
from an indictment. An amendment of the indictment
occurs when the charging terms of the indictment are
altered . . . . A variance occurs when the charging terms
of the indictment are left unaltered, but the evidence
offered at trial proves facts materially different from
those alleged in the indictment.
(Terrence) Ingram v. United States, 592 A.2d 992, 1005 (D.C. 1991) (emphasis
omitted). A ―constructive amendment of the indictment can occur if, and only if,
the prosecution relies at the trial on a complex of facts distinctly different from that
which the grand jury set forth in the indictment.‖ Baker v. United States, 867 A.2d
988, 999 (D.C. 2005) (emphasis omitted) (quoting Carter v. United States, 826
A.2d 300, 306 (D.C. 2003)). In a variance, the proof at trial does not show such a
distinctly different ―complex of facts,‖ nor does the proof differ from the ―essential
91
elements‖ of the offense charged in the indictment. Marshall v. United States, 15
A.3d 699, 710 (D.C. 2011). ―In contrast with an amendment, a variance will not
warrant dismissal except upon a showing of prejudice.‖ (Terrence) Ingram, 592
A.2d at 1006 (internal quotation marks omitted). ―A variance is prejudicial if it
either deprives the defendant of an adequate opportunity to prepare a defense . . .
or exposes him to the risk of another prosecution.‖ Zacarias v. United States, 884
A.2d 83, 87 (D.C. 2005).
Here, because the purported discrepancy between the proof elicited at trial
and the language of Count 25 did not show a ―complex of facts distinctly different
from that which the grand jury set forth in the indictment,‖ the issue is one of a
potential prejudicial variance. A constructive amendment is not found where the
proof at trial reflects the same facts as those alleged in the indictment regarding
time, place, individuals, and core criminal behavior. See Carter, 826 A.2d at 306-
07.
Both the evidence at trial and the indictment reflected events that occurred at
the same time (between the date of Cooper‘s arrest for the Terrence Jones murder
and Cooper‘s 2006 conviction), in the same general location, by the same
92
individuals (22nd Street Crew members, including Beaver, and other gang allies),
and targeting the same ultimate victim, Kyara Johnson. See id. at 306.
Additionally, both the indictment and the evidence at trial showed the same overall
substantive criminal behavior: an attempt by Beaver and others to commit the
offense alleged by the grand jury – to intimidate Kyara Johnson for purposes of
affecting her testimony and the outcome of Cooper‘s 2006 trial. See Baker, 867
A.2d at 999. The possible disparity between the indictment and the evidence was
in manner of the offense only.
Moreover, as Beaver did not raise the issue of either constructive
amendment or prejudicial variance at trial, we must review his claim under the
plain error standard.37 ―Under the plain error doctrine, appellant must establish (1)
that the trial court committed error; (2) that the error was plain, i.e., clear or
obvious; (3) that the error affected substantial rights; and (4) that a failure to
correct the error would seriously affect the fairness, integrity, or public reputation
37
Even if we were to find a constructive amendment here, our review would
still be for plain error. O’Brien v. United States, 962 A.2d 282, 321 (D.C. 2008)
(―Since appellant did not raise her claim of constructive amendment in the trial
court, our review . . . is for plain error.‖); cf. Peay v. United States, 924 A.2d 1023,
1027 (D.C. 2007) (―If there has been a constructive amendment to an indictment,
and the issue has been properly preserved for appeal, per se reversal is required.‖).
93
of judicial proceedings.‖ Marshall, 15 A.3d at 710 (internal quotation marks and
emphasis omitted) (citing United States v. Olano, 507 U.S. 725, 732-36 (1993)).
We find no plain error. First, we are not convinced that the trial court
committed ―clear‖ or ―obvious‖ error by failing to identify, sua sponte, that the
variance between the government‘s proof and the indictment was material. The
evidence was that Beaver repeatedly attempted, on behalf of Cooper, to identify
Kyara and Laquanda Johnson for gang members and allies who were looking to
obstruct justice. Considering this evidence in the context of Laquanda‘s reputation
in the community as the ―gatekeeper‖ for persons seeking to access Kyara, the
court (and the jury) could have reasonably inferred: that Kyara was Beaver‘s
primary focus, that his interest in finding Laquanda was fueled by his concern that
Kyara would give testimony unfavorable to Cooper, and that Beaver wanted to use
Laquanda to influence Kyara‘s testimony. See Marshall, 15 A.3d at 711 (variance
not plain error where the factual theory pursued by the government at trial ―was
not entirely divergent from that proffered by the government before trial‖).
Moreover, even assuming that any error was clear or obvious, Beaver has
not identified how the variance resulted in surprise, lack of notice, risk of double
94
jeopardy, or some other way in which his substantial rights were impacted. Carter,
826 A.2d at 307 (―A variance may be prejudicial if . . . the accused . . . was so
surprised by the proof that he was unable to prepare his defense adequately.‖)
(internal quotation marks omitted); Pace v. United States, 705 A.2d 673, 677 (D.C.
1998) (―A variance may prejudice a defendant such as by (1) depriving him of
adequate pretrial notice of the details of the charge against which he must defend,
and/or (2) depriving him of protection against reprosecution.‖). Nor does he
contend that his defense, which was that the testimony of Alphonce Little and
Dewey Chappell was untrue, would have been different if there had been no
variance. Zacarias, 884 A.2d at 89. Finally, we are confident that there was no
error that seriously affected the fairness, integrity, or public reputation of judicial
proceedings, especially given that Beaver now concedes that the evidence was
sufficient that he did, in fact, obstruct justice with regard to both of the Johnson
sisters. See Marshall, 15 A.3d at 711.
E. Beaver’s Conviction: Carrying a Pistol Without a License
(“CPWL”)
Count 47 of the superseding indictment charged that on or about July 11,
2006, the day of Laquanda Johnson‘s murder, Beaver carried a pistol without a
license. Alphonce Little testified that shortly before he killed Laquanda, he saw
95
Beaver with ―a nine‖ (the parties agree that this referred to a 9mm semi-automatic
pistol) in his possession. Little further testified that he and Beaver initially
planned that Beaver would shoot Laquanda and Kyara Johnson, and that Beaver
declared that ―he was going to do it[;] he was going to kill them‖ because ―they
[the Johnson sisters] got to go.‖
However, Beaver eventually persuaded Alphonce Little to carry out the
shootings instead. Little obtained a different weapon, a ―.45,‖38 which he used to
kill Laquanda Johnson and shoot Keisha Frost. Following the shooting, Little,
Beaver, and Rushing, traveled to Maryland where Beaver took the murder weapon,
and the hoodie that Little had been wearing, and hid these items near the porch of
his mother‘s house.39 The 9mm pistol that Beaver was carrying earlier in the
evening was never recovered by investigators.
38
Although not clearly articulated in testimony, the only reasonable
inference was that the term ―.45‖ referred to a .45 handgun.
39
The government does not argue that the CPWL conviction can be
supported based on Beaver‘s possession of the .45 handgun because there was no
evidence that Beaver possessed the weapon in the District of Columbia. See
Joiner-Die v. United States, 899 A.2d 762, 765-66 (D.C. 2006) (Superior Court
jurisdiction limited to acts which occur within the boundaries of the District of
Columbia).
96
Beaver argues that his CPWL conviction was based on insufficient evidence
because there was no evidence, direct or circumstantial, that his 9mm pistol was
operable as required by the law at the time of trial.40 In re R.S., 6 A.3d 854, 859
(D.C. 2010). Beaver specifically contends that there was no demonstration by the
government of his ―active reliance‖ on the weapon which might constitute
circumstantial evidence of operability.
In cases such as this one, where there is no evidence that the defendant fired
the firearm, its operability may be established by circumstantial evidence,
including evidence that ―affirmatively demonstrated [the defendant‘s] belief that it
was operable.‖ Id. at 860. This court held in In re R.S. that evidence that the
defendant displayed a firearm for the purpose of threatening a victim – conduct
that was accompanied by verbal threats to the effect that ―if you step out here, you
see what I got‖ – was sufficient to demonstrate the defendant‘s reliance on the
operability of the firearm. Id. Similarly, this court has held in other cases that
evidence of operability was sufficient where: one defendant was ―waving his gun‖
while a second defendant ―stuck a gun into [the victim‘s] back‖; a defendant was
seen ―displaying a gun to back up his demands‖; and a defendant was identified
40
Operability is no longer an element of CPWL. See Snell v. United States,
68 A.3d 689, 692 n.4 (D.C. 2013).
97
―wield[ing a] sawed-off shotgun in a menacing manner, knocking on the car
window and waving it at [the victims].‖ Peterson v. United States, 657 A.2d 756,
763 (D.C. 1995); Bartley v. United States, 530 A.2d 692, 693-94 (D.C. 1987);
Morrison v. United States, 417 A.2d 409, 413 (D.C. 1980).
In those cases, the inference of the assailants‘ reliance on their weapons‘
operability rested on reasoning that, through their display of the weapons, the
assailants ―intended that their victims believe[] that the weapons were capable of
being discharged.‖ Bartley, 530 A.2d at 698. There is no such evidence in this
case. During the period of time when Beaver was supposed to commit the murders
personally, he never indicated that he would use his 9mm. And once Beaver
persuaded Alphonce Little to carry out the shootings, Beaver did not offer Little
the use of his 9mm; instead, Beaver stood by while Little and Dwayne Wright
retrieved a different gun from inside Wright‘s house.
This set of circumstances does not support an inference of operability. Price
v. United States, 813 A.2d 169, 173 (D.C. 2002) (evidence was insufficient to
support CPWL conviction where defendant held a weapon at his side while his
companions shot and killed their victim because ―(1) the witnesses testified that
98
Price never pointed his weapon at anyone; and (2) he was never left on his own to
control the victim without the assistance of his cohorts, who clearly had operable
weapons.‖). In this case, like in Price, ―[t]he government simply failed to present
evidence establishing either that [Beaver] fired his weapon, pointed it, or otherwise
affirmatively displayed a belief that his weapon was operable[, and] the evidence
here tends to dispel the notion that [Beaver‘s] weapon could fire.‖ Id. Therefore,
we vacate Beaver‘s CPWL judgment of conviction.
F. Cooper’s Conviction: Laquanda Johnson Murder Under Pinkerton
Cooper makes a multi-pronged attack on his conviction for the premeditated
murder of Laquanda Johnson under a Pinkerton theory of liability. First, he argues
that the murder occurred while he was in prison and that he had no control or
influence over the actions of those directly involved. Therefore, the murder was
not reasonably foreseeable to him as required for Pinkerton liability. Second, he
argues that the application of this form of liability was unfair to him, and violated
his due process rights on the facts of this case, because ―it [was] based on a
charged ‗conspiracy‘ that [was] far too broad to support the application of a
99
vicarious liability theory.‖41 Finally, his brief implicitly argues that he suffered
from selective prosecution with regard to this particular charge.42
In determining whether a coconspirator may be held liable for commission
of a substantive offense that the defendant did not directly commit, the government
must prove ―that an agreement existed, that a substantive crime was committed by
a co-conspirator in furtherance of that agreement, and that the substantive crime
was a reasonably foreseeable consequence of the agreement between the
conspirators.‖ Collins v. United States, 73 A.3d 974, 982 (D.C. 2013). The
government is not ―required to establish that the co-conspirator actually aided the
perpetrator in the commission of the substantive crime, but only that the crime was
committed in furtherance of the conspiracy.‖ Wilson-Bey, 903 A.2d at 840 (citing
Pinkerton, 328 U.S. at 646-47).
41
Cooper connects this claim to his arguments that the evidence of a single
conspiracy as charged was legally insufficient and the conspiracy charge itself was
overbroad, arguments which we rejected supra.
42
Considering his selective prosecution argument, we conclude that Cooper
has not met his ―heavy burden‖ to establish that ―(1) others similarly situated were
not prosecuted, and (2) the selective prosecution being complained of was
improperly motivated, i.e., it was based on an impermissible consideration such as
race or on a desire to prevent the exercise of constitutional rights.‖ Fedorov v.
United States, 600 A.2d 370, 377 (D.C. 1991) (emphasis omitted).
100
Here, the conspiracy among Cooper and other members of the 22nd Street
Crew between 2003 and 2006 included the agreement to obstruct justice, and the
evidence showed that the coconspirators pursued that goal during the period of
time leading up to Cooper‘s 2006 trial. The record shows that Cooper personally
approached Laquanda Johnson and unsuccessfully bribed her with drugs and
money in an attempt to influence Kyara Johnson‘s testimony at that trial. The
evidence also revealed that Cooper contacted multiple gang members in order to
persuade the sisters (particularly Kyara) to change their statements and some of
these efforts contemplated the use of force.
Moreover, there was evidence to show that the conspiracy to obstruct justice
and prevent the Johnson sisters from doing further damage to the 22nd Street Crew
did not end after Cooper‘s 2006 conviction. Alphonce Little testified that he
murdered Laquanda, and intended to murder Kyara, because they might testify in
the future against ―[a]nybody around 22nd Street, it could [be] me.‖ Little stated
that because the sisters ―told on a murder[, t]hey could have told on me selling
drugs [or] whatever.‖ Because appellants in this case had yet to be charged with
conspiracy, and appellants other than Cooper had yet to be charged for the
Terrence Jones murder-Richard Queen assault, it was foreseeable that the Johnson
101
sisters would continue, notwithstanding Cooper‘s conviction, to have the potential
to harm the gang.43
Furthermore, the conspiracy charged in this case also encompassed the goal
of killing ―snitches‖ whose actions demonstrated ―interests [that] were contrary to
those of the defendants and their associates.‖ In accordance with the overarching
―rule‖ enforced by the 22nd Street Crew that violence was to be inflicted on
―snitches,‖44 it was foreseeable that the Johnson sisters, by cooperating with the
government, would be subject to retaliation by the members of the 22nd Street
Crew who had entered into the charged conspiracy. When Little, Beaver, and
fellow 22nd Street Crew member Dwyane Wright discovered that the sisters had
returned to 22nd Street, they determined, in accordance with the retaliatory goal of
the conspiracy, that the sisters should be killed because of their cooperation with
the government.
43
For example, Kyara‘s testimony in the instant case about appellant Tann‘s
and appellant Arnette‘s involvement in the Terrence Jones murder demonstrated
the continuing threat that Kyara, helped by her sister‘s support, posed to members
of the 22nd Street Crew and the coconspirators in this case.
44
Former gang member Andre McDuffie testified that ―[i]f someone was to
cooperate [with the government]‖ that ―there would be violence inflicted.‖
Alphonce Little testified that an ―automatic‖ rule of the crew was ―[d]on‘t snitch,‖
which ―[came] with the territory of the game,‖ and that nobody who the gang knew
to be a snitch ever came back to 22nd Street.
102
The fact that Cooper was in jail at the time of Laquanda Johnson‘s murder
does not relieve him of liability under Pinkerton. Gatlin v. United States, 925 A.2d
594 (D.C. 2007) provides a useful framework for analyzing Cooper‘s claim. In
Gatlin, the defendant, who was incarcerated at the time of the murder of a
government witness by his coconspirator, challenged the admissibility of the
murdered witness‘s grand jury testimony under the forfeiture-by-wrongdoing
doctrine.45 We held that ―[i]t was reasonably foreseeable that intimidation of and
threats to witnesses could result in the murder of a witness.‖ Id. at 600. The facts
of Gatlin showed that the defendant, while in prison, communicated with his
associates about disposing of witnesses and, much like the facts of this case,
pressuring government cooperators ―to change their story.‖ Id. at 598.
Taken together, the evidence pertaining to the coconspirator‘s goals of
obstructing justice and inflicting violence upon snitches – persons with interests
contrary to those of the 22nd Street Crew members – demonstrated that Laquanda
Johnson‘s murder was reasonably foreseeable to Cooper, despite the fact that he
45
The same forfeiture-by-wrongdoing issue as applied to statements by
Laquanda Johnson is analyzed infra.
103
was in jail at the time. Little‘s act of murdering Laquanda was within the scope of
the conspiracy to obstruct justice by preventing government cooperators, such as
Laquanda and Kyara, from testifying against the 22nd Street Crew, and by
retaliating with violence against persons who collaborated with the government
against the gang. Collins, 73 A.3d at 982-84; Roberson v. United States, 961 A.2d
1092, 1095 (D.C. 2008); Gatlin, 925 A.2d at 600. We further conclude that there
was nothing about the breadth or nature of the conspiracy charged that made
Pinkerton liability unfair to Cooper.
VIII. Procedural and Evidentiary Issues Related to the Conspiracy and
Appellants’ Joint Trial
A. Cooper’s Prior Convictions
Appellants make several arguments involving the admission of Cooper‘s
2006 convictions for the Terrence Jones murder-Richard Queen assault. First,
Tann and Arnette contend that the trial court erred when it refused to sever their
trials from Cooper‘s after it became apparent that both the government and Cooper
intended to put evidence of Cooper‘s prior convictions in front of the jury.
Second, Tann, Arnette, and Cooper make the evidentiary argument that the prior
convictions should not have been admitted against each of them. The government
admits evidentiary error as to Tann and Arnette.
104
Before trial, the government indicated its intent to admit the convictions
because they would provide evidence as to the conspiracy count of (1) the Terrence
Jones murder and Richard Queen assault, which were represented in a series of
overt acts listed in the indictment, and (2) partial motive for the murder of
Laquanda Johnson by appellants‘ coconspirator, Alphonce Little, who sought
revenge against the Johnson sisters for their cooperation with the government in
Cooper‘s 2006 trial that led to his conviction and imprisonment. Cooper wanted
the convictions in evidence because, as we have explained supra, a significant part
of his defense against the Laquanda Johnson murder charge was based on the fact
that he had been convicted of and sentenced for the Terrence Jones murder in 2006
and was in jail at the time of her killing. Therefore, he intended to argue to the
jury that he had known nothing about, and had no involvement with, her death.
Tann and Arnette pointed out in pretrial hearings that this trial was to feature
testimony from some of the same witnesses that had testified at Cooper‘s 2006
trial. They argued that when the jury found out about Cooper‘s convictions, it
would necessarily conclude that the government‘s witnesses in this case were
credible because a previous jury had found them so. The trial court disagreed with
105
appellants‘ contention and found that an instruction would be sufficient to ensure
the jury made proper use of the convictions.
The government, Cooper, and Arnette, mentioned Cooper‘s 2006 conviction
for the Terrence Jones murder during opening statements. The government
informed the jury of the conviction in the context of explaining why Arnette and
Tann were charged with crimes related to the Terrence Jones murder-Richard
Queen assault, but Cooper was not. Cooper mentioned the conviction, but
indicated that the prior verdict was ―incorrect.‖ Arnette stated that another person
– obviously referencing Cooper – had already been convicted of the murder and
that there were witnesses in Cooper‘s trial who had testified that Arnette ―didn‘t do
anything‖ during the incident. No further mention was made of the convictions
until Cooper took the stand in his defense approximately six months later.
During Cooper‘s testimony, the government impeached him with his prior
convictions, including those related to the Terrence Jones murder-Richard Queen
assault. The court gave the jury a standard instruction that prior convictions were
to be considered for credibility purposes only.
106
In final jury instructions, after consultation with the parties, the court further
instructed the jury that:
In addition to considering [Cooper‘s Terrence Jones
murder conviction] when assessing Mr. Cooper‘s
credibility as a witness, you may also properly consider it
in determining whether the government has met its
burden of proof with respect to [the overt act charged in
the indictment pertaining to the Terrence Jones murder]
. . . . You are not required to accept the fact that Mr.
Cooper‘s prior conviction for this offense is conclusive
evidence that the government has met its burden of proof,
but, instead, you may give it[,] like every other piece of
evidence, whatever weight you feel it‘s entitled to
receive. Moreover, you may not consider the prior
conviction as establishing the truthfulness of any of the
witnesses who testified in the prior trial.
The trial court did not distinguish between appellants when describing how this
evidence could be used by the jury. During closing arguments, the government
briefly talked about the prior convictions, again as a reminder to the jury why
Cooper was not charged with Terrence Jones‘s murder, but did not use the
convictions to argue guilt.
1. Error in Admitting Cooper’s Convictions Against Tann and
Arnette
The admission of Cooper‘s conviction against appellants other than Cooper
for the truth of the matters asserted, as proof of an overt act of the conspiracy with
107
which they were charged, was constitutional error as long recognized by case law
and the commentary to Federal Rules of Evidence 803 (22), the federal hearsay
exception for prior judgments of conviction.46 In Kirby, 174 U.S. at 59, over a
century ago, the Supreme Court held that one defendant‘s prior conviction may not
be admitted as evidence against his codefendants. Numerous cases followed
recognizing that holding. See, e.g., United States v. Vandetti, 623 F.2d 1144, 1148
(6th Cir. 1980) (finding a Confrontation Clause violation); State v. Tollardo, 275
P.3d 110, 116 (N.M. 2012) (same); cf. Bisaccia v. Attorney Gen. of N.J., 623 F.2d
307, 311-12 (3d Cir. 1980) (finding a due process violation). Although there is
conflicting authority as to whether this type of error offends the Confrontation
Clause,47 or whether the error affronts fundamental notions of due process,48 or
whether it is a violation of both,49 the error is clearly of constitutional dimension.
46
Fed. R. Evid. 803 (22) advisory committee‘s note: ―[T]he exception does
not include evidence of the conviction of a third person, offered against the
accused in a criminal prosecution to prove any fact essential to sustain the
judgment of conviction. A contrary position would seem clearly to violate the
right of confrontation.‖ (citing Kirby v. United States, 174 U.S. 47 (1899)).
47
See Bisaccia, 623 F.2d at 314 (Seitz, J., concurring).
48
See id., 623 F.2d at 311-12.
49
See United States v. Crispin, 757 F.2d 611, 613 n.1 (5th Cir. 1985)
(―Violation of 803 (22) threatens two important constitutional interests. First, to
the extent that the judgment of conviction reflects another jury‘s verdict . . . it
(continued…)
108
Therefore, the evidentiary error must be analyzed under the constitutional
harmless error standard as articulated in Chapman v. California, 386 U.S. 18
(1967). We may affirm only if we find that ―the government presented
overwhelming evidence of guilt,‖ or more importantly here, if ―it is clear beyond a
reasonable doubt that a rational jury would have found the defendant[s] guilty
absent the error.‖ (Eric) Gardner v. United States, 999 A.2d 55, 58 (D.C. 2010)
(quoting (Edwin) Smith v. United States, 966 A.2d 367, 391 (D.C. 2009)).
We also note that the error had a potential effect on appellants‘ severance
claims. While plausible, Tann and Arnette‘s argument that the prior convictions
would enhance the credibility of the government‘s witnesses had little practical
force, at least at the outset of trial. The government‘s witnesses called to give
evidence about Tann‘s and Arnette‘s participation in Terrence Jones‘s murder and
Richard Queen‘s assault gave often inconsistent and occasionally exculpatory
testimony about Tann and Arnette at both trials. Queen testified in both trials that
(…continued)
trenches upon a defendant‘s due process right to have the government prove every
element of the offense with which he is charged. . . . Second . . . it trenches upon a
defendant‘s right to confront his accusers.‖).
109
Tann had no involvement in his assault or the murder of Terrence Jones.
Similarly, Shaunta Armstrong attested that Arnette was present at the scene of the
crime but did nothing in the attack on Terrence Jones or Queen. Donald Matthews
gave testimony that was very damaging to Tann (identifying him as Queen‘s
shooter), but highly exculpatory to Arnette (indicating that he was not involved in
the joint attack).
Therefore, standing alone, the admission of Cooper‘s convictions against
Cooper would have had little impact on the other appellants.50 However, when the
trial court erred by allowing admission of the convictions for substantive purposes
against Tann and Arnette, it also revitalized appellants‘ arguments that severance
from Cooper‘s trial was required. Consequentially, in addition to analyzing the
evidentiary error under the Chapman standard for harmlessness, we must
simultaneously look to see whether the joinder of Tann and Arnette with Cooper
resulted in ―the most compelling prejudice‖ that would constitute reversible error.
50
Even if appellants had been tried separately, Cooper‘s convictions still
would very likely have been admitted as evidence of Alphonce Little‘s partial
motive to kill Laquanda Johnson for both the conspiracy count and the substantive
counts involving her murder. If properly handled at separate trials, the conviction
simply would not have been admitted as substantive evidence against appellants
other than Cooper – which is also what should (and presumably would) have
occurred in this trial had the trial judge not failed to catch the constitutional error
that flowed from his instruction.
110
Workman v. United States, 15 A.3d 264, 266 (D.C. 2011) (quoting Bailey v. United
States, 10 A.3d 637, 642 (D.C. 2010)).
2. Harmlessness
First, the trial court‘s instruction limited the jury‘s consideration of the
convictions to the overt act in the conspiracy count describing the Terrence Jones
murder. The potential prejudicial effect of the error was greatly reduced, if limited
to that overt act. There were thirty-three overt acts listed in the conspiracy count,
many of which were easily proven by substantial evidence, and only one of which
needed to have been committed by a single defendant and proven beyond a
reasonable doubt in order to establish the conspiracy. Gilliam v. United States, 80
A.3d 192, 208 (D.C. 2013). We recognize, as we have repeatedly done in the past,
that jurors are presumed to follow instructions. See Jordan v. United States, 18
A.3d 703, 709 (D.C. 2011).
However, the overt acts listed in the conspiracy count that pertained to the
Terrence Jones-Richard Queen incident largely mirrored the substantive counts of
murder, assault, and robbery with which Tann and Arnette were charged relating to
the same event, and of which Cooper admitted that he had been convicted. To
111
pretend that there was no danger that the jury could have considered Cooper‘s
conviction as to both the conspiracy count and the substantive counts is to ignore
the reality that instructions are not always effective. See Battle v. United States,
630 A.2d 211, 225 (D.C. 1993) (requiring ―mental gymnastics‖ of the jury may
well be ―troublesome in some circumstances‖); (Oliver) Clark v. United States,
593 A.2d 186, 193 (D.C. 1991) (―Jurors are, of course, presumed to obey the
court‘s instructions, but we have recognized that this doctrine has its limits, for no
juror, no matter how conscientious, can do the impossible.‖) (citations omitted).
Even so, after closely examining the error in the context of the evidence
presented in this case, we find that it was harmless beyond a reasonable doubt
under Chapman. First, while the trial court‘s instruction was flawed in that it
violated Kirby, it did clearly inform the jury that it was not to ―consider the prior
conviction as establishing the truthfulness of any of the witnesses who testified in
the prior trial,‖ which is our principal concern on appellate review, and was the
appellants‘ worry throughout the trial (and is again on appeal) with regard to the
prior convictions.
112
More importantly, because of the nature of the testimony of the
government‘s witnesses who testified about the Terrence Jones-Richard Queen
incident, we are convinced that Cooper‘s convictions had no prejudicial impact on
appellants Tann or Arnette. It was clear that the witnesses who testified at both
trials, while generally giving testimony very damaging as to Cooper, had given
highly contradictory, and often favorable, testimony as to Tann and Arnette.51
Therefore, we see no way that the jury could have considered Cooper‘s convictions
in a manner harmful to Tann and Arnette, other than as proof of the overt act, even
had it ignored or misunderstood the credibility portion of the trial court‘s
instruction.
51
For the same reasons, the government‘s case was not ―overwhelming‖ as
to Tann and Arnette on the Terrence Jones-Richard Queen related offenses.
Although we have found error harmless beyond a reasonable doubt where the
government‘s evidence was otherwise ―overwhelming,‖ see, e.g., (James) Hill v.
United States, 858 A.2d 435, 447 (D.C. 2004), it is not necessary that the evidence
be so in every case where reversal is unwarranted, if the significance of the error is
sufficiently minimal so as to satisfy the constitutional standard. See Fields v.
United States, 952 A.2d 859, 866 (D.C. 2008) (reversing where the court could not
say that the constitutional error did not ―contribute‖ to the verdict because of the
materiality of the error and where the evidence of the defendant‘s guilt was not
overwhelming); McDonald v. United States, 904 A.2d 377, 382 (D.C. 2006)
(examining both the ―centrality‖ of the error and the ―less than overwhelming
strength‖ of the government‘s case when performing a Chapman analysis).
113
Further bolstering our conclusion is the fact that, despite repeatedly
mentioning Cooper‘s prior convictions in the context of explaining its charging and
prosecutorial strategy, the government never argued for the guilt of any appellant
on the basis of those convictions. Paige v. United States, 25 A.3d 74, 84 (D.C.
2011) (weighing ―the fact that the prosecution in no way advanced [the conviction]
as evidence of appellant‘s guilt‖ when assessing prejudice). In light of these
circumstances, and in view of the fact that the jury appears to have carefully parsed
through the complicated testimonial evidence – acquitting Tann and Arnette both
of the most serious first-degree felony murder charges arising out of the incident –
we can say that there is no ―reasonable possibility that the evidence complained of
might have contributed‖ to Tann‘s and Arnette‘s convictions. Chapman, 386 U.S.
at 23. Instead, we are confident that ―the guilty verdict[s] actually rendered in this
trial [were] surely unattributable to the error.‖ Ellis v. United States, 941 A.2d
1042, 1049 (D.C. 2008) (emphasis omitted) (quoting Sullivan v. Louisiana, 508
U.S. 275, 279 (1993)). For the same reasons, we find that Tann and Arnette were
not ―manifestly prejudiced‖ by their joinder throughout this trial. See McAdoo v.
United States, 515 A.2d 412, 420 (D.C. 1986).52
52
Appellants Harris, Rushing, and Beaver do not raise claims related to
Cooper‘s prior conviction. However, they were similarly situated with Tann and
Arnette to the extent that they were charged with the conspiracy count that listed
(continued…)
114
3. Admission Against Cooper
Cooper argues that the trial court committed evidentiary error against him by
admitting his prior judgment of conviction into evidence for the truth of the matter
as an exception to the rule against hearsay. We have not yet addressed the
propriety of adopting Fed. R. Evid. 803 (22).53 Because any error as to Cooper
was clearly harmless, as he was not charged with the substantive offenses
(…continued)
the events of the Terrence Jones-Richard Queen incident as overt acts of the
conspiracy. And the trial court‘s instruction permitted the jury to consider
Cooper‘s prior convictions against each of them as well as Tann and Arnette.
Therefore, the evidentiary error extended to their cases, and we invoke our
discretion to review the impact of that error. See, e.g., Gilliam, 80 A.3d at 205-06;
Walker v. United States, 982 A.2d 723, 738 (D.C. 2009). Nevertheless, any
argument about prejudice to Harris, Rushing, or Beaver by way of the admission of
Cooper‘s prior conviction is even weaker than it is for Tann and Arnette because
Harris, Rushing, and Beaver were not charged with the substantive offenses arising
out of the Terrence Jones-Richard Queen incident. Consequently, the error as to
those appellants was clearly harmless beyond a reasonable doubt.
53
Many state courts have had occasion to adopt the federal rule. See, e.g.,
Flood v. Southland Corp., 616 N.E.2d 1068, 1074 (Mass. 1993) (―Substantially
more than one-half of the States have adopted rules of evidence similar to Fed. R.
Evid. 803 (22).‖); State v. Scarbrough, 181 S.W.3d 650, 660 (Tenn. 2005)
(―Allowing the prosecution to use a final conviction as evidence in [a criminal]
trial is consistent with [the state and federal hearsay exceptions] as well as with the
reality that the conviction is final and may have probative value.‖) (citing United
States v. Pelullo, 14 F.3d 881, 888 (3d Cir. 1994)).
115
underlying the Terrence Jones-Richard Queen incident, we need not reach that
question here.
B. Tann’s Severance Argument Unrelated to Cooper’s Prior
Conviction
Appellant Tann makes the separate argument, for the first time on appeal,
that severance was warranted by the size of the case and the amount of ―spillover‖
evidence that made it impossible for the jury ―not to have been influenced by the
sheer volume and interrelatedness of the testimony.‖ The argument is rooted in
Tann‘s claim that much of the evidence of his codefendants‘ ―bad acts‖ would not
have been admissible had he been tried separately.
―The general rule is that defendants charged with jointly committing a crime
are to be tried together.‖ McAdoo, 515 A.2d at 420. Our decision in Castillo-
Campos is instructive when considering Tann‘s claim here. In Castillo-Campos,
this court concluded that because all three defendants were charged with
conspiracy, they were ―incorrect in arguing that evidence pertaining to their co-
defendants did not pertain to them or had only an improper spillover effect.‖ 987
A.2d at 493. We recited the established rule that ―[i]n a conspiracy case, wide
latitude is allowed in presenting evidence, and it is within the discretion of the trial
116
court to admit evidence which even remotely tends to establish the conspiracy
charged.‖ Id. (quoting (Kevin) Holmes v. United States, 580 A.2d 1259, 1268
(D.C. 1990)).
Obviously, there was extensive testimony and evidence at trial presented
about the 22nd Street Crew and conspiracy count as charged in the indictment;
however, much of it also directly involved Tann. The evidence showed that he
was among the leaders and most active members of the 22nd Street Crew. Tann
was heavily involved in the illegal drug trafficking that was the bulk of the
uncharged offenses elicited by the government and directly involved in three of the
four murders.
As in Castillo-Campos, it cannot be said that the majority of other
appellants‘ ―bad acts‖ did not pertain to Tann or had an improper ―spillover effect‖
on the disposition of his case. And even assuming that some of the evidence might
not have been independently admissible in a separate trial against Tann, severance
would not have been required. See Johnson v. United States, 596 A.2d 980, 987
(D.C. 1991) (―An appellant does not suffer [manifest] prejudice merely because a
significant portion of the government‘s evidence admitted at trial is applicable only
to his codefendants.‖) (internal quotation marks omitted).
117
Likewise, Tann‘s claim that the evidence was too unwieldy for the jury to
keep straight, or that the jury likely grouped the various codefendants‘ actions
together in its decision-making, finds no support in the record. Before opening
statements and prior to deliberations, the court instructed the jury to consider each
offense separately. See Mitchell v. United States, 985 A.2d 1125, 1137 (D.C.
2009). In addition, the jurors deliberated at length and acquitted Tann of several
charges, actions which demonstrated a careful analysis of the merits of each
charge. See Castillo-Campos, 987 A.2d at 493 (noting that the jury acquitted
defendants of several charges when finding that it was able to understand and
process the evidence against each codefendant). In short, Tann has provided no
evidence of ―manifest prejudice‖ that would have required severance of his case.
Accordingly, the trial court did not commit error, let alone plain error.
C. Laquanda Johnson’s Statements Admitted Under a Forfeiture-by-
Wrongdoing Theory
Appellants Cooper, Beaver, and Tann claim that the trial court erred by
admitting several statements by Laquanda Johnson under a forfeiture-by-
wrongdoing theory. Specifically, Laquanda made a number of statements to her
sister, Shaunta Armstrong, and her mother, Karen Bolling, regarding her desire for
118
Kyara Johnson not to testify against Cooper out of fear of retaliation by the 22nd
Street Crew. Bolling testified that Laquanda reported to her the contents of a
conversation that she had with Cooper in which Cooper offered her drugs and
money to keep Kyara off the stand. Further, Laquanda told her mother that Tann
had approached her and made veiled threats about what would happen to her if
Kyara testified. Bolling also reported that Laquanda informed her that
immediately following the Terrence Jones murder, Cooper had said to Laquanda,
―What‘s up L.J.? . . . I just did a nigger up the street.‖
In the course of ruling on motions to suppress, the trial court found that these
statements fit within the forfeiture-by-wrongdoing theory of admissibility because
(1) Laquanda Johnson was murdered, in part, because appellants‘ coconspirator
Alphonce Little wanted to eliminate Laquanda as a future government witness, (2)
her killing was within the scope and in furtherance of the conspiracy, and (3)
Little‘s action was reasonably foreseeable to all appellants, including Cooper,
despite the fact that he was in jail at the time of her murder after being convicted
for killing Terrence Jones.
119
―Under the forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth
Amendment right to be confronted by a witness against him, as well as his
objection to the introduction of hearsay, if he wrongfully procured the
unavailability of that witness with the purpose of preventing the witness from
testifying.‖ Roberson, 961 A.2d at 1095; Devonshire v. United States, 691 A.2d
165, 168 (D.C. 1997). Of course, this theory is not limited to situations where the
defendant personally made the witness unavailable. ―[I]f the defendant conspired
with another to prevent the witness from testifying, forfeiture ensues whether it
was the defendant himself or another co-conspirator who made the witness
unavailable so long as the actor‘s misconduct ‗was within the scope of the
conspiracy and reasonably foreseeable to the defendant.‘‖ Roberson, 961 A.2d at
1095 (quoting United States v. Carson, 455 F.3d 336, 364 (D.C. Cir. 2006)); see
also Jenkins v. United States, 80 A.3d 978, 994-95 (D.C. 2013). We review the
court‘s rulings on admissibility under the forfeiture-by-wrongdoing theory for
abuse of discretion. Jenkins, 80 A.3d at 989.
We find no abuse of discretion in the trial court‘s handling of this issue. The
same conspiracy law principles that justified the use of Pinkerton liability to hold
Cooper accountable for the substantive offense of Laquanda Johnson‘s murder
120
similarly validated the trial court‘s evidentiary finding here. The evidence showed
that Laquanda was murdered by Alphonce Little during the course, and in
furtherance, of the conspiracy to obstruct justice and prevent witnesses such as
Laquanda from testifying against the 22nd Street Crew.
Laquanda Johnson had significant value to the government as a witness,
even after Cooper had been convicted of Terrence Jones‘s murder in 2006. As
Little testified, she had information about illegal activities on 22nd Street by the
22nd Street Crew members.54 Furthermore, Laquanda‘s statements about Tann‘s
and Cooper‘s efforts to obstruct justice, in order to influence her sister‘s testimony
and therefore the outcome of Cooper‘s trial could have been foreseeably admitted
by the government in a future trial against appellants on the conspiracy and
obstruction of justice offenses, with which no appellant had yet been charged as of
the time of Cooper‘s 2006 conviction. As a consequence, Laquanda‘s murder was
reasonably foreseeable to appellants as part of their conspiracy to inflict violence
54
On cross-examination, Cooper‘s defense counsel attempted to elicit from
Little that ―the only reason‖ that Laquanda was killed was in retaliation for her past
cooperation with the government, as opposed to any future threat to the gang.
Little disagreed with the premise of Cooper‘s defense counsel‘s questions and
testified that the murder was also because ―[the sisters] could have been telling on
somebody [in the gang], telling on any other thing.‖
121
on persons, such as government witnesses, with interests contrary to theirs.
Collins, 73 A.3d at 982; Roberson, 961 A.2d at 1096-97; Gatlin, 925 A.2d at 600.
Therefore, we find no abuse of discretion by the trial court.55
D. The Trial Court’s Finding of a Predicate Conspiracy
Tann and Arnette dispute the validity of the trial court‘s determination that a
predicate conspiracy had been established to justify admission of coconspirator
55
Cooper‘s brief makes the related argument that another of Laquanda
Johnson‘s statements admitted into evidence under the forfeiture-by-wrongdoing
theory was inadmissible because it was double hearsay. Laquanda told her sister,
Shaunta Armstrong, that 22nd Street Crew member Eric Dreher stated to Laquanda
that she should ―get Kyara off of 22nd Street and never come back‖ because
Cooper had ―goons out there‖ looking for her. Although Cooper is correct that this
testimony by Shaunta was double hearsay, there were hearsay exceptions at both
levels. As discussed supra, Laquanda‘s statements to Shaunta were admissible
because of forfeiture-by-wrongdoing, which acts as a waiver to both Confrontation
Clause and hearsay objections to admissibility. Dreher‘s statements to Laquanda
were admissible under the coconspirator statement exception to the hearsay rule.
As the trial judge found, there was sufficient independent, nonhearsay evidence
presented that Dreher was a member of the 22nd Street Crew and a member of the
conspiracy charged in this case. This evidence came in the form of testimony by
former gang members Andre McDuffie, Donald Matthews, Devin Evans, Travis
Honesty, and Alphonce Little that Dreher was a high-ranking gang member who
recruited appellant Harris and others to be members of the crew, sold drugs with
other 22nd Street Crew members, and was influential in the gang because of his
willingness to engage in ―acts of violence‖ on behalf of the crew. Additionally,
Dreher‘s statements could have been reasonably viewed as furthering the
conspiracy‘s goal of obstruction of justice by wrongfully discouraging Laquanda
from testifying at Cooper‘s 2006 trial. See Butler v. United States, 481 A.2d 431,
439 (D.C. 1984).
122
statements in furtherance of that conspiracy. At the outset of trial, given the
number of (charged and uncharged) coconspirators that the government alleged to
have participated in the activities of the 22nd Street Crew and the charged
conspiracy, the trial judge was concerned, with justification, about tightly
controlling the admission of coconspirator statements. See Butler, 481 A.2d at 439
(holding the trial judge responsible for determining the admissibility of
coconspirators‘ statements in order to avoid ―the danger that the jury might convict
on the basis of these statements without first dealing with the admissibility
question‖).
In order to better monitor the showing of a predicate conspiracy, the court
ordered the government to ―bifurcate‖ its case-in-chief by opening with a
―conspiracy‖ phase, followed by a ruling from the court as to whether the
government had met its burden of establishing a predicate conspiracy and the
identities of the coconspirators, before the government moved into a ―substantive‖
phase of its case wherein coconspirator statements could be admitted as evidence.
After hearing from the gang ―insiders‖ previously discussed (Andre McDuffie,
Donald Matthews, Devin Evans, and Alphonce Little), and police personnel who
testified about illegal drug activity involving appellants, the court found that the
123
existence of a predicate conspiracy had been established for purposes of the
hearsay issue.
Specifically, the trial court found:
[There] was a conspiracy, among other things, to
purchase, package and [resell] illegal narcotics, to use
weapons and violence to safeguard the conspiracy and
retaliate against those who are not members of the
conspiracy[] and who had attempted to invade the
conspiracy‘s turf, and to promote the reputation of the
conspiracy and its members in the 22nd Street
neighborhood. [56]
56
The trial judge found the existence of a predicate conspiracy that was
similar, but not identical to the one charged in Count 1 of the indictment, i.e., that
appellants and others agreed ―to obstruct justice and to assault and kill anyone
whose interests were contrary to those of the defendants and their associates.‖
Instead, the trial judge appears to have found, for purposes of the evidentiary issue,
that the goals of the predicate conspiracy tracked closely with the ―Objects of the
Conspiracy‖ as listed on the second page of the superseding indictment: to
―retaliate for acts of violence perpetrated against the conspiracy and its members
. . . protect illicit profits generated by the involvement of the conspiracy‘s members
and associates in acts involving . . . trafficking in controlled substances . . . and . . .
protect the conspiracy and its members . . . from conviction for criminal charges,
and to retaliate against anyone who assisted law enforcement officials in the
investigation into and prosecution of members of the conspiracy and their
associates.‖ The trial court did not err in taking this approach to his findings.
―The conspiracy that forms the basis for admitting coconspirators‘ statements need
not be the same conspiracy for which the defendant is indicted.‖ United States v.
Acre, 997 F.2d 1123, 1128 (5th Cir. 1993). Indeed, statements in furtherance of a
conspiracy may be admissible where there is no conspiracy charged in the
indictment at all. United States v. Ayotte, 741 F.2d 865, 869 (6th Cir. 1984).
124
―The trial court‘s decision to admit coconspirator testimony as nonhearsay
will be upheld absent an abuse of discretion.‖ Harrison v. United States, 76 A.3d
826, 834 (D.C. 2013). ―[A] coconspirator‘s out-of-court assertions may be
admitted for their truth only if the judge finds it more likely than not that (1) a
conspiracy existed, (2) the defendant had a connection with the conspiracy, and (3)
the coconspirator made the statements during the course of and in furtherance of
the conspiracy.‖ Jenkins, 80 A.3d at 989-90. Appellants challenge the trial court‘s
ruling as to the first two prongs of the coconspirator statement rule.
Because the court‘s ruling came before the government put on its
―substantive‖ case, the judge did not have the benefit of the facts that went to the
murder charges.57 Nevertheless, the judge made detailed findings as to each
appellant and his membership in a conspiracy that are supported by the facts and
not shown by Tann or Arnette to be clearly erroneous. Id. at 989 (accepting the
factual findings of the trial court unless they are clearly erroneous when reviewing
under an abuse of discretion standard). The trial judge found that the goals of the
conspirators ―were accomplished through the establishment of [and] adherence to
57
In our opinion, this evidence would have significantly strengthened an
already well-reasoned ruling.
125
and enforcement of rules of the group by both threats and violence.‖ The judge‘s
findings sufficiently established the associational connection between the different
appellants, and their joint support of the drug trafficking activities of the 22nd
Street Crew, including the maintenance of its base of operations through acts of
violence, such that there was no abuse of discretion in his ruling on the existence
of a predicate conspiracy.
E. Rap Lyrics and Beaver’s Webpage
At trial, the government introduced the following evidence against
appellants: (1) a rap CD containing songs performed by Rushing and an unindicted
coconspirator, Michael Smith; (2) rap lyrics written by Tann which were found and
read to the jury by his wife, Tracey; and (3) the contents of a webpage that had
been created and posted by Beaver. The court ruled that the statements contained
within these items were made in furtherance of a conspiracy and admissible against
all appellants. Appellants now appeal that ruling.
After the court required the government to make extensive redactions to the
material on the rap CD, the government played approximately twelve minutes of
the Rushing-Smith songs. According to testimony, the songs were being sold and
played openly on 22nd Street. The song lyrics made reference to ―The Deuce,‖
126
―Deuce Mob,‖ and the ―Young Gunz,‖ all names affiliated with the 22nd Street
Crew. The lyrics also referred to the gang nicknames of Rushing, Beaver, Cooper,
and Arnette. Furthermore, the lyrics tended to glorify criminal activities that were
part of the lifestyle of the 22nd Street Crew members, including drug dealing,
killing government informants, and killing rivals.
The government also called Tann‘s wife, Tracey, to give evidence about rap
lyrics that were written by Tann. According to Tracey, the lyrics were part of a rap
project for which Tann had commercial aspirations. Tann‘s lyrics included
references to the 22nd Street Crew‘s nickname ―D.E.U.C.E.,‖ drug dealing, and
violent crime against ―snitches.‖ Tann‘s lyrics also arguably made specific
references to the details of the Leslie Jones murder that were relied on by the
government in its closing argument as evidence of his culpability.58
58
Tann‘s lyrics read: ―Screamin‘ D.E.U.C.E. Allday Southside[.] I hail
from Death Valley[.] Bang my first pistol deep in dog Alley.‖ In closing
argument, the government argued that by these words Tann described the Leslie
Jones murder where he murdered Jones with a gun and then ran down an alleyway
near 22nd Street known as ―Dog Alley.‖ Tyrone Curry, a government witness,
testified that he saw a man who looked like Tann running from the scene of the
Leslie Jones shooting ―toward the dog alley on 23rd Street.‖
127
Finally, the government put on evidence of a ―Black Planet‖ webpage that
was stipulated to have been created and published by Beaver. The webpage
featured pictures of Beaver making hand signs affiliated with the 22nd Street Crew
and a message from Beaver describing himself as ―DEUCEDEUCEBANGA.‖
Beaver implied on the webpage that he was ready to commit violence against any
―dudes‖ that he found to be ―snitchin.‖
Appellants attack the admission of the rap lyrics sung by Rushing and
Michael Smith on several grounds: (1) there was insufficient evidence that either
Smith or Rushing authored the lyrics; (2) Smith was not a proven coconspirator,
and therefore his performance and singing of the song lyrics could not have
reflected statements made in the course of the conspiracy; (3) the lyrics to the
songs themselves were not in furtherance of the conspiracy; and (4) even if
otherwise admissible, the song lyrics were unfairly prejudicial. Appellants‘
primary complaint about Tann‘s lyrics and Beaver‘s webpage is that the statements
were not made in furtherance of the conspiracy.
1. Authorship of the Rap Lyrics on the CD
―A party may make an admission by adopting or acquiescing in the
statement of another. Whether a party has adopted the statement of another is a
128
preliminary question of fact for the trial judge, which is determined by considering
the context and the surrounding circumstances of the claimed adoption.‖ Harris v.
United States, 834 A.2d 106, 116-17 (D.C. 2003) (citations, internal quotation
marks, and alterations omitted). While this rule ―does not require an explicit
statement of adoption,‖ it does require ―some manifestation of a party‘s intent to
adopt another‘s statements, or evidence of the party‘s belief in the truth of the
statements.‖ Bridges v. Clark, 59 A.3d 978, 986 (D.C. 2013).
Here, the ―surrounding circumstances of the claimed adoption‖ are that
Rushing and Michael Smith sang the lyrics to rap songs for the purpose of
recording a CD that was available for purchase and played publicly. There was no
evidence that Smith or Rushing actually wrote or produced the lyrics to the songs.
Appellants argue that the lyrics were created solely for ―artistic,
entertainment purposes,‖ and not as a truthful recitation of events on 22nd Street or
the attitudes of either the producers or singers. While certainly these songs may
have been a form of artistic entertainment to persons listening on 22nd Street,
some entertainment is fictional and some is intended to be a retelling of true and
actual events. And lyrics to any song may well be intended to relay the truth in the
129
eyes of the singer. As the government points out, in these songs, ―the lyrics were
primarily in the first-person and described individuals, places, and activities
specifically related to the 22nd Street Crew.‖ We find that these facts were
sufficient foundation upon which to establish that ―there was an unambiguous
assent‖ by Michael Smith and Rushing to the statements contained in the lyrics that
they sang. See Blackson v. United States, 979 A.2d 1, 7 (D.C. 2009).
2. Whether Michael Smith was a Coconspirator
Michael Smith was identified as a member of the 22nd Street Crew by a
number of the government‘s witnesses: Donald Matthews, Devin Evans,
Alphonce Little, Tracey Tann, Travis Honesty, and Darryl Travers. Honesty and
Travers testified that Smith was a ―hustler‖ who sold narcotics on 22nd Street from
2001 until 2007 or 2008. This testimony reasonably established Smith‘s
membership in a conspiracy, at a minimum, among members of the 22nd Street
Crew to sell illegal narcotics. Matthews‘s testimony that Smith was part of a group
of men who were ―coming up‖ in the organization, no later than 2002, with other
crew members such as Beaver, also established a reasonable basis from which the
trial judge could infer Smith‘s agreement with and support of the more violent
aspects of criminal activity within the 22nd Street Crew. The testimony of the
former gang members acting as government witnesses was that members increased
130
their influence in the organization by committing acts of violence against rivals,
snitches, and other persons at odds with the interests of the organization.
Once the government showed that Michael Smith was a member of the
predicate conspiracy for purposes of the hearsay exception, it was not required to
show that he was still a member of the conspiracy later in time. See United States
v. (Rodney) Moore, 651 F.3d 30, 90 (D.C. Cir. 2011) (―[O]nce a defendant
becomes a member of a conspiracy, he remains a member until he affirmatively
withdraws or the conspiracy ends. Therefore, once the government proves that a
defendant was a member of an ongoing conspiracy, it has proven the defendant‘s
continuous membership in that conspiracy unless and until the defendant
withdraws.‖) (citation omitted). There was no evidence of withdrawal by Smith.
Consequently, there was sufficient evidence reasonably to show that Smith sang
the rap lyrics on the CD during his involvement in the predicate conspiracy.
3. Statements in Furtherance of the Conspiracy
Appellants‘ third argument is that ―the lyrics purportedly authored by
Beaver and Tann and those sung by Rushing and Michael Smith were inadmissible
because there is no evidence that they were written or sung in furtherance of the
charged conspiracy.‖ In countering this argument, the government emphasizes
131
that the statements in the rap songs, in Tann‘s lyrics, and on Beaver‘s webpage,
made reference to the 22nd Street Crew, the members of 22nd Street Crew who
were part of the charged conspiracy, and ―the structure of the conspiracy and the
importance of [the] members‘ continued participation and loyalty.‖ The core of
the government‘s ―in furtherance‖ argument is:
[G]iven that (1) the CD was sold on 22nd Street and was
listened to by conspirators and non-conspirators alike, (2)
the web page was open to public view on the internet,
and (3) Tann had aspired to produce a commercial rap
CD with his lyrics, the statements at issue could be
viewed as promoting the reputation and stature of the
conspiracy in the community by spreading the
conspiracy‘s message of violence and intolerance for
those who would challenge it. [Citations and alterations
omitted.]
We find this line of argument persuasive and supported by case law. In essence,
one message announced by the coconspirators‘ statements was internal and one was
external; the internal message furthered the conspiracy by boosting the morale and
reputation of the coconspirators through the glorification of its activities, while the
external message reduced the likelihood of interference by outsiders with the
coconspirators‘ affairs.
132
We held in (Brian) Williams v. United States, 655 A.2d 310, 314 (D.C.
1995), that if a statement ―can reasonably be interpreted as encouraging [another
person] to advance the conspiracy or serve to enhance the person‘s usefulness to
the conspiracy, then the statement is in furtherance of the conspiracy and may be
admitted.‖ (internal quotation marks omitted); see also Carson, 455 F.3d at 366-
67 (―[I]f the statements can reasonably be interpreted as encouraging a co-
conspirator or other person to advance the conspiracy, or as enhancing a co-
conspirator or other person‘s usefulness to the conspiracy, then the statements
further the conspiracy and are admissible. Such statements include those that . . .
motivate a co[-]conspirator‘s continued participation.‖) (internal quotation marks
and citations omitted). Furthermore, numerous courts have held that threats and
warnings by coconspirators intending to send a message to potential witnesses that
they would be penalized for cooperating with the government are admissible under
the coconspirator statement rule. See, e.g., United States v. Westmoreland, 312
F.3d 302, 309-10 (7th Cir. 2002) (statements admissible because in making them
the coconspirators intended to preserve the conspiracy by frightening potential
witnesses). Similarly, we find that the statements (contained in both the internal
and external message of appellants‘ lyrics) made by the coconspirators and
introduced into evidence advanced, and were in furtherance of, the conspiracy.
133
4. Unfair Prejudice
Appellants‘ final contention is that the rap lyrics and songs were
―substantially more prejudicial than probative‖ because the content was
particularly shocking and violent. This court has never discussed the prejudicial
effect of violent rap lyrics, though other courts have. See, e.g., United States v.
Gamory, 635 F.3d 480, 493 (11th Cir. 2011) (concluding that the playing of a rap
video at trial was ―heavily prejudicial‖ because ―[t]he lyrics presented a substantial
danger of unfair prejudice because they contained violence, profanity, sex,
promiscuity, and misogyny and could reasonably be understood as promoting a
violent and unlawful lifestyle‖ while ―not clearly probative of [the defendant‘s]
guilt‖); State v. Cheeseboro, 552 S.E.2d 300, 313 (S.C. 2001) (finding that the
―minimal probative value‖ of a document containing the defendant‘s rap lyrics was
―far outweighed by its unfair prejudicial impact as evidence of appellant‘s bad
character‖).
Keeping in mind that ―rap lyrics may employ metaphor, exaggeration, and
other artistic devices [] and can involve abstract representations of events or
ubiquitous storylines,‖ (Deyundrea) Holmes v. State, 306 P.3d 415, 419 (Nev.
134
2013) (internal quotation marks and citation omitted), we must consider the
probative value of the evidence. In other jurisdictions, this question has turned on
the specificity with which the lyrics describe the facts surrounding the offense(s)
charged.59 Similarly, we endeavor to determine to what extent the rap lyrics (as
well as Beaver‘s webpage) should be considered ―autobiographical statements of
acts relevant to the case.‖ Stuckey, 253 F. App‘x at 483. This is so as to avoid the
undue risk of the statements ―being misunderstood or misused as criminal
propensity or bad act evidence.‖ (Deyundrea) Holmes, 306 P.3d at 418 (internal
quotation marks omitted).
59
Compare id. at 417-20 (no error where, in the defendant-authored rap
lyrics at issue, the defendant described ―jack[ing]‖ someone for their necklace in a
parking lot while wearing a ski mask, and the defendant was accused of accosting
two men in a parking lot and stealing one man‘s chain necklace while wearing a
ski mask), and United States v. Stuckey, 253 F. App‘x 468, 482-83 (6th Cir. 2007)
(unpublished) (no error where the defendant rapped that he ―kills ‗snitches,‘ fills
their bodies with holes, wraps them in blankets, and dumps them in the road‖ and
the defendant was accused of shooting a man, wrapping his body in blankets, and
dumping it in an alley), with Cheeseboro, 552 S.E.2d at 313 (error where
references to leaving bodies in a pool of blood without fingerprints were ―too
vague in context to support the admission‖ of the rap lyrics because the lyrics
contained ―general references glorifying violence‖ only); see also State v. Hanson,
731 P.2d 1140, 1144 n.7 (Wash. Ct. App. 1987) (error where the defendant‘s
fictional writings were not logically relevant when ―[t]here was no attempt to show
. . . that [the defendant] wrote about an incident so similar to the crime charged‖).
135
Here, the statements were autobiographical in that they discussed the 22nd
Street Crew and its membership, living by the code required by the gang, selling
drugs, killing snitches, and killing rivals. Given that appellants‘ conspiracy charge
was hotly contested by each of them, the probative value of the content of this
evidence was substantial. Considering also, with regard to the lyrics on the CD,
that the trial court carefully reviewed each track of the CD to avoid an unfairly
prejudicial effect (such that 45 minutes of songs were reduced by more than 30
minutes and some tracks were eliminated in their entirety), we believe that the
court did not abuse its discretion when it found that the prejudicial effect of the
evidence did not substantially outweigh its probative value.60 See Legette v. United
States, 69 A.3d 373, 388-89 (D.C. 2013). Therefore, we reject appellants‘ claims.
F. Tann’s Outburst
Appellants Harris and Arnette appeal the denial of their motions for a
mistrial based on an ―outburst‖ by appellant Tann following his verdict.
Approximately two weeks after the beginning of deliberations, the jury returned
60
While there is no abuse of discretion on this record, we could easily
envision a case where lyrics, poetry, or other statements in a form traditionally
understood to be artistic expression were not sufficiently specific to the charged
crime so as to have such important probative value. Evidence that doubles as a
type of art will often be a confusing mixture of truth and fabrication. Therefore,
trial courts must very carefully scrutinize such materials and statements for unfair
prejudice.
136
full verdicts against appellants Rushing and Beaver. The jury announced its full
verdict against appellant Cooper the following day. Eight days later, the jury
returned a partial verdict against Tann, including verdicts on his murder charges.
At the same time, it announced partial verdicts against the remaining two
appellants, Harris and Arnette. The jury found Harris and Arnette guilty of
conspiracy and told the court that deliberations were continuing on their remaining
counts.
Once Tann heard that the jury convicted him of the three murders with
which he was charged, Tann stood up and exclaimed:
I don‘t see how I can get found guilty, and what type of
court is this? I wasn‘t even there. . . . [N]owhere near
. . . . I get found guilty and I‘m innocent. God going to
challenge y‘all for this. I‘ll see y‘all in heaven. . . . I‘m
innocent. How the fuck I get found guilty? . . . That‘s
fucking – that‘s crazy.
While Tann was making these statements, the court attempted
unsuccessfully to call for order. The marshals escorted Tann out of the courtroom
and into the holding cell. As the judge was dismissing the jurors, he told them that
they should understand that the courtroom could be an emotional place, and they
were not to let anything that had just happened impact their remaining
137
deliberations. Harris and Arnette immediately moved for a mistrial arguing that
Tann‘s outburst would prejudice the jury against them, especially since the jury
had already found Harris and Arnette guilty of a conspiracy rooted in obstruction
of justice and violence against participants in the legal process. The trial court
denied their motions.
The following day, while the jury was in deliberations, the court held a more
extensive hearing on the facts surrounding Tann‘s outburst. The court indicated
that it had observed Tann stand up, speak loudly using profanity, and untuck his
shirt while loosening his tie. Prior to escorting Tann out of the courtroom, one
marshal pointed his Taser at Tann but did not fire. The court found that Tann‘s
conduct was not violent or threatening to the jury despite his reference to the
afterlife. Further, the court observed no reaction from the jury that constituted
significant concern. Throughout the incident, Arnette and Harris remained seated
and did not react.
At the motions hearing, both Harris and Arnette reiterated their concerns
about prejudice, and Harris requested that the jurors be made available for voir
dire. Arnette specifically declined to request voir dire. The court denied Harris‘s
138
request reasoning that the danger of voir dire was that it might create more
problems than it solved by triggering safety concerns in the jurors that the court did
not believe that they had.
Several days later, the jury returned the remainder of its verdicts involving
Tann. The jury acquitted him of several charges and convicted him of several
others. In subsequent days, the jury returned separate verdicts against Harris and
Arnette. Unlike Harris, Arnette was acquitted of a number of the charges against
him.
In a post-trial motion for a new trial, Harris‘s counsel alleged that she spoke
with jurors after all of the verdicts had been rendered. According to the motion,
jurors stated that they believed Tann made a death threat against the jury in the
course of his outburst and that they otherwise observed Tann consistently threaten
witnesses throughout the course of the trial. In response, the government noted
that not all of the jurors remained to speak with the attorneys and not all of those
that did speak expressed the same view. While a few referred to a ―death threat,‖
the jurors were not worried – some chuckled when discussing Tann‘s statement
and ―a number of jurors‖ expressly stated that they were not concerned.
139
Furthermore, none of the jurors indicated that they associated Tann‘s statements
with the other defendants.
This court reviews the denial of a motion for a mistrial and the trial court‘s
investigation into jury exposure to unadmitted evidence for an abuse of discretion.
Ransom v. United States, 932 A.2d 510, 517 (D.C. 2007); Al-Mahdi v. United
States, 867 A.2d 1011, 1018-20 (D.C. 2005). A jury‘s exposure to unadmitted
evidence implicates a defendant‘s Sixth Amendment right to an impartial jury. See
Medrano-Quiroz v. United States, 705 A.2d 642, 649 (D.C. 1997).
―Where, as here, the impartiality of [the jury] has been plausibly called into
question, it is the responsibility of the trial judge to hold a hearing to determine
whether the allegation of bias has merit.‖ Id. Upon such a claim, ―it is the
government‘s burden to demonstrate that the [jury‘s] contact with extraneous
information was harmless or non-prejudicial.‖ (David) Hill v. United States, 622
A.2d 680, 684 (D.C. 1993). ―[T]he evidence of record must justify a high degree
of confidence that the likelihood of juror partiality has been rebutted.‖ Al-Mahdi,
867 A.2d at 1019. Otherwise, ―the court is obliged to declare a mistrial‖ or grant
other adequate relief. Parker v. United States, 757 A.2d 1280, 1287 (D.C. 2000).
140
Although a hearing is required, ―the extent and type of the trial court‘s
investigation into the improper contact are confided to the court‘s discretion and
reviewable only for abuse.‖ Leeper v. United States, 579 A.2d 695, 699 (D.C.
1990). There is ―no per se rule that individual questioning of each juror is always
required,‖ and ―the trial judge has broad discretion to fix the exact procedures by
balancing the need to make a sufficient inquiry against the concern that the inquiry
not create prejudicial effects by unduly magnifying the importance of an
insignificant occurrence.‖ Al-Mahdi, 867 A.2d at 1019 n.13 (citations and
alterations omitted).
Harris and Arnette argue that the jurors might have viewed Tann‘s
statements as a threat against them and paired that statement with the government‘s
allegations that the coconspirators had agreed to retaliate against anyone who
undermined the conspiracy. In doing so, appellants argue that the jury might have
considered Tann‘s outburst as direct evidence of their guilt of the violent offenses
(associated with the Terrence Jones-Richard Queen and James Taylor-Bernard
Mackey incidents) of which they had not yet been convicted. Furthermore, the
jury may have feared that Harris and Arnette, if acquitted, would carry out Tann‘s
threat against them.
141
Even taking the jury‘s disputed post-trial statements for all they are worth,61
the trial court did not abuse its discretion in denying the motion for a mistrial
without questioning the jurors. Tann‘s statements did not expressly implicate his
codefendants in any way; the trial court gave a prompt curative instruction, even
taking care to do so sua sponte to avoid the jury linking Tann‘s comments to either
of his codefendants;62 and the jury did not contact the judge about the outburst or
register any sort of anxiety, even though it had previously demonstrated its
willingness to reach out to the court with questions and concerns. Finally, the
court properly considered the risk that further investigation would turn an
insignificant matter in the jurors‘ minds into a significant one – a possibility that
61
The rule regarding juror‘s post-trial statements is that ―inquiry [is
allowed] into the existence of conditions or the occurrence of events,‖ but not
―inquiry into the thought processes of the jurors.‖ Fortune v. United States, 65
A.3d 75, 83 (D.C. 2013). Applied to this case, the Fortune rule means that the
jurors‘ statements may be used to challenge the trial judge‘s determination that
Tann‘s statements did not constitute a threatening or violent event, but not to show
the effect Tann‘s statements had on the jury‘s deliberative process.
62
Out of the jury‘s presence, the court added that it deliberately gave its
instruction ―in a way that didn‘t look like it was coming as a request from counsel,
but from me.‖
142
was well within his discretion to take into account.63 Al-Mahdi, 867 A.2d at 1019
n.13.
In arguing otherwise, appellants rely on several of this court‘s decisions,
none availing. The cases they cite involved allegations of juror bias that turned on
facts that the trial court had no way of learning about without questioning the
jurors. See Al-Mahdi, 867 A.2d at 1021 (juror contact with third party), Ransom,
932 A.2d at 515-20 (extraneous information in jury room); Parker, 757 A.2d at
1285-87 (juror contact with third party); Artisst v. United States, 554 A.2d 327,
330-32 (D.C. 1989) (juror dishonesty in pretrial voir dire about acquaintance with
defendant). It is crucial here, by contrast, that the trial judge actually observed
Tann‘s outburst and viewed its effect (or lack thereof) on the jury when
determining the correct course of action. We find no abuse of discretion in his
choice.
63
Notably, Arnette‘s counsel stated that he agreed with the trial court‘s
decision to not voir dire the jury for the reasons articulated by the court in its
ruling.
143
IX. Pretrial and Trial Issues Unrelated to the Conspiracy or Joint Trial
A. Evidentiary Issues
1. Search of Beaver’s Jail Cell
Approximately one year before trial in this case was about to begin, Cooper
and Beaver met Freddie Lee Bailey, another prison inmate, while the three were in
a holding cell. Cooper asked Bailey whether he was housed on the same floor as
several of the known government cooperators in this case. Cooper further inquired
whether Bailey would be interested in assaulting the government‘s witnesses in
various ways. Bailey testified that he refused Cooper‘s solicitation.
Subsequently, because Beaver was temporarily a government cooperator, he
was transferred to a part of the jail where other government cooperators, including
Freddie Lee Bailey, were housed. Beaver remained there even after his
cooperation ended and proceedings in this case started. While this trial was
ongoing, Beaver sent a letter to Bailey stating that his temporary cooperation was
merely for purposes of disrupting the government‘s case. Bailey reported this
information to prison officials, which resulted in a search of Beaver‘s jail cell and
the seizure of a second letter from his trash can. The second letter contained
remarks about Beaver‘s regrets that he had not ―crushed‖ Alphonce Little for being
144
a government cooperator. The government admitted portions of both letters at
trial.
During a suppression hearing, the details of the search were fleshed out.
Beaver‘s first letter to Freddie Lee Bailey had been given to a prison official,
Investigator Alphonso Ashmeade. On December 23, 2008, Ashmeade talked to
Detective Jeffrey Mayberry, one of the detectives working with the prosecution on
this case, about the letter and other threats that had been made by Cooper and
Beaver against Bailey. When the prosecution team arrived to meet Bailey the
following day, Ashmeade showed Mayberry and others the first letter written by
Beaver. Ashmeade told Mayberry that he would search Beaver‘s cell for security
reasons pursuant to his authority as a prison official. Mayberry requested that if a
prison cell search was to be conducted that any items taken by prison officials from
Beaver or Cooper‘s cell be held pending application for a warrant. According to
Mayberry, on the afternoon of December 24, 2008, Ashmeade informed him that
he conducted a search and took various items from Beaver‘s cell. Mayberry
reiterated that Ashmeade should hold on to the items pending a warrant. Several
days later, detectives working with the prosecution team obtained a search warrant
and ultimately came into possession of the letter that was in Beaver‘s trash can.
145
Beaver argued before the trial court, and does so again on appeal, that the
search by prison officials resulting in the seizure of the second letter about
―crushing‖ Alphonce Little was in violation of his Fourth Amendment rights. As a
factual matter, he contends that the warrantless search occurred not on December
23rd, but on December 24th, and at the direction of the prosecution. For support,
Beaver points to inconsistencies between the suppression hearing testimonies of
Investigator Ashmeade and Detective Mayberry. The primary inconsistency
involved the date of the search. Ashmeade testified that he conducted the
―security‖ search on the 23rd. This timeline did not match up with the testimony
of Mayberry, who believed that the search occurred on December 24th, after the
first letter was brought to the attention of the prosecution. Beaver also makes
much of the fact that Ashmeade stated that he conducted the search for safety
purposes, but made no effort to remove Freddie Lee Bailey from his cell block
where he was on the same floor as Beaver and Cooper. Based on these facts,
Beaver extrapolates that Ashmeade conducted a warrantless evidentiary search
after meeting with the prosecution team on December 24th and at its direction.
146
However, both Detective Mayberry and Investigator Ashmeade testified that
the search was conducted by prison officials without any prompting by prosecution
representatives. The trial court found that regardless of the date of the search, and
any other inconsistencies in the testimony, there was no affirmative evidence to the
contrary. Moreover, the court found that prison officials had a basis to search the
cell because they had reason to believe that there was a danger to government
witnesses then housed in the jail.
―Our review of a trial court‘s denial of a motion to suppress is limited.‖
Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007). ―Our standard of
review for a trial court‘s ruling on a motion to suppress tangible evidence requires
that the facts and all reasonable inferences therefrom must be viewed in favor of
sustaining the trial court‘s ruling.‖ (Robert) Howard v. United States, 929 A.2d
839, 844 (D.C. 2006) (alteration omitted). ―Essentially, our role is to ensure that
the trial court had a substantial basis for concluding that no constitutional violation
occurred.‖ Kaliku v. United States, 994 A.2d 765, 780 (D.C. 2010) (internal
quotation marks omitted).
In Hudson v. Palmer, 468 U.S. 517, 525-26 (1984), the Supreme Court held
that prisoners were not protected by the Fourth Amendment against unreasonable
147
searches of their prison cells. The Court concluded that ―[t]he recognition of
privacy rights for prisoners in their individual cells simply cannot be reconciled
with the concept of incarceration and the needs and objectives of penal
institutions.‖ Id. at 526. Further, the Court determined that ―society would insist
that the prisoner‘s expectation of privacy always yield to what must be considered
the paramount interest in institutional security.‖ Id. at 528. However, in United
States v. Cohen, 796 F.2d 20 (2d Cir. 1986), while acknowledging the holding in
Hudson, the Second Circuit held that in the narrow instance where a prison cell
search was initiated by the prosecution solely to obtain evidence, a pretrial detainee
retained a limited Fourth Amendment right to privacy within his cell ―sufficient to
challenge the investigatory search ordered by the prosecutor.‖ Id. at 24.
We need not decide whether to adopt Cohen‘s reasoning because we hold
that the trial court did not abuse its discretion in making the factual finding that the
search of Beaver‘s jail cell was not conducted at the direction of the prosecution,
and therefore, was necessarily not a search for purposes of the Fourth Amendment.
See United States v. Hogan, 539 F.3d 916, 923-24 (8th Cir. 2008) (―Even if this
court were to adopt [Cohen], it does not apply here, as the search of [the
148
defendant‘s] cell was instigated by jail officials for security reasons and was not
intended solely to bolster the prosecution‘s case.‖).
As the trial court correctly noted, regardless of whether the search occurred
on December 23rd or 24th, the dispositive fact is that both Detective Mayberry and
Investigator Ashmeade consistently testified that the search was conducted by
prison officials, without any input or prompt from the prosecution team.
Ashmeade also explicitly stated that the search was conducted in response to
legitimate concerns regarding Freddie Lee Bailey‘s safety.
On appeal, Beaver merely speculates that the inconsistencies between
Detective Mayberry and Investigator Ashmeade‘s testimony, and the prison‘s
failure to move Bailey from his cell, proved that the search was conducted at the
prosecution‘s behest and that Ashmeade sought to cover up his complicity in the
scheme after the fact. We will not overturn the trial court‘s findings based on such
conjecture. The trial court was free to credit portions of either witness‘s testimony
while discounting any inconsistencies. See Bragdon v. United States, 668 A.2d
403, 406 (D.C. 1995) (per curiam); see also Bose Corp. v. Consumers Union, 466
U.S. 485, 512 (1984) (―When the testimony of a witness is not believed, the trier of
149
fact may simply disregard it. Normally the discredited testimony is not considered
a sufficient basis for drawing a contrary conclusion.‖). Accordingly, Beaver has
no Fourth Amendment grounds upon which to challenge the prison search of his
cell that led to the discovery of the second letter. Thus, the trial court did not err in
denying his motion to suppress.
2. Evidence of Uncharged Misconduct, Incarceration, and Fear
Testimony
a. Testimony of Andre McDuffie
Cooper, Tann, Rushing, Harris, and Arnette make claims related to the
admission of ―other crimes‖ evidence by the government. Prior to trial, the
government informed the trial court of its intent to put on evidence of criminal
activity outside the time frame of the charged conspiracy in order to show the
background to the conspiracy and the associational relationship among appellants
and their coconspirators. The trial court, after reviewing cases from other
jurisdictions, particularly United States v. Mathis, 216 F.3d 18 (D.C. Cir. 2000)
and United States v. Lokey, 945 F.2d 825 (5th Cir. 1991), ruled that it would permit
the government to elicit this type of evidence. Based on the government‘s
representations, the court found that there was a relevant purpose to demonstrating
150
the joint criminal activities of appellants and others, with minimal risk of
prejudice.
The government‘s vehicle for this type of evidence was several ―insider‖
witnesses, who we have mentioned throughout this opinion, with long-standing ties
to the 22nd Street Crew. Andre McDuffie was one of these witnesses and the first
witness called by the government in this case. During his testimony, the
government asked him whether he knew Rushing. McDuffie said that he did and
that he was responsible for Rushing‘s training in the 1990s when Rushing was a
new gang member. Then, McDuffie testified that he taught Rushing a number of
gang-related skills, including ―how to kill.‖
Several appellants objected to this ―how to kill‖ testimony at a break in
Andre McDuffie‘s examination and eventually moved for a mistrial. Appellants‘
chief objection was that the inference to be drawn from this testimony was that in
order to ―get in‖ to the 22nd Street Crew, a gang member had to kill or otherwise
commit serious acts of violence. Therefore, all appellants, who had been labeled
by the government as 22nd Street Crew members, must have committed killings
unrelated to the charged murders. The trial court denied appellants‘ motions for
151
mistrial. However, it agreed that the testimony was unfairly prejudicial and
ordered the testimony stricken. The judge then gave the following curative
instruction:
Mr. McDuffie testified that with regard to Mr. Rushing,
he said he saw him every day, and then he said he sold
drugs every day. This was long before this conspiracy
ever began. And he also said at another point that he
taught Mr. Rushing how to kill, how to survive. Now,
I‘m striking that testimony. When I strike testimony, that
means you are told to disregard it. You can‘t consider it,
you can‘t think about it as you deliberate in this case.
And particularly with regard to the testimony about
allegedly teaching Mr. Rushing to kill, both the
government and the defense agree that they know of no
evidence and they have never been aware of any
evidence that this witness ever taught Mr. Rushing how
to kill. So, it is extremely important that you strike it.
There is no known basis for this testimony, and
consequently you are not to consider it in any way, and
you are not to discuss it when it comes time to deliberate
in this case.
Appellants now appeal the denial of their motions for mistrial.
―We review the decision to deny a mistrial motion for abuse of discretion.‖
(Ronald) Wynn v. United States, 80 A.3d 211, 219 (D.C. 2013). ―This court will
not overturn the trial court‘s decision [to deny a mistrial motion] unless it appears
unreasonable, irrational, or unfair, or unless the situation is so extreme that the
152
failure to reverse would result in a miscarriage of justice.‖ Lee v. United States,
562 A.2d 1202, 1204 (D.C. 1989) (citation omitted).
―In a conspiracy prosecution, the government is usually allowed
considerable leeway in offering evidence of other offenses ‗to inform the jury of
the background of the conspiracy charged, to complete the story of the crimes
charged, and to help explain to the jury how the illegal relationship between the
participants in the crime developed.‘‖ Mathis, 216 F.3d at 26 (quoting United
States v. (Zolton) Williams, 205 F.3d 23, 33-34 (2d Cir. 2000)). Moreover, ―wide
latitude is allowed in presenting evidence, and it is within the discretion of the trial
court to admit evidence which even remotely tends to establish the conspiracy
charged.‖ Castillo-Campos, 987 A.2d at 493.
Even if the evidence of other crimes is admissible for purposes of
establishing the conspiracy, ―the next question is whether [its] probative value is
substantially outweighed by undue prejudice.‖ Lokey, 945 F.2d at 835; United
States v. Morton, 50 A.3d 476, 482 (D.C. 2012) (―[E]ven if evidence falls outside
153
Drew[64] or within a Drew exception and thus is otherwise admissible, it must be
excluded if the trial court determines that its probative value is substantially
outweighed by the danger of unfair prejudice.‖) (internal quotation marks and
alteration omitted). The trial court, while apparently finding that Andre McDuffie‘s
testimony may have been relevant to the legitimate prosecutorial goal of
establishing the associational relationship between the members of the conspiracy,
found that the probative value of the ―how to kill‖ testimony was substantially
outweighed by the danger of unfair prejudice.65 ―[W]e owe a great deal of
deference‖ to the trial court on such a finding. Jenkins, 80 A.3d at 999.
64
Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964) (holding that
evidence of other crimes is inadmissible to prove a defendant‘s disposition to
commit the crime charged but may be admissible for other legitimate non-
disposition purposes).
65
We note that the prejudice to appellants seems to have been fairly
significantly lessened by the context of Andre McDuffie‘s testimony. First,
McDuffie testified that he ―taught‖ Rushing to kill – not that he participated in
joint killings with Rushing or was aware of any evidence that Rushing practiced
this part of McDuffie‘s teachings. Second, the strongest inference to be drawn
from McDuffie‘s testimony was that when the ―little locs‖ were taught the skills of
gang membership, it was the older members only that performed acts of violence.
According to McDuffie, the ―little locs‖ appear to have learned by observation: ―If
we had to go make a move on somebody, so far as [to] inflict the act of violence,
we would take [the little locs] with us and let them see how we do it.‖
154
We owe equally great deference to the trial court when reviewing its
selection of a remedial measure responsive to such problematic testimony. See
United States v. McLendon, 378 F.3d 1109, 1113 (D.C. Cir. 2004) (―[W]e should
not lose sight of the fact that the same judge who initially weighed the [Fed. R.
Evid. 403] balance against admission of the evidence, subsequently determined
that the [evidence] did not warrant a mistrial.‖). ―A mistrial is a severe remedy – a
step to be avoided whenever possible, and one to be taken only in circumstances
manifesting a necessity therefor.‖ Najafi v. United States, 886 A.2d 103, 107
(D.C. 2005); see also (Richard) Clark v. United States, 639 A.2d 76, 78 (D.C.
1993) (―Assuming, for the sake of argument, that [the evidence] constituted ‗other
crimes‘ evidence, we conclude that [it] did not result in prejudice so great as to
render the trial court‘s refusal to grant a mistrial an abuse of discretion.‖).
Here, the offending testimony was a very brief reference at the outset of an
extremely lengthy trial. Cf. Veney v. United States, 936 A.2d 811, 828-29 (D.C.
2007) (other crimes evidence harmless, in part, because objectionable testimony
heard on the first day of a three-day trial). The reference was not repeated by the
government, or its witnesses, and not argued in closing. And the trial court gave a
very strong, and almost immediate, curative instruction stating that there was ―no
155
evidence‖ that Andre McDuffie had taught Rushing to kill. See McLendon, 378
F.3d at 1114 (no abuse of discretion in denying a motion for mistrial based on
exposure of jury to evidence determined to violate Fed. R. Evid. 403 because of
―the brevity of the offending testimony and the clarity of the district court‘s
[curative] instructions‖). Therefore, we find that the trial court did not abuse its
discretion in denying the motions for mistrial.
b. Testimony of Darryl Travers
Rushing makes a separate ―other crimes‖ argument based on the testimony
of another government witness, Darryl Travers. During direct-examination,
Travers made reference to statements that Rushing had made to him about being
housed in the same section of the jail as 22nd Street Crew member Stephen Gray.
On cross-examination, various defendants brought out the fact that Travers himself
had been released from prison in order to assist the government with its
investigation. In response to this bias cross-examination, on re-direct, the
government elicited from Travers that if he remained in prison he would have had
safety concerns as a government cooperator. Appellants objected and moved for a
mistrial on the grounds that the inference was that if Travers remained in jail, he
would be harmed by one of the appellants. The trial court declined to order a
156
mistrial, but it sustained the objection and instructed the jury that there was no
evidence that Travers would have any safety concerns had he remained in jail.
We find no abuse of discretion based on the trial judge‘s treatment of Darryl
Travers‘ testimony. As to Travers‘ reference to the fact of Rushing‘s
incarceration, there was minimal prejudice to Rushing because many of his jail
calls were played for the jury, at which time the jurors inevitably became aware
that Rushing was incarcerated during the period leading up to the trial. Moreover,
neither Travers‘ testimony, nor any other evidence, linked Rushing‘s incarceration
with any of the offenses of which he was charged in this case, particularly the
murder of Laquanda Johnson and assault of Keisha Frost, which was the central
event in the government‘s case against Rushing. (David) Washington v. United
States, 760 A.2d 187, 196 (D.C. 2000) (prejudicial effect limited where ―there was
no evidence as to what crime may have resulted in appellant‘s supposed
incarceration‖ as opposed to ―the situation where the crime charged and the prior
arrest involve the same offense‖) (internal quotation marks omitted). And the
testimony about Travers‘ fear of remaining in prison, even if improper, did not
require the trial court to grant the motion for a mistrial. The testimony was a brief
reference in a very lengthy trial and was fully mitigated by the trial court‘s curative
157
instruction. Consequently, we grant Rushing no relief on the basis of these claims.
See Chase v. United States, 656 A.2d 1151, 1155 n.8 (D.C. 1995) (no abuse of
discretion by trial court in denying motion for mistrial where government
attempted to elicit ―fear‖ testimony because denial of motion was not
―unreasonable, irrational or unfair‖).
3. Evidentiary Rulings During Cooper’s Case-in-Chief
Cooper argues that the trial court‘s various erroneous evidentiary rulings
collectively deprived him of the right to present a complete defense. See Heath v.
United States, 26 A.3d 266, 280-81 (D.C. 2011) (―[W]hether an erroneous
exclusion of defense evidence violates the defendant‘s constitutional right to
present a defense depends upon whether there exists a reasonable probability that
the omitted evidence . . . would have led the jury to entertain a reasonable doubt
that did not otherwise exist.‖) (emphasis omitted). After examining his claims, we
reject his argument.
a. Statements by Tamika Bradshaw
Cooper argues that the trial court erred when it prevented him, during his
testimony, from repeating a statement made to him by a woman named Tamika
Bradshaw. Cooper denied murdering Terrence Jones and testified that he first
learned about the Terrence Jones shooting from ―[t]his girl name[d] Tamika.‖
158
Cooper‘s defense counsel then asked Cooper what Bradshaw had said to him.
The government objected to the admissibility of Bradshaw‘s exact statement
(although it did not specify the grounds). The trial court called the parties to the
bench, and Cooper‘s defense counsel stated that Bradshaw‘s statement was not
hearsay because it was offered to show Cooper‘s state of mind and relevant
because ―it‘s how [Cooper] found out about the shooting.‖ Without explanation,
the trial court sustained the objection. Cooper‘s defense counsel then asked
Cooper where he was when he ―became aware that there had been a shooting.‖
Cooper replied that he was ―[in] the parking lot . . . [a]cross from the basketball
court‖ on 22nd Street.
Assuming that the trial court should have allowed Cooper to testify as to
Bradshaw‘s statement under the state-of-mind exception to the rule against
hearsay, her precise statement was of very minimal importance, and there was no
harm because Cooper was able to present the substance of what Bradshaw
conveyed to him. See United States v. Terry, 702 F.2d 299, 314 (2d Cir. 1983)
(error in suppressing evidence harmless where its essence was nonetheless
conveyed to the jury by defense counsel).
159
b. Statements by Laquanda Johnson
Cooper also claims that the court erred in not admitting statements for the
truth of the matter allegedly made by Laquanda Johnson to him in the course of a
conversation between Cooper and Laquanda following the Terrence Jones
shooting. The statements were, in effect, that she knew that Cooper was not
involved in the shooting because she had seen him in a parking lot on 22nd Street
at the time.
Cooper argued to the trial court that because the government had elicited
certain statements by Laquanda Johnson to his disadvantage under a forfeiture-by-
wrongdoing theory, Laquanda‘s statements favorable to him should also be
admitted. The government registered a hearsay objection. The trial court agreed
with the government that the forfeiture-by-wrongdoing exception to the hearsay
rule was not designed to advantage the wrongdoer; therefore, the statements were
not admissible for their truth and the court instructed the jury that they were
admissible for state-of-mind purposes only. The court again limited the
admissibility of Laquanda‘s statements to their effect on Cooper‘s state of mind
when Cooper sought to repeat her statements in the context of explaining that
160
another individual, Patrick Williams, overheard the same conversation between
Laquanda and Cooper after the Terrence Jones murder.
The trial court did not err in its treatment of this testimony. In Sweet v.
United States, 756 A.2d 366, 379 (D.C. 2000), we held that ―it is only the party
who wrongfully procures a witness‘ absence who waives the right to object to the
adverse party‘s introduction of the witness‘ prior out-of-court statements.‖ Id.
(alterations omitted) (quoting United States v. Houlihan, 92 F.3d 1271, 1283 (1st
Cir. 1996)). We also explicitly stated that the forfeiture-by-wrongdoing rule
―which provides for the waiver of objection by the party who causes the witness
absence cannot logically strip the government of its hearsay objections.‖ Sweet,
756 A.2d at 379 (internal quotation marks omitted).
c. Statements by Cooper to Brandon Elzie
Finally, Cooper claims that the court erred by excluding his statement to a
prison guard, Brandon Elzie. Cooper attempted to elicit from Elzie the fact that he
had told Elzie that he could not be in the same part of the jail as Freddie Lee Bailey
because Bailey was a cooperating witness, and therefore Elzie should escort him to
another part of the jail. This testimony was offered by Cooper to show that
161
Bailey‘s testimony, which was that Cooper made inculpatory statements to him
while they were together in a holding cell, was untrue.
The government raised a hearsay objection, arguing that Cooper‘s ―self-
serving‖ statement was being offered for the truth of fact that Cooper was not
permitted to be in the presence of a government witness. Attempting to negotiate
an acceptable middle ground, the trial court asked Cooper‘s defense counsel if he
would be amenable to asking Elzie if Cooper informed him of ―something‖ that
caused Elzie to take Cooper away from Bailey. Although Cooper‘s defense
counsel stated that he ―just [didn‘t] think any of it[] [is] hearsay,‖ he agreed to ask
the question in the way proposed by the trial court.
Cooper‘s defense counsel then asked Elzie what he did ―based upon the
information that Mr. Cooper gave you.‖ Elzie replied, ―In turn, I then escorted Mr.
Cooper back upstairs.‖ Assuming arguendo that the trial court should have
admitted the contents of Cooper‘s statements to Elzie to show Cooper‘s state of
mind, any error was harmless. The trial judge‘s handling of Elzie‘s testimony
allowed Cooper to rebut the substance of Bailey‘s statements, which was Cooper‘s
purpose in calling Elzie to the stand. Terry, 702 F.2d at 314.
162
In sum, even assuming error in two of these evidentiary rulings, there was no
violation of Cooper‘s constitutional right to present a complete defense. Any
prejudice to Cooper was very minimal because he was permitted to elicit evidence
that put the defense theories before the jury. See (Maurice) Morris v. United
States, 622 A.2d 1116, 1128-29 (D.C. 1993) (―even if the judge erred, the defense
suffered little, if any prejudice‖ because appellant‘s case was ―clearly before the
jury‖ and the excluded testimony ―would not have bolstered appellant‘s case‖).
Therefore, we reject Cooper‘s claim based on these evidentiary rulings.
4. Admission of Tann’s Videotaped Statement
During the prosecution‘s rebuttal case, the government played a portion of
Tann‘s videotaped statement to the police on matters relevant to the Leslie Jones
murder. In the videotaped statement, Tann made references to visiting Darryl
Travers on the evening of the murder, which conflicted with the testimony of
several of Tann‘s alibi witnesses who had testified that Tann was with them that
evening.
The tape did not make reference to any appellant other than Tann. Nor was
any appellant other than Tann charged with the Leslie Jones murder (although his
murder was listed as an overt act on the conspiracy charge). Cooper, the only
163
appellant convicted under a vicarious liability theory – for the Laquanda Johnson
murder only – now raises a claim pursuant to Akins v. United States, 679 A.2d
1017 (D.C. 1996) based on the admission of the videotape.
―[I]n a joint conspiracy trial where the government relies on a theory of
vicarious liability, statements may not be introduced under the statements of [a]
party opponent exception to the rule against hearsay . . . unless they are admissible
as coconspirators‘ statements in furtherance of the conspiracy . . . .‖ Id. at 1031.
However, Cooper was not prosecuted under a vicarious liability theory for the
conspiracy count of which the murder of Leslie Jones was an overt act. Instead,
Cooper was tried as a principal in the conspiracy. Because Tann‘s statement
impacted Cooper on the overt act of the conspiracy charge only, a charge for which
he was not prosecuted under a theory of vicarious liability, Akins is inapplicable
and Cooper‘s claim is meritless.
B. Instructional Issues
1. Obstruction of Justice Instruction
Appellants Beaver, Cooper, and Tann were charged with obstruction of
justice under D.C. Code § 22-722 (a)(2)(A) and (a)(6). Appellants challenge the
164
trial court‘s obstruction of justice jury instruction and allege that it amounted to a
constructive amendment of the indictment.
The relevant counts, as listed in the indictment, were as follows:
Between on or about April 17, 2004, and on or about
April 30, 2004 . . . Cooper . . . corruptly persuaded, and
endeavored to cause or induce, Laquanda Johnson, the
sister of a witness in an official proceeding, to wit, the
investigation into the April 17, 2004 murder of Terrence
Jones and assault of Richard Queen . . . with the intent to
influence, delay and prevent the truthful testimony of
Kyara Johnson in that proceeding . . . in violation of
[D.C. Code § 22-722 (a)(2)(A) and (a)(6) (2012 Repl.)].
Between on or about April 30, 2004, and on or about July
11, 2006 . . . Cooper . . . Tann . . . Beaver . . . Gilliam . . .
and other persons . . . corruptly persuaded, and
endeavored to cause or induce, Laquanda Johnson, with
the intent to persuade her to influence, delay, and prevent
the truthful testimony of her sister, Kyara Johnson, a
witness in an official proceeding, to wit, United States v.
Lannell Cooper . . . in violation of [D.C. Code § 22-722
(a)(2)(A) and (a)(6) (2012 Repl.)].[66]
Between on or about June 1, 2006, and on or about July
11, 2006 . . . Tann . . . corruptly persuaded and by
threatening letter and communication, endeavored to
influence, intimidate and impede Donnise Harris, a
witness in an official proceeding, to wit, the case of
United States v. Saquawn Harris . . . with the intent to
66
See Section VII (D) supra. Count 25 has been included here again for
clarity.
165
influence, delay, and prevent the truthful testimony of
Donnise Harris in that proceeding . . . in violation of
[D.C. Code § 22-722 (a)(2)(A) and (a)(6) (2012 Repl.)].
Prior to final jury instructions, the government requested that the trial court
use the pattern jury instruction for the ―catch-all‖ version of obstruction of justice
under D.C. Code § 22-722 (a)(6) for Counts 24 and 25 involving the Johnson
sisters. Criminal Jury Instructions for the District of Columbia, No. 6.101F (5th
ed. rev. 2013). Appellants did not object, and the court agreed to do so. When the
instructions on the elements of Count 24 were given, the court instructed the jury,
in relevant part, as follows:
[T]he essential elements of obstructing justice under this
count . . . are, first, that the defendant corruptly, or by
means of force, obstructed or impeded or endeavored to
obstruct or impede the due administration of justice and
any official proceeding in the Superior Court of the
District of Columbia. [Emphasis added]
The trial court instructed the jury in accordance with the D.C. Code § 22-722
(a)(6) pattern instruction, except that the court inadvertently changed the phrase
―threats of force‖ to ―means of force‖ when describing one potential manner in
which appellants could have obstructed justice. The trial court did so for each
obstruction of justice count, including Tann‘s Count 41 which described Donnise
Harris as the victim. These instructions went without objection. The court also
166
issued written instructions to the jury; however, the written instructions did not
contain the ―means of force‖ language. Instead, the written instructions used the
phrase ―threats of force‖ as authorized by the pattern jury instruction for § 22-722
(a)(6).
After the verdicts, but prior to sentencing, Cooper filed a motion for a new
trial alleging that the flawed instruction amounted to a constructive amendment of
the indictment. Cooper‘s argument was that by instructing the jury that it could
convict if it found that obstruction of justice had been committed by a ―means of
force,‖ the court permitted the jury to consider a theory of liability on which
appellants were not indicted. Further, Cooper and other appellants pointed to
evidence at trial that went toward a ―force‖ theory of obstruction of justice, as
opposed to the ―persuasion‖ theory of obstruction of justice that was explicitly
charged in the language of the indictment, thereby enhancing the likelihood of
prejudice as a result of the instruction. After a post-trial hearing, the trial court
denied appellants‘ motions.
Our first task is to determine the correct standard of review of this issue on
appeal. ―[P]lain error review applies to a claim that an indictment has been
167
constructively amended if an objection has not been made at trial level.‖
(Alexander) Smith v. United States, 801 A.2d 958, 962 (D.C. 2002). Despite this
principle, appellants allege that their claims should not be subject to plain error
review because (1) they were ―essentially preserved in the trial court . . . by
appellants‘ post-verdict motions for a new trial‖; (2) the government invited the
error; (3) appellants ―reasonably relied on the judge‘s [written] jury instructions
which did not include [the means of force] phrase‖; and (4) ―there is a strong
likelihood that appellants did not actually hear the precise words uttered by the
judge.‖
Appellants‘ arguments about the standard of review are unpersuasive. Their
argument that the claim was ―essentially preserved‖ by way of the post-conviction
motions for a new trial must fail because such post-trial motions do not amount to
a ―timely objection,‖ and thus, will not save an appellant from plain error review.
See (Tristan) Smith v. United States, 847 A.2d 1159, 1160 (D.C. 2004) (per
curiam) (superseded by statute on other grounds); United States v. (Chevalier)
Thompson, 27 F.3d 671, 673 (D.C. Cir. 1994) (―[A] post-verdict motion for a new
trial is not the same as a timely objection: the delay eliminates any chance that the
judge could correct the error without a duplicative trial, and according review as if
168
a timely objection had been raised virtually invites strategic behavior by defense
counsel.‖). Furthermore, there is no authority for appellants‘ remaining arguments.
The ―point of the plain-error rule‖ is to oblige the defendant to advise the judge
when a mistake occurs; therefore, the rule ―requires defense counsel to be on his
toes, not just the judge . . . .‖ United States v. Vonn, 535 U.S. 55, 73 (2002); see
also Davis v. United States, 984 A.2d 1255, 1259 (D.C. 2009). Consequently, we
review for a constructive amendment using the plain error standard.
The Fifth Amendment prohibits any person from being ―held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury . . . .‖ U.S. CONST amend. V. ―[W]here a trial court broadens the
possible grounds for conviction by adding another factual basis to those contained
within the indictment, the court constructively – and impermissibly – amends the
indictment.‖ Wooley v. United States, 697 A.2d 777, 781 (D.C. 1997). Only a
grand jury may ―broaden‖ the charges in an indictment. Stirone v. United States,
361 U.S. 212, 215-16 (1960).
Here, there were essentially two possible constructive amendments that
could have occurred: (1) by the addition of the phrase ―threats of force‖ in the
169
written instructions and (2) by the addition of the phrase ―means of force‖ in the
oral instructions. Neither phrase was included in the language of the indictment.
However, addressing each issue in turn, we find that appellants are owed no relief
based on the inclusion of either phrase in the jury instructions under the plain error
standard.
A claim of plain error based on the addition of the phrase ―threats of force‖
is foreclosed by our case law that holds an appellant cannot satisfy the fourth prong
of plain error when the indictment at issue includes a citation to a criminal statute
from which a trial court recites when instructing a jury, even if the language of the
indictment does not otherwise track the wording of the cited offense. Bolanos v.
United States, 938 A.2d 672, 687 (D.C. 2007); (Alexander) Smith, 801 A.2d at
961-62. In Bolanos, one of several defendants was charged with aggravated
assault while armed (―AAWA‖) by an indictment that alleged the offense was
committed by ―knowingly or purposely caus[ing] serious bodily injury‖ to the
victim. 938 A.2d at 686. However, the Bolanos jury instructions included an
alternative mens rea, proper under another subsection of the AAWA statute but not
explicitly alleged in the indictment, ―that is, the defendant manifested extreme
indifference to human life by knowingly engaging in conduct which created a
170
grave risk of serious bodily injury.‖ Id. In rejecting appellant‘s claim of plain
error based on a constructive amendment, we held:
While the indictment failed to state both subsections of
the aggravated assault statute, it did include a citation
that encompassed both subsections; thus, [appellant] had
notice he would be required to defend against both
prongs. We find that [appellant] has failed to show that a
miscarriage of justice occurred, in light of the notice he
received through the citation to the aggravated assault
statute included in the indictment.[67]
Here, while the phrase ―threats of force‖ found in the written jury
instructions was not used in the indictment, the indictment did cite to D.C. Code
§ 22-722 (a)(6), which includes this phrase in describing the offense of obstruction
of justice. Therefore, under our precedent, appellants cannot prevail on the basis
of the inclusion of the phrase ―threats of force‖ in the written instructions.
67
Id. at 687. We came to the same conclusion in (Alexander) Smith where
the trial court‘s jury instruction added a second means of committing aggravated
assault that was not explicitly charged in the language of the indictment. There,
we held ―even if we assume that the evidence and instruction plainly amended the
language of the indictment, there is no risk that the fairness, integrity or public
reputation of judicial proceedings will be affected where the indictment included a
citation that encompassed both subsections of the aggravated assault statute, and
the evidence amply supported appellant‘s conviction of aggravated assault.‖ 801
A.2d at 960-62.
171
Appellants‘ argument based on the ―means of force‖ language mistakenly
read by the trial court during its oral jury instructions also falls short; this time the
claim fails on the third prong of the plain error standard, which requires that
appellants ―demonstrate that the error affected [their] substantial rights by showing
a reasonable probability that it had a prejudicial effect on the outcome of [their]
trial[s].‖ Comford v. United States, 947 A.2d 1181, 1189 (D.C. 2008). First, the
written instructions did not include the language ―means of force.‖ See generally
People v. Wilson, 187 P.3d 1041, 1069-70 (Cal. 2008) (―To the extent a
discrepancy exists between the written and oral version of jury instructions, the
written instructions provided to the jury will control.‖). Although the trial court
did not instruct the jury that the written instructions controlled in the event of a
conflict with its oral instructions, it is doubtful in this case that the phrase ―means
of force‖ had a meaningful influence upon the jury‘s verdict. The trial court‘s
words were uttered near the end of month seven of a nine-month trial and during
an instructional period that lasted the better part of two court sessions and involved
forty-nine counts relating to six defendants. A much more reasonable scenario is
that the jurors relied upon the written instructions, which used the ―threats of
force‖ language, during their extensive deliberations.
172
Second, the government did not argue for appellant‘s guilt based on a
68
―means of force‖ theory of liability. See Portillo v. United States, 62 A.3d 1243,
1260 (D.C. 2013) (no plain error where, in a burglary case, the government argued
an entry-with-intent-to-steal theory of liability as charged, as opposed to the
additional entry-with-intent-to-assault theory added by trial court in jury
instructions). Finally, appellants have not identified ―any deficiency in the defense
strategy at trial due to the discrepancy between the indictment and the jury
instructions relating to the [obstruction of justice] charge[s].‖ Id. Therefore,
appellants fail to meet their burden on the third prong of plain error review and we
reject their claims.69
68
When referring to the evidence on Counts 24, 25, and 41, the government
recounted testimony that Tann asked Donnise Harris to testify favorably for
appellant Harris; that Cooper approached Laquanda Johnson and offered her a
bribe of drugs and money to influence Kyara Johnson‘s testimony; and that Dewey
Chappell was working with Beaver, Tann, and Brian Gilliam to find the sisters to
―change their testimony.‖ While the government‘s argument described how some
of this testimony explained efforts by the coconspirators involved the threats of
force and contemplated the use or means of force the government‘s argument did
not contend that any of acts underlying these obstruction of justice counts were
executed by such a means or use of force.
69
We also note that Counts 24, 25, and 41 cited to D.C. Code § 22-722
(a)(2)(A), which makes unlawful the knowing use of ―physical force‖ to
―influence, delay, or prevent the truthful testimony of [a] person in an official
proceeding . . . .‖ This means that even if appellants‘ ―means of force‖ claims
survived the third prong of plain error review, our decisions in Bolanos and
(continued…)
173
2. Lesser-Included Offense Instruction: Relationship Between
Felony and Second-Degree Murder
Appellants Tann and Arnette were charged with one count of first-degree
premeditated murder while armed and two counts of first-degree felony murder
related to the death of Terrence Jones. The two underlying felonies alleged were
the attempted robbery of Terrence Jones and the completed robbery of Richard
Queen. At the MJOA stage, the government agreed that there was insufficient
evidence on the first-degree premeditation element of the premeditated murder
count for both appellants. The court ruled that the count would be reduced to the
lesser-included offense of second-degree murder while armed of Terrence Jones.
Therefore, for the Terrence Jones murder, the jury was charged with rendering
verdicts on (1) one second-degree murder count for both appellants and (2) two
first-degree felony murder charges for each.
During final jury instructions, the trial court instructed the jury that it could
find both appellants guilty of the lesser-included offense of second-degree murder
(…continued)
(Alexander) Smith would require us to deny them relief because they could not
―show that a miscarriage of justice occurred, in light of the notice [they] received
through the citation to [the obstruction of justice] statute included in the
indictment,‖ which put them on ―notice that [they] would be required to defend
against‖ a use-of-physical-force theory. Bolanos, 938 A.2d at 687.
174
while armed, even if it found reasonable doubt as to the first-degree felony murder
charges. Ultimately, the jury found Tann and Arnette each guilty of three counts
of second-degree murder while armed: the second-degree murder charge that had
been reduced from first-degree premeditated murder and two counts of second-
degree murder as lesser-included offenses of the first-degree felony murder
charges.
Appellants now argue that the jury was improperly instructed. They contend
that second-degree murder is not a lesser-included offense of first-degree felony
murder under the ―elements‖ test in Blockburger v. United States, 284 U.S. 299
(1932) and Byrd v. United States, 598 A.2d 386 (D.C. 1991). Their claim is that
second-degree murder requires the element of ―malice aforethought‖ – an element
not contained in the offense of first-degree felony murder. However, appellants‘
argument is foreclosed by our decisions that hold second-degree murder is, in fact,
a lesser-included offense of first-degree felony murder. See Towles v. United
States, 521 A.2d 651, 656-58 (D.C. 1987) (en banc). Therefore, their claims
afford them no basis for relief.
175
3. Attitude and Conduct Instruction
During final instructions, the court issued the jury an ―attitude and conduct‖
instruction. No appellant objected. Tann, Arnette, and Harris now argue that this
instruction was fundamentally similar to the instruction deemed flawed in Jones v.
United States, 946 A.2d 970 (D.C. 2008), for unduly favoring a collective result
over the individual opinions of the jurors. We find no plain error in the instruction.
Appellants are correct that the instruction contained an element found
problematic in Jones: a statement that the ―final test‖ of the jurors‘ service turned
on their verdicts, not their earlier opinions. However, the instruction did not
contain the ―purposive‖ language that we have identified as underlying the Jones
holding. See Lampkins v. United States, 973 A.2d 171, 173 (D.C. 2009) (flaw in
Jones was informing the jury that its ―purpose should not be to support your own
opinion, but rather to ascertain and to declare the truth‖); see also Grant v. United
States, 85 A.3d 90, 99-100 (D.C. 2014) (error was in telling the Grant jury that its
purpose was to reach a verdict thereby expressing to the jurors that consensus was
preferred to genuine agreement).
176
Additionally, the instant instruction also (1) included language praised in
McClary v. United States, 3 A.3d 346, 355 (D.C. 2010), explaining the purpose of
jurors not pre-announcing opinions, and (2) contained wording similar to that
approved by Jones, reminding jurors not to surrender their honestly held opinions
and informing them that it was their duty to reach verdicts only if they could
conscientiously do so. 946 A.2d at 974. Accordingly, we cannot say that it should
have been clear or obvious to the trial court that there was error in the instruction.
In any event, appellants cannot meet prong three of the plain error test because the
jury clearly engaged in extensive and discerning deliberations before returning
verdicts. Id. at 976 (lengthy deliberations informed the court‘s determination that
Jones could not show a ―reasonable probability‖ that the erroneous instruction
changed the verdict).
C. Closing and Rebuttal Argument
All appellants argue that the cumulative impact of several allegedly
improper remarks made by the government during its closing and rebuttal
arguments requires reversal. We disagree and decline to grant appellants relief.
1. Government’s Closing Argument
Near the beginning of its closing argument, the government attempted to
explain why culpability for the Laquanda Johnson murder extended beyond
177
Alphonce Little, the 22nd Street Crew member who shot her and Keisha Frost.
The government made several statements to the effect that the government had a
responsibility not to ―turn [its] back[]‖ on the community and ignore the larger
criminal problem on 22nd Street. In the course of this explanation, the government
briefly transitioned from ―we‖ statements to a single ―you‖ statement directed at
the jury when it stated, ―[We are] asking you, at this point, to do what the
community requires.‖70 Several appellants objected and the court sustained their
70
The prosecutor‘s argument was:
This is not a situation that you can just sum up in
three lines. It‘s not, Laquanda Johnson was killed;
Alphonce Little was arrested; Alphonce Little pled
guilty.
There‘s much, much more to what happened on
[the night of Laquanda Johnson‘s murder].
Now, the defendants behind me would very much
like that you stop right there. And it would have been
easy to just call it case closed. . . .
But to do so would have required that we turn a
blind eye to what had been happening there for years.
We would have had to turn our backs on that community.
We would have had to turn our backs on that entire two-
block area. We would have had to ignore the other
victims.
(continued…)
178
objections. After returning from a break in the government‘s argument, the court
instructed the jurors that they did not represent the community and, in essence, that
they were not to follow that line of the government‘s argument
At the very end of its closing argument, the government referenced the
testimony of one of its witnesses, Tyrone Curry. Under cross-examination about
his reasons for cooperation with the government, Curry said that his sister had been
killed six months earlier in the area around 22nd Street and that he had come to the
conclusion that ―[E]nough is enough. How many people got to die before you say
something?‖ The government referred the jury back to Curry‘s testimony as it
concluded its closing argument and then used Curry‘s quote to argue: ―Ladies and
gentlemen, enough is enough. You need to hold these men accountable for what
they‘ve done.‖71
(…continued)
And we’re asking you, at this point, to do what that
community requires. We owed it to that community to
investigate this thoroughly. [Emphasis added].
71
The full argument was as follows:
Like I said, [it] didn‘t start on July 11[;] it didn‘t
end on July 11. The evidence has shown you the men
behind me have caused too much pain and suffering to
(continued…)
179
2. Government’s Rebuttal Argument
During his closing argument, Cooper made the case that what the
government‘s evidence had shown was not a criminal conspiracy defined by
specific time periods and goals, but merely an ongoing participation in a
community attitude that embraced a drug culture and black market. Furthermore,
Cooper argued that the government was biased against him and had allowed
emotion and preconceived notions about the appellants‘ guilt to bias itself in favor
of certain witnesses in the case. In Harris‘s closing, he asserted that some of the
government‘s witnesses were motivated to lie by the prospect of relocation
assistance and money from the government. He further noted that some witnesses
had received thousands of dollars from the government
(…continued)
22nd Street. . . . And it makes me think back to the one
thing Tyrone Curry said. He said it on the stand, and I
want to make sure I get it right because he said it better
than I could have. He was being cross-examined about
why it was that he finally came forward, and he said,
―My sister was killed six months ago, and I came to the
conclusion that enough is enough. How many people
gotta die before you say something?
Ladies and gentlemen, enough is enough. You
need to hold these men accountable for what they’ve
done. [Emphasis added].
180
The government responded in rebuttal that the law of conspiracy was
designed in such a way that showing concrete time periods and single objectives
was not required. The government further remarked that if the law was set up
differently, then prosecuting criminal organizations such as the ―Italian Mafia‖
would be too difficult.72 The trial court overruled immediate objections and ruled
against later motions for a mistrial. However, it instructed the jury that the ―mafia‖
comment was ―unfortunate.‖ The trial court further told the jury that it should not
be thinking about any particular historical group when weighing the evidence in
this case, particularly groups with traditionally negative connotations.
Later in rebuttal argument, the government returned to the explanation of its
charging strategy, telling the jury the purpose behind its expansive prosecution of
the 22nd Street Crew was because it had ―an obligation not to just look at what is
72
With regard to the ―Italian Mafia,‖ the prosecutor stated:
There‘s no requirement [in the law of conspiracy]
that says it has to be a limited period of time. . . . There‘s
no requirement that it has to be just one objective . . . .
There‘s no requirement that it can only be about one
[l]ittle incident. And think about it[;] it makes perfect
sense. If that were the only thing the conspiracy law
could prosecute, it‘d never prosecute gangs[;] it‘d never
prosecute organized crimes. All those Italian Mafia
families, they’d never get prosecuted. [Emphasis added].
181
right before us, but to dig deeper. It‘s just like a weed in the sidewalk, right? You
can pluck off that yellow top, and a Dandelion is coming back.‖73
Finally, when concluding rebuttal, the government responded to the
argument that it was biased against appellants and in favor of certain government
witnesses. Attempting to exploit the use of the term ―bias,‖ the government
explained that it had no ―bias‖ against appellants, but instead was ―biased‖ in favor
of its witnesses because of the immensely difficult and dangerous task of
73
With regard to the reference to pulling out the weeds, the quote was:
We have an obligation to get to the truth. We have
an obligation not to just look at what is right before us,
but to dig deeper. It’s just like a weed in the sidewalk,
right? You can pluck off that yellow top, and a
Dandelion is coming back. We have an obligation to get
to the root of the problem, and we didn‘t do that with
Terrence Jones[;] we didn‘t do that. We went forward[;]
we prosecuted Lannell Cooper alone[;] we didn‘t
prosecute [D]euce-[D]euce as a whole, and it didn‘t
work. We can take out Alphonce Little, but there‘s going
to be somebody else, because Alphonce Little is just the
weapon in the hands. That‘s our obligation[;] it was to
do more than just look at what was right before us[;] it
was our obligation to dig deeper and find the truth, and
we are firmly convinced that when you go in the back
and you dig deeper, you will find the truth and when you
look at all of that evidence in the back you will hold
these men accountable . . . . [Emphasis added].
182
cooperating with the government in a case such as this one.74 When the defense
objected to this line of argument, the trial court stated that it believed that the
rebuttal was a fair response to appellants‘ closings. Nevertheless, out of caution,
the court issued an instruction that the jury was to disregard any reference to the
personal opinions or ―bias‖ expressed by any of the attorneys during closing
arguments.
3. Analysis
The standard governing our review of prosecutorial misconduct in closing or
rebuttal argument is ―well-settled.‖ Finch v. United States, 867 A.2d 222, 225
(D.C. 2005). ―We start by determining whether the challenged comments were, in
fact, improper. If they were, we must determine whether the trial judge erred or
74
With regard to the government‘s ―bias,‖ the prosecutor argued:
We‘re not biased against Mr. Cooper or Mr.
Rushing or Mr. Beaver or Mr. Arnette or Mr. Harris or
Mr. Tann. We are biased in favor of our witnesses,
because we ask these folks to come in here and do the
unthinkable. We ask them to sit on that stand, look at
you, air all of their baggage and point the finger at these
men behind me and call them out for what they did. And
when that happens, they get attacked for it and that‘s the
way it works. . . .
So is it personal? Is there a bias? Maybe there is,
but it’s not against [the defendants]. It’s for those people
who do what is asked. [Emphasis added].
183
abused his discretion in responding to them.‖ Id. ―[A]bsent some improper ruling
or omission by the trial judge, we cannot ordinarily reverse a conviction, and our
ultimate focus must therefore be on what the judge did or failed to do.‖ Irick v.
United States, 565 A.2d 26, 33 (D.C. 1989) (footnote omitted).
Appellants allege two types of improprieties in the government‘s closing and
rebuttal arguments. Their first contention is that the government made several
statements designed to inflame the passions of the jury or urge the jury to send a
message based on policies apart from the consideration of the evidence, including:
the argument to the jury about doing the community‘s bidding, the argument that
―enough is enough,‖ the reference to ―pulling out the weeds,‖ and the analogy to
the Italian Mafia. See McGriff v. United States, 705 A.2d 282, 289 (D.C. 1997);
Powell v. United States, 455 A.2d 405, 410 (D.C. 1982). The other assertion made
by appellants is that the government improperly vouched for the credibility of its
witnesses by openly declaring, during argument, its bias in favor of them. See
Finch, 867 A.2d at 226.
Even assuming appellants‘ contentions are correct that these remarks by the
government were improper, we nevertheless find no grounds for reversal. When
testing for harmlessness in the context of closing and rebuttal arguments, ―this
184
court may [] affirm the convictions [if it is] satisfied that the appellant did not
suffer ‗substantial prejudice‘ from the prosecutor‘s improper comments.‖ Finch,
867 A.2d at 226 (citing Kotteakos v. United States, 328 U.S. 750, 765 (1946));
(Ivery) Gardner v. United States, 898 A.2d 367, 375 (D.C. 2006) (―where, as
occurred here, there were multiple instances of asserted improper comments . . . we
determine whether the cumulative impact of the errors substantially influenced the
jury‘s verdict‖) (internal quotation marks omitted).
Factors to be considered in assessing harmlessness include ―the gravity of
the misconduct, its relationship to the issue of guilt, the effect of any corrective
action by the trial judge, and the strength of the government‘s case.‖ Irick, 565
A.2d at 32. We first note that the government‘s closing and rebuttal arguments
were very lengthy. Moreover, they were part of an extended period of argument
by the parties (nearly two weeks) in a trial that lasted nine months from opening
statements to the final verdict. In comparison, the government‘s alleged missteps
took the form of relatively brief references amid protracted arguments about the
complex and numerous facts of the case. See (Vonn) Washington v. United States,
884 A.2d 1080, 1089 (D.C. 2005); (Maurice) Morris, 622 A.2d at 1126 (―the
185
offending comment was a relatively brief reference during a lengthy closing
argument‖) (internal quotation marks omitted).
Each time that appellants objected, the trial court gave timely and effective
curative instructions. See McGriff, 705 A.2d at 289. We discern no abuse of
discretion. Moreover, because the government‘s potentially improper remarks
tended to follow appellants‘ attacks on the motives and strategies of the
prosecution, many of these arguments were generally collateral and not focused on
the key matters relevant to the question of appellants‘ guilt. See Bates v. United
States, 766 A.2d 500, 510 (D.C. 2000) (remarking on the peripheral nature of the
improper comments by the prosecutor in evaluating harm).
The most clearly improper remark – asking the jury to do what the
community requires – appears to have been inadvertently made; the rest of the
government‘s remarks are more ambiguous as to their impermissibility. See, e.g.,
Irick, 565 A.2d at 35 (―Despite decisions in the dozens, the law governing what a
prosecutor may or may not say about the credibility of a [witness] is not always
easy to discern or apply.‖) Finally, the jury‘s findings appeared to carefully parse
through the evidence against each appellant, ultimately acquitting several
186
appellants of the most serious charges against them. See Brewer v. United States,
559 A.2d 317, 323 (D.C. 1989). Therefore, we can confidently say that appellants
did not suffer substantial prejudice as a result of any improprieties, taken either
individually or collectively, in the government‘s arguments.
D. Discovery
Appellants make three discovery related arguments. Cooper alone brings a
claim related to the government‘s loss of his phone calls from jail. All appellants
bring Brady75 claims involving the government‘s witnesses Dewey Chappell and
Kyara Johnson.
1. Loss of Cooper’s Jail Phone Calls
Cooper argues that the trial court erred in not giving the jury a ―missing
evidence‖ instruction as a discovery sanction for the government‘s loss of a
number of his phone calls from jail. There was extensive evidence of jail phone
calls made by multiple appellants admitted by the parties at trial. In the course of
the investigation into this case, the prosecutors received a number of CDs
containing calls made by Cooper from jail between June 2005 and November
2006. As it was preparing for discovery, the government sent the CDs to its
75
Brady v. Maryland, 373 U.S. 83 (1963).
187
technology unit for copying. In the process, the recordings of certain calls were
lost and enough time had passed that the original recordings were no longer
maintained by the jail. Approximately 90 calls that Cooper made in June 2006
were estimated to have been lost.
During pretrial motions, Cooper brought the issue to the attention of the trial
court and asked the judge to prepare to give the jury a ―missing evidence‖
instruction. Cooper argued, as he does on appeal, that he would have been able to
use the contents of the missing calls for the impeachment of government witnesses,
or alternatively, as nonhearsay verbal acts by him.
After a motions hearing, the trial court found that the loss by the government
was unintentional. The court also found that there was no evidence that any of the
material would have been favorable to Cooper. Therefore, the court denied
Cooper‘s request for a missing evidence instruction. However, the court prohibited
the government from eliciting testimony from any witness about conversations that
would have been on the missing calls. Additionally, parties introduced a
stipulation into evidence stating, in essence, that the June 2006 calls were lost by
the government and efforts to recreate them had failed.
188
Cooper argues that the trial court erred in refusing to give the ―missing
evidence‖ instruction, i.e., that:
If evidence relevant to an issue in this case was only
within the power of one party to produce, was not
produced by that party, and its absence has not been
sufficiently explained, then you may, if you deem it
appropriate, infer that the evidence would have been
unfavorable to the party who failed to produce it.
However, you should not draw such an inference from
evidence that in your judgment was equally available to
both parties or which would have duplicated other
evidence or that you think was unimportant.
Criminal Jury Instructions for the District of Columbia, No. 2.300 (5th ed. rev.
2013).
Superior Court Criminal Rule 16 (a)(1)(A) requires the government to
disclose to the defendant any relevant written or recorded statements made by the
defendant of which it has knowledge, or that it would discover in the exercise of
due diligence, and to make those statements available to the defense for inspection,
copying, or photographing. This court has noted that ―[t]he duty to produce
discoverable evidence entails the antecedent duty to preserve that evidence.‖ Allen
v. United States, 649 A.2d 548, 553 (D.C. 1994).
189
If a trial court concludes that the government‘s failure to preserve evidence
constituted a violation of Rule 16, ―[i]n fashioning the appropriate sanction, the
court should weigh the degree of negligence or bad faith involved, the importance
of the evidence lost, and the evidence of guilt adduced at trial.‖ (Anthony)
Robinson v. United States, 825 A.2d 318, 331 (D.C. 2003). The trial court may
select from the ―extremely broad‖ range of sanctions for corrective action that is
―just under the circumstances.‖ Tyer v. United States, 912 A.2d 1150, 1165 (D.C.
2006). ―We review the denial of a request for a missing evidence instruction for
abuse of discretion,‖ id. at 1164, and we ―will not reverse the trial court‘s decision
as to what sanctions, if any, to impose . . . unless there is an error which has
substantially prejudiced a defendant‘s rights.‖ Allen, 649 A.2d at 553 (emphasis
omitted).
The government agrees with Cooper that the recorded jail calls were
discoverable and does not dispute the trial court‘s characterization of the
government‘s loss of the recordings as the result of ―substantial negligence‖ and
―real carelessness‖ constituting a Rule 16 violation. However, our review of the
record supplies no basis for this court to disturb the trial judge‘s conclusion
regarding the minimal importance of the missing evidence to the defense
190
(particularly in light of the doubts he properly expressed regarding whether Cooper
would have been able to make use of any of the statements that may have been
contained in the lost recordings).76 Tyer, 912 A.2d at 1166.
Because the missing evidence instruction ―essentially creates evidence from
non-evidence,‖ we have said that trial courts should take care that its use does not
unfairly change ―the tone of the evidence‖ or invite the jury to ―give undue weight
to the presumed content of testimony not presented.‖ Id.; Thomas v. United States,
447 A.2d 52, 58 (D.C. 1982). Any claim of prejudice that Cooper makes related to
the trial court‘s refusal to administer a missing evidence instruction is undermined
by the corrective measures that the trial court did employ, which included both a
prohibition against the government eliciting any testimony regarding the contents
of the missing calls, and the administration of a stipulation informing the jury that
the calls had been lost while in possession of the government. Therefore, we find
no abuse of discretion in the trial court‘s choice of remedy.
76
Cooper, even on appeal, has not provided any specificity as to how he
would have used the contents of the calls.
191
2. Dewey Chappell
Dewey Chappell was a government witness with ties to appellants and the
22nd Street Crew. He was arrested for unrelated criminal activity on January 23,
2009, as this trial was ongoing. Subsequently, he became a cooperating witness
for the government. His testimony was focused on the efforts of Cooper and others
to obstruct justice with regard to the Johnson sisters in the aftermath of the
Terrence Jones murder, and Harris‘s flight into hiding following the James Taylor
murder.
Prior to his testimony, the government made extensive disclosures related to
Dewey Chappell‘s criminal history and other potential impeachment material. As
part of these disclosures, the government informed appellants that a gun had been
taken by law enforcement from Chappell‘s home on January 23, 2009, during his
arrest. The government also disclosed that Chappell‘s fingerprints had been lifted
from the gun.
Dewey Chappell was impeached extensively on bias by various defense
counsel during his cross-examination. After the government rested its case, and
during the defense cases-in-chief, the National Integrated Ballistics Network
192
(―NIBN‖) made the government aware that there was a possible link between the
gun that had been taken from Chappell‘s home and a homicide that occurred in
January 2009 prior to his arrest. The government did not disclose this fact to the
defense.
The government also made a conscious effort not to discuss the matter with
Dewey Chappell so that he would not be aware of the link, and therefore he would
not have any additional motive to curry favor with the government. About a week
later, while the defense cases were still ongoing, the match was confirmed by
NIBN.
However, Dewey Chappell was apparently never considered a suspect by the
government in the January 2009 murder. After the merits portion of this trial
ended, but before sentencing, Chappell was debriefed about the ballistic link and
told investigators that he was unaware of any facts related to that homicide. He
also indicated that the gun found at his home belonged to a person who previously
stored it at the home of Chappell‘s relative. Chappell had agreed to take the
weapon and store it at his house once police started ―snooping around‖ his
relative‘s home.
193
Before sentencing was conducted, the government reversed course and
decided to disclose the ballistics information to appellants. However, the
government argued that there was no discovery violation because the information
would not have been relevant unless Dewey Chappell had known of the ballistics
link at the time that he testified for the government. Therefore, he had no reason to
curry favor with the government through cooperation.
All appellants argued that they were entitled to a new trial. Their argument
was that by not disclosing the information, the government prevented them from
(1) cross-examining Dewey Chappell on his perceived fear of prosecution for the
January 2009 homicide, (2) showing that Chappell was hiding a weapon and
therefore hindering the January 2009 homicide investigation, and (3) investigating
the possible connection between that weapon and the murders of which appellants
were convicted in this case. After a hearing, the trial court denied appellants‘
motions for a new trial, finding no discovery violation. Appellants now renew
their claims, in essence, on appeal.
Brady issues are mixed questions of law and fact. Mackabee v. United
States, 29 A.3d 952, 959 (D.C. 2011). While a trial court‘s findings of ―historical
194
fact‖ are reviewed for clear error, where the court‘s findings ―concern[] the legal
consequences of historical facts,‖ they are reviewed de novo. Id. (internal
quotation marks omitted).
―[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution.‖ Brady,
373 U.S. at 87; (Wesley) Williams, 881 A.2d at 561. ―The evidence is material
only if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.‖ Id. at 562
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Such material
evidence may include impeachment matters. (Michael) Robinson v. United States,
50 A.3d 508, 519 (D.C. 2012).
The non-disclosure concerning Dewey Chappell was not material under
Brady, and we find no grounds for relief. ―Impeachment evidence is not material
if the witness does not have knowledge of the underlying fact.‖ Ifelowo v. United
States, 778 A.2d 285, 295 n.13 (D.C. 2001) (quoting Williams v. Scott, 35 F.3d
159, 162 (5th Cir. 1994)); Blunt v. United States, 863 A.2d 828, 835 (D.C. 2004)
195
(―When evaluating the possibility of bias in adverse testimony, the objective
likelihood of prosecution and the subjective intent of the government to prosecute
are irrelevant[.] Rather, it is the witness‘ belief that prosecution is possible that
can produce bias.‖) (citations and internal quotation marks omitted). This is
because, of course, a witness cannot be motivated to act in a certain way if he has
no knowledge that he should be motivated to do so.
Here, there is no evidence that Dewey Chappell was aware of the NIBN
finding linking the weapon found at his house to the January 2009 homicide. In
fact, the government went out of its way to avoid exposing Chappell to knowledge
of the ballistic link so that he would not have motive to ―curry favor‖ and avoid
prosecution. Therefore, the undisclosed evidence lacked the necessary impeaching
qualities so as to be material under Brady.
Moreover, on this record, we see no evidence that would suggest that the
ballistics information had investigatory value to appellants such that its non-
disclosure would have violated the government‘s disclosure obligations.
Mackabee, 29 A.3d at 961 (mere speculation that evidence might have led to
discovery of exculpatory evidence insufficient to establish a Brady violation).
196
Finally, we agree with the trial court that the extensive cross-examination of
Dewey Chappell on issues related to bias, including based on the weapon that was
found in his home, was such that had the ballistic evidence been disclosed there
was still no reasonable possibility that the results of this case would have been
different. See Fortson, 979 A.2d at 662-63; Watson v. United States, 940 A.2d
182, 187-88 (D.C. 2008).
3. Kyara Johnson
Kyara Johnson, as an eyewitness to both the Terrence Jones and Laquanda
Johnson murders, was a critical government witness. She testified in Cooper‘s
2006 trial about Terrence Jones‘s murder, and again in this trial about that murder
and her sister‘s. In the weeks following Laquanda‘s murder, Kyara gave grand
jury testimony about the night of Laquanda‘s death. Before the grand jury, Kyara
testified that she saw Alphonce Little flee the scene of the crime by jumping on the
back of a moped driven by another man wearing his hair in dreadlocks and
carrying a gun. At trial, however, she testified on direct-examination that she
heard a moped but had not seen Little driven away on one.
On cross-examination, Kyara Johnson acknowledged that she had lied in the
grand jury. She also testified that she had informed the government that she had
197
been told the story about Alphonce Little and the moped by her friend Shaquita
Long. Apparently, the fact that Kyara was told about the moped by Long was not
previously known to appellants before this testimony. During a break in cross-
examination, appellants made motions alleging a discovery violation. Rushing
claimed that Long was an exculpatory witness because her testimony would
support a version of events where Little was not escorted from the murder scene by
Rushing and Beaver in Rushing‘s car. Beaver and Rushing, joined by Cooper,
renew that claim on appeal.
The government responded that Kyara Johnson‘s grand jury testimony about
Alphonce Little and the moped had long been available to the defense.
Additionally, the government proffered, Shaquita Long told the government at the
outset of the investigation into Laquanda Johnson‘s murder that she never saw
Little drive away on a moped. Instead, Long informed the government that she
saw various 22nd Street Crew members driving on 22nd Street on a moped about
an hour before the shooting.
The trial court found no discovery violation, but ordered the government to
make Long available to appellants for interviewing. The court also offered to
198
allow appellants to reopen their cases, if necessary, to the extent that Long could
not be located prior to the completion of their cases (which were scheduled to
begin three days after Kyara Johnson‘s testimony for the government finished).
We find no Brady violation based on these facts involving Kyara Johnson
and Long. Defense counsel acknowledged that they knew of the inconsistency
between Alphonce Little‘s and Kyara‘s version of events and used it to cross-
examine both of them concerning the moped. Rushing went on to argue in closing
that the inconsistency undermined Little‘s credibility.
As far as Long was concerned, the government proffer was unchallenged
that she would testify that she never saw a moped. This fact renders immaterial the
government‘s ―failure‖ to identify her as the source of Kyara Johnson‘s
information for her grand jury testimony. Our finding of immateriality is
supported by the fact that defense counsel never made any further mention of
Long. Nor did they ask for any sort of continuance in order to interview Long, or
subpoena her for trial, despite the express invitation of the trial court to do so.
(Wesley) Williams, 881 A.2d at 563 (importance of potentially exculpatory
199
witnesses decreases where no attempt is made to receive a continuance in order to
investigate their testimony).
E. Grand Jury Claims
Appellants Tann, Arnette, and Harris bring three claims raised at trial based
on the government‘s misuse of the grand jury: two focused on improprieties in the
pre-indictment process and a third alleged abuse of the grand jury after the
superseding indictment in this case was handed down. Pre-indictment, appellants
argue that the government improperly influenced the grand jury process by
summarizing testimony given to previous grand juries instead of calling live
witnesses; appellants also contend that prosecutors presented incompetent evidence
to the grand jury in violation of Tann‘s marital privilege. Post-indictment,
appellants contend that the government unlawfully used the grand jury as a
discovery tool when prosecutors called a witness to the grand jury for purposes of
―locking-in‖ his testimony after appellants had already been indicted. We find that
the trial court did not abuse its discretion in handling these matters at trial.
Therefore, appellants are entitled to no relief based on their claims.
Two grand juries were convened and issued indictments against appellants.
In October 2007, a grand jury indicted all appellants except Rushing. In February
200
2008, after Alphonce Little gave the government new information about Rushing‘s
role in the Laquanda Johnson murder, a second grand jury handed down the
superseding indictment upon which the government proceeded in this case.
Apparently, the only new evidence presented to the second grand jury was the
testimony of Detective Mayberry reciting Rushing‘s recently discovered
involvement in Laquanda‘s murder. The prosecutor also summarized numerous
transcripts of testimony from previous grand jury investigations, and then
prosecutors left those transcripts and accompanying exhibits with the grand jury
for its consideration.77
During the testimony of Tracey Tann, the issue of marital privilege was
raised. The Tanns were married in April 2004 – approximately one year after the
Leslie Jones murder. Prior to their marriage, Tann told Tracey that he killed a man
named ―Bone‖ (Leslie Jones‘s nickname) on 22nd Street. On cross-examination,
Tann‘s defense counsel elicited the discrepancy between the location where Tracey
testified that Tann told her the murder was committed (22nd Street), and the
location where it actually occurred (Shipley Market), in an attempt to undermine
77
The government represented that the reason summaries were provided
was that the transcripts, which referenced exhibits, would not make sense to the
reviewing grand jury without explanation.
201
her testimony. In response, the prosecution sought to introduce, on re-direct,
Tracey‘s grand jury testimony to the effect that after their marriage Tann told her
(in confidence) that he had actually committed the murder at Shipley Market.
The trial court recognized the marital privilege issue and noted that Tracey
could not testify to that fact at trial. Moreover, after reviewing her grand jury
testimony, the court found that Tracey should not have testified about that
privileged statement before the grand jury. At trial, Tann and Harris, now joined
by Arnette on appeal, argued for dismissal of the indictment based on Tracey‘s
incompetent testimony and the prosecutor‘s summarizing of evidence to the grand
jury. The trial judge, relying primarily on Bank of Nova Scotia v. United States,
487 U.S. 250 (1988), rejected both of appellants‘ pre-indictment claims.
The final grand jury issue was raised during discussions about the
anticipated testimony of a government witness, Willie Jones. The government
intended to call Willie Jones to describe a conversation that he had with Tann, after
the Terrence Jones murder, in which Tann told him that Tann had approached a
different government witness in a threatening manner. Tann objected, essentially,
on grounds that the proffered testimony was vague and irrelevant. After
202
reviewing Willie Jones‘s grand jury testimony in the course of ruling on the
objection, the trial court noticed that his testimony was given after the date of the
superseding indictment in this case.
Sua sponte, the court raised the issue that it was improper to call witnesses to
participate in grand jury investigations in order to obtain evidence on already
indicted cases. The government represented that Willie Jones was subpoenaed to
give evidence on other unindicted murders still under investigation by the grand
jury. The government further proffered that it had learned that Willie Jones had
facts relevant to the instant case during a pre-grand jury interview. According to
the government, Willie Jones then testified about the facts of this case incidental to
his testimony about other unindicted matters.
The court disagreed with the government‘s representations and found that
Willie Jones‘s testimony about the already indicted offenses in this case was the
dominant purpose of his grand jury appearance. However, after a series of
pleadings and hearings, the court found that it would be inappropriate to prohibit
Willie Jones from testifying because the government properly uncovered the
information underlying his testimony during a pre-grand jury interview pursuant to
203
a lawfully issued subpoena. Instead, the court ruled that the proper remedy would
be to prohibit the government from using Willie Jones‘s grand jury testimony in
any way during trial.
1. Pre-indictment
―[A]s a general matter, a [federal] court may not dismiss an indictment for
errors in grand jury proceedings unless such errors prejudiced the defendants.‖
Bank of Nova Scotia, 487 U.S. at 254; (Phillip) Williams v. United States, 757
A.2d 100, 105 (D.C. 2000) (adopting the same standard for District of Columbia
courts). Except for cases involving ―fundamental‖ errors ―in which the structural
protections of the grand jury have been so compromised as to render the
proceedings fundamentally unfair,‖ dismissal of the indictment is appropriate only
―if it is established that the violation substantially influenced the grand jury‘s
decision to indict, or if there is grave doubt that the decision to indict was free from
the substantial influence of such violations.‖ (Phillip) Williams, 757 A.2d at 105
(internal quotation marks omitted) (quoting Bank of Nova Scotia, 487 U.S. at 256-
57).
Here, the record clearly reflects that the trial court applied and quoted the
correct standard from Bank of Nova Scotia in deciding whether to dismiss the
204
indictment despite the improper exposure of privileged marital testimony to the
grand jury.78 Similar to the record in (Phillip) Williams, the record in this case
shows that the grand jury had compelling evidence before it other than the
testimony admitted in error. Specifically, the grand jury heard premarital
testimony from Tracey describing how Tann killed a man named ―Bone,‖ who was
related to one of his rivals. Therefore, Tracey‘s incompetent post-marital
testimony was largely cumulative with her testimony that was properly before the
grand jury. Furthermore, the grand jury had powerful testimony from two
eyewitnesses describing Leslie Jones‘s murder: Alphonce Little, testifying that he
saw Tann shoot Leslie Jones, and Tyrone Curry, describing how he heard gunshots
and observed Tann run from the scene of the shooting immediately thereafter.
Consequently, the trial court correctly concluded that the premarital
statements, and other evidence going to Tann‘s murder of Leslie Jones, were
78
See D.C. Code § 14-306 (b) (2012 Repl.) (―In civil and criminal
proceedings, a spouse or domestic partner is not competent to testify as to any
confidential communications made by one to the other during the marriage or the
domestic partnership.‖); (Cotey) Wynn v. United States, 48 A.3d 181, 189 (D.C.
2012) (―[t]he word ‗proceeding‘ may comfortably be used to describe
investigations by a grand jury‖); In re Grand Jury Investigation, 431 F. Supp. 2d
584, 592 (E.D. Va. 2006) (―[I]t is . . . well-established that the marital privilege
may be invoked during grand jury testimony.‖) (citing United States v. (Thomas)
Morris, 988 F.2d 1335, 1337 (4th Cir. 1993)).
205
―compelling evidence‖ for the grand jury to find probable cause even setting aside
the privileged post-marital testimony. We find that the problematic testimony did
not ―raise a substantial question, much less a grave doubt, as to whether [it] had a
substantial effect on the grand jury‘s decision to charge.‖ Bank of Nova Scotia,
487 U.S. at 263.
Appellants‘ argument about the way in which testimony was presented to the
grand jury which issued the superseding indictment amounts to the type of
reliability challenge which, on these facts, also does not establish prejudice under
the Bank of Nova Scotia standard. See id. at 262-63 (determining that dismissal of
indictment not warranted on the basis of a reliability challenge to the accuracy of
IRS agents‘ tandem reading of transcripts before the grand jury given no showing
of prejudice). Regarding the use of transcripts in the grand jury generally, we note
that this court has ―sanctioned the prosecutor‘s use of a transcript of a witness‘
prior sworn grand jury testimony in a later, separate grand jury proceeding.‖ Miles
v. United States, 483 A.2d 649, 654 (D.C. 1984); see also United States v.
Calandra, 414 U.S. 338, 344-45 (1974) (―The grand jury‘s sources of information
are widely drawn, and the validity of an indictment is not affected by the character
of the evidence considered.‖)
206
As to the prosecutor‘s summaries of the testimony contained in the
transcripts that were presented to the grand jury, we find that the record does not
reflect ―any attempt by the prosecutor to deceive the grand jury.‖ Miles, 483 A.2d
at 654. The prosecutor represented, without contradiction, that she accurately
summarized the testimony in the transcripts and left the transcripts with the grand
jury for its review. Indeed, the prosecutor also stated that the second grand jury
was correctly alerted that Alphonce Little had perjured himself before the prior
grand jury. Where there is no indication that the grand jury was in any way misled
based on the manner of the government‘s presentation of the evidence, we have no
basis to find that the trial court abused its discretion in refusing to dismiss the
indictment.
2. Post-Indictment
Finally, with regard to the trial court‘s fashioning of an appropriate remedy
for the government‘s improper elicitation from Willie Jones before the grand jury
of information concerning already indicted matters, we again review for an abuse
of discretion, and find none. See United States v. Breitkreutz, 977 F.2d 214, 217
(6th Cir. 1992) (reviewing for abuse of discretion the trial court‘s denial of the
defendant‘s motion to grant appropriate relief based on allegations of post-
indictment government misuse of the grand jury to ―‗lock-in‘ incriminating
207
testimony‖). ―While a grand jury wields broad investigatory powers prior to
returning an indictment, courts uniformly have held that, once a targeted individual
has been indicted, the government must cease its use of the grand jury in preparing
its case for trial.‖ See Resolution Trust Corp. v. Thornton, 41 F.3d 1539, 1546
(D.C. Cir. 1994) (internal quotation marks and alterations omitted); see also
Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972) (―It is a misuse of the
grand jury to use it as a substitute for discovery.‖).
However, in fashioning an appropriate remedy where a post-indictment
violation of the grand jury process has occurred, federal courts impose one that
―fit[s] the circumstances of the particular case.‖ See, e.g., United States v.
Kovaleski, 406 F. Supp. 267, 271 (E.D. Mich. 1976). We believe this is the
rational and proper standard for trial courts to apply.
Here, the trial court‘s decision to bar the government from using Willie
Jones‘s grand jury testimony at trial put the government in exactly the same
position it would have been in absent its misuse of the grand jury. The government
learned relevant information from Willie Jones during a proper pre-grand jury
interview and could have subpoenaed him directly as a trial witness, rather than
208
having him testify at the grand jury on already indicted matters. It is unchallenged
that the government had a legitimate purpose in originally subpoenaing Willie
Jones to the grand jury; namely, to learn about unindicted matters under
investigation.
Accordingly, given these facts, the trial court‘s choice of remedy – to permit
the government to call Willie Jones as a witness but to prohibit it from using his
grand jury testimony in any way – seems fitting and not in error. Cf. id. at 271
(precluding the government from calling the witness at trial was ―the only effective
remedy‖ on the facts of that case). Therefore, appellants‘ grand jury claims are
denied.
X. Merger
Appellant Tann argues for merger of the following convictions: (1) his three
convictions for second-degree murder of Terrence Jones, (2) his three PFCV
convictions arising out of the Terrence Jones murder, (3) his two PFCV
convictions arising out of the James Taylor-Bernard Mackey incident, (4) his two
PFCV convictions arising out of the armed robbery and AWIKWA of Richard
Queen, and (5) his PFCV convictions arising out of the Queen facts with his PFCV
convictions arising out of the Terrence Jones facts.
209
Appellant Arnette joins Tann as to arguments (1) and (2). The government
concedes arguments (1), (2), and (3), but contends that Tann‘s two PFCV
convictions for the armed robbery and AWIKWA of Richard Queen do not merge
with each other or with his remaining PFCV conviction for the Terrence Jones
murder. This court reviews merger issues de novo. Nero v. United States, 73 A.3d
153, 159 (D.C. 2013).
The Double Jeopardy Clause protects defendants against multiple
punishments for the same offense, but does not prohibit multiple punishments for
―separate criminal acts.‖ Owens v. United States, 497 A.2d 1086, 1094-95 (D.C.
1985). ―[A]s a general rule, where two predicate armed offenses do not merge, a
defendant may be convicted of separate counts of PFCV relating to each offense
. . . .‖ Stevenson v. United States, 760 A.2d 1034, 1035 (D.C. 2000). The rule,
however, is susceptible to a limited exception: ―multiple PFCV convictions will
merge, even if the predicate felony offenses do not merge, if they arise out of a
defendant‘s uninterrupted possession of a single weapon during a single act of
violence.‖ 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) (applying the rule of lenity
210
and holding that three PFCV convictions merged into one where the defendant
fired several times into a car containing multiple victims).
In determining whether multiple PFCV convictions are based on a single act
or distinct acts of violence, we apply the so-called ―fork-in-the-road‖ or ―fresh
impulse‖ test. Matthews, 892 A.2d at 1106; Stevenson, 760 A.2d at 1037 (―If at
the scene of the crime the defendant can be said to have realized that he has come
to a fork in the road, and nevertheless decides to invade a different interest, then
his successive intentions make him subject to cumulative punishment . . . .‖).
Under that test, Tann‘s PFCV convictions related to the robbery and
shooting of Richard Queen do not merge. Donald Matthews testified that Tann
and other men pinned Queen against a car, beat him, and went through his pockets,
that Queen tried to run away, and that Tann picked up a gun that had fallen to the
ground and shot Queen in the back. Tann reached a ―fork-in-the-road‖ and had the
opportunity for a ―fresh impulse‖ when Queen began to run and Tann picked up
the gun and made the decision to shoot. See Baker, 867 A.2d at 1010; Sanders v.
United States, 809 A.2d 584, 604 (D.C. 2002); Stevenson, 760 A.2d at 1037-38.
211
Similarly, Tann‘s Richard Queen-related PFCV convictions do not merge
with his PFCV conviction for aiding and abetting Cooper‘s murder of Terrence
Jones. Tann argues that the convictions should merge because the Terrence Jones-
Richard Queen incident ―was a rapidly developing, short-lived assaultive event.‖
However, in Harrison, 76 A.3d at 826, we concluded that two defendants‘
convictions for AWIKWA and first-degree felony murder did not merge on facts
showing that one defendant shot one victim at nearly the same time as the other
defendant shot a second victim. Id. at 831-32. We also held that the defendants‘
resulting PFCV convictions did not merge because the ―separate shootings arose
from fresh impulses and targeted different victims.‖ Id. at 844; see also Wages v.
United States, 952 A.2d 952, 964 (D.C. 2008) (PFCV convictions for the shooting
of different victims merge only when ―there was a single shooting incident, that is,
one assaultive act that resulted in multiple victims‖). In the same way, Tann‘s
PFCV associated with his robbery and shooting of Richard Queen does not merge
with his PFCV related to Cooper‘s shooting of Terrence Jones because the two
PFCV offenses involved ―separate assaulting acts.‖ Harrison, 76 A.3d at 844.
Therefore, we leave unmerged his PFCV convictions arising out of the armed
robbery and AWIKWA of Richard Queen.
212
XI. Conclusion
In the final analysis, we reverse the judgment at trial as to the following:
Beaver‘s CPWL judgment of conviction, Arnette‘s PFCV judgment of conviction
related to the armed robbery of Richard Queen, and Arnette‘s judgment of
conviction for armed robbery. We remand the case to the trial court with the
following instructions: (1) to enter a judgment of conviction against Arnette for
the lesser-included offense of robbery79 and (2) to merge the following judgments
of conviction – Tann‘s three judgments of conviction for second-degree murder of
Terrence Jones, Arnette‘s three judgments of conviction for second-degree murder
of Terrence Jones, Tann‘s three PFCV judgments of conviction associated with his
convictions for the murder of Terrence Jones, Arnette‘s two remaining PFCV
judgments of conviction arising out of the murder of Terrence Jones, and Tann‘s
two PFCV judgments of conviction arising out of the James Taylor-Bernard
Mackey incident. In all other respects, the judgments of conviction are affirmed.
So ordered.
79
See (Leon) Robinson, No. 11-CF-1443, slip op. at 37-38; Jackson, 940
A.2d at 996.
213
GLICKMAN, Associate Judge, concurring in part and dissenting in part: For
the most part, I join the per curiam opinion disposing of the appeals in these
several cases. I cannot join Section VII.C, however. In that section, my colleagues
hold that appellants Harris and Tann could be liable for aiding and abetting Robert
Foreman‘s shooting of James Taylor and Bernard Mackey even if Harris and Tann
were unaware of Foreman‘s presence or actions and did not intend to assist or
encourage Foreman in his criminal activity. I believe my colleagues in the
majority base that holding on an erroneous theory of accomplice liability—a novel
theory of their own devising, and one not relied on at trial or argued on appeal.
As the per curiam opinion explains in more detail, the shootings occurred on
May 4, 2006, at a playground on 22nd Street Southeast. According to the
government‘s proof at trial, after Omar Harrison verbally abused and slapped
Ashley Tyndle, several members of the 22nd Street Crew, including Harris and
Tann, rushed to Tyndle‘s defense. Harris and Tann fired several shots at Harrison.
Foreman, another member of the Crew, arrived on the scene a few moments later
and, unbeknownst to Harris and Tann, independently decided to join in the
shooting. Foreman missed Harrison but the evidence supported a finding that he
hit, and killed, Taylor. He also may have fired the shot that injured Mackey. Over
appellants‘ objections, the trial court instructed the jury that Harris and Tann could
214
be found guilty for these two shootings as aiders and abettors based on their
participation in ―the crime‖ (i.e., their own shooting at Harrison) even if they did
not knowingly or intentionally assist or encourage the principal assailant (i.e.,
Foreman). The jury found Harris and Tann guilty of first-degree murder while
armed for Taylor‘s death and of assault with intent to kill while armed for the
wounding of Mackey.
The fundamental issue on which I differ with my colleagues is whether a
person can be found guilty as an aider and abettor under the law of the District of
Columbia without proof that he intended to assist or encourage the principal
offender. I think not. Sitting en banc, we declared in Wilson-Bey that it is a
―requirement [for aiding and abetting liability] that the accomplice be shown to
have intended that the principal succeed in committing the charged offense.‖ 1 We
elaborated, in a subsequent decision, that this court has ―adopted the doctrine that
‗in order for a person to be held accountable for the specific intent of another under
an aiding and abetting theory of principal liability, the aider or abettor must have
knowingly aided the other person with the intent that the other person commit the
1
Wilson-Bey v. United States, 903 A.2d 818, 831 (D.C. 2006) (en banc).
215
charged crime.‘‖2 This core requirement has a long history, which is reviewed in
Judge Learned Hand‘s influential opinion defining accomplice liability under
federal law in United States v. Peoni.3 The Supreme Court endorsed Hand‘s
definition in Nye & Nissen v. United States,4 and it now is well settled that ―the
specific intent to facilitate the commission of a crime by another‖ is an essential
element of aiding or abetting under the general federal aiding and abetting statute,
18 U.S.C. § 2.5 ―The intent necessary to support a conviction for aiding and
abetting goes beyond the mere knowledge that the defendant‘s action would tend
to advance some nefarious purpose of the principal. Rather, the defendant must act
2
Little v. United States, 989 A.2d 1096, 1102 (D.C. 2010) (quoting Wilson-
Bey, 903 A.2d at 834).
3
100 F.2d 401, 402 (2d Cir. 1938) (explaining that ―all these definitions [of
an ―accessory‖] have nothing whatever to do with the probability that the
forbidden result [the crime committed by the principal offender] would follow
upon the accessory‘s conduct; and that they all demand that he in some sort
associate himself with the [principal‘s] venture, that he participate in it as in
something that he wishes to bring about, that he seek by his action to make it
succeed‖).
4
336 U.S. 613, 619 (1949).
5
United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir. 1997) (quoting
United States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982)); see also, e.g.,
Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014) (―[U]nder §2 ‗those who
provide knowing aid to persons committing federal crimes, with the intent to
facilitate the crime, are themselves committing a crime.‘‖) (quoting Central Bank
of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 181
(1994)).
216
with the specific intent of facilitating or advancing the principal‘s commission of
the underlying crime.‖6 Because ―our aiding and abetting statute does not differ
substantially from its federal counterpart,‖ we ―look to the federal courts‘
interpretation of the federal statute in construing our own.‖7
Thus, contrary to the position espoused by the government and implemented
by the trial court in this case,8 for a defendant to be liable as an aider or abettor, ―it
is not sufficient that he intentionally engaged in acts which, as it turned out, did
give assistance or encouragement to the principal‖; in addition, ―the accomplice
6
United States v. Frampton, 382 F.3d 213, 223 (2d Cir. 2004).
7
Wilson-Bey, 903 A.2d at 831 (internal quotation marks and brackets
omitted).
8
The government‘s position, at trial and on appeal, is that ―it is an
accomplice‘s intentional participation in a crime, not his association with a
principal, that gives rise to aiding and abetting liability.‖ Br. for Appellee at 204.
The government thus argues that Harris and Tann were aiders and abettors if, by
shooting at Harrison, they ―incited‖ Foreman to join in the attack, even if they did
so unknowingly and unintentionally. The trial court instructed the jury in
accordance with this theory. But the government has cited no authority supporting
its claim that unintentional incitement can constitute aiding and abetting. Cf.
BLACK‘S LAW DICTIONARY 880 (10th ed. 2014) (defining ―incitement‖ in the field
of criminal law as ―[t]he act of persuading another person to commit a crime‖).
Nor has the government been able to find any case, from any jurisdiction, holding
a defendant liable as an aider and abettor for the independent criminal act of
another that the defendant did not intentionally encourage or assist in some way.
217
must have intended to give the aid or encouragement‖ to the principal.9 For the
same reason, it is not sufficient that the defendant merely had the same mens rea as
the principal.10 There is ―a dual mental state requirement‖ for accomplice liability:
the accomplice not only must have ―the culpable mental state required for the
underlying crime committed by the principal‖; he also must ―assist[] or
encourage[] the commission of the crime committed by the principal with the
intent to promote or facilitate such commission.‖11
This does not mean the accomplice always must know the identity of the
principal offender. It almost always is the case, of course, that an accomplice does
know whom he is intentionally assisting or encouraging to commit an offense,
because they are co-participants in the venture (even if the accomplice may not
9
Wayne R. LaFave, CRIMINAL LAW § 13.2 (c) at 713-14 (5th ed. 2010)
(citing, inter alia, Bogdanov v. State, 941 P.2d 247 (Colo. 1997) (en banc)).
10
We have held that ―where a specific mens rea is an element of a criminal
offense, a defendant must have had that mens rea himself to be guilty of that
offense, whether he is charged as a principal or as an aider and abettor.‖ Perry v.
United States, 36 A.3d 799, 808 (D.C. 2011) (quoting Kitt v. United States, 904
A.2d 348, 356 (D.C. 2006)). This is a necessary, but not a sufficient, condition for
accomplice liability.
11
Bogdanov, 941 P.2d at 250-51 (internal citation and quotation marks
omitted); see also LaFave, supra n.9, § 13.2 (b) at 713 (―Generally, it may be said
that accomplice liability exists when the accomplice intentionally encourages or
assists, in the sense that his purpose is to encourage or assist another in the
commission of a crime as to which the accomplice has the requisite mental state.‖).
218
know the principal‘s name). But it is possible in some circumstances to be an aider
and abettor – to help or induce another person to commit a crime, and to do so
knowingly and intentionally – without knowing who that other person is. A typical
example is the person who knowingly attaches himself to a large group, such as a
lynch mob, a criminal gang, or a vigilante body, that is engaged in or bent on
breaking the law. Such a person may intentionally assist or encourage others in the
group to commit illegal acts, and thereby be liable for their offenses as an aider and
abettor, even though (given the size of the group, the chaos of the action, or other
circumstances) he may not know who is in the group or who the principal
offenders in it are.12 But one cannot be liable as an aider and abettor without
having the intent to assist or encourage a principal actor at all. One cannot be an
inadvertent accomplice.
The trial court therefore erred in allowing the jury to find Harris and Tann
guilty on the government‘s novel theory that they aided and abetted Foreman if, by
shooting at Omar Harrison themselves, they unknowingly and unintentionally
―incited‖ Foreman to join in the attack. It is beside the point that Foreman
12
As I discuss below, two of the cases relied upon by the majority, State v.
Ochoa, 72 P.2d 609 (N.M. 1937), and State v. Kukis, 237 P. 476 (Utah 1925), are
cases of this sort.
219
intended to aid and abet Harris and Tann; that has things backwards. Accomplice
liability depends on whether the accomplice intended to encourage or assist the
principal, not on whether the principal intended to encourage or assist the
accomplice.
My colleagues agree that the trial court erred by instructing the jury in
accordance with the government‘s theory of aiding and abetting. Yet in spite of
their agreement on this point, they affirm appellants‘ convictions on the basis of a
novel theory of their own devising that suffers from the same defects as the
government‘s theory. Under this theory, Harris and Tann are liable as Foreman‘s
accomplices even if they did not intend to encourage or assist Foreman, because
(1) they shared a ―community of purpose‖ with Foreman and (2) it was reasonably
foreseeable that their actions would inspire someone who shared their community
of purpose to commit the crime.13
To evaluate this theory of aiding and abetting liability without intentional
support for the principal, it is important to understand two things about its central
concepts. First, the term ―community of purpose‖ does not imply concerted
13
See ante at 74.
220
activity on the part of the principal and putative accomplice. According to my
colleagues, the requisite ―community of purpose‖ may exist in the absence of any
agreement, understanding, or cooperation between them with respect to the crime
in question; indeed, they may be unaware of each other and acting independently,
albeit to the same criminal end.14 Second, and most critically, my colleagues‘
theory of accomplice liability treats reasonable foreseeability as the legal
equivalent of intentionality.15
This represents a considerable expansion of the doctrine of accomplice
liability, for, as discussed above, it is a basic requirement in American criminal law
that an accomplice actually ―must intend that his acts have the effect of assisting or
encouraging‖ the principal.16 That the putative accomplice reasonably should have
foreseen the principal‘s actions (and, for that matter, that he would have approved
14
Ante at 77 n.28; see also ante at 75 n.27 (―[A] ‗community of purpose‘
necessarily implies that there exists some tacit, if not always explicit, agreement or
understanding between all involved (such as a code of conduct), even if there is no
agreement to commit a specific crime.‖ (majority‘s emphasis)).
15
Ante at 75 and n.26; see also ante at 81 n.32 (―[W]e rely on the principle
that Harris and Tann could be found to have intended the reasonably foreseeable
consequences of their acts.‖). The jury in this case, of course, was not required to
make a finding that Foreman‘s intervention was reasonably foreseeable to Harris
and Tann, let alone that the two defendants intended their actions to assist anyone.
16
LaFave, supra n.9, § 13.2 (c) at 714.
221
of them had he foreseen them) is not enough. Reasonable foreseeability is not the
legal equivalent of intentionality; as this court explained in Wilson-Bey, to equate
the two concepts is to confuse intentionality with the mental state on which mere
negligence is based.17 Often enough, people do not intend the reasonably
foreseeable consequences of their actions. While a trier of fact is permitted to infer
that a defendant did intend the reasonably foreseeable consequences of his acts, a
trier of fact is not and cannot be required to do so, and cannot be presumed to have
done so.18
My colleagues‘ theory of accomplice liability for the principal actor‘s
reasonably foreseeable acts seems to be patterned on the doctrine of Pinkerton
conspiracy liability. To establish Pinkerton liability, however, the government
17
See Wilson-Bey, 903 A.2d at 836-37; see also, e.g., Robinson v. United
States, 100 A.3d 95, 106 (D.C. 2014) (―Wilson-Bey rejected the proposition (and
any jury instruction incorporating it) that a defendant may be held liable as an aider
and abettor based on a merely negligent state of mind—i.e., for acts of
confederates that were merely ‗reasonably foreseeable‘ to the defendant or the
‗natural and probable consequences‘ of the criminal venture in which the defendant
intentionally participated—when a degree of mens rea higher than negligence was
required to convict the principal actor for those acts.‖).
18
Wilson Bey, 903 A.2d at 835 n.38; see also Sandstrom v. Montana, 442
U.S. 510, 522-24 (1979) (instruction in a criminal case that the ―law presumes that
person intends the ordinary consequences of his voluntary acts‖ held to
unconstitutionally shift the burden of persuasion).
222
must prove ―that an agreement existed, that a substantive crime was committed by
a co-conspirator in furtherance of that agreement, and that the substantive crime
was a reasonably foreseeable consequence of the agreement between the
conspirators.‖19 My colleagues‘ theory substitutes ―community of purpose‖ for the
conspiratorial agreement that is the sine qua non of Pinkerton. But this is no small
difference, because Pinkerton liability for the reasonably foreseeable acts of co-
conspirators is based on the existence of an agency relationship between the
conspirators. Such a relationship is created by their agreement but not by their
mere ―community of purpose‖ as my colleagues use that term.20
In essence, I think it fair to say that my colleagues‘ ―community of purpose‖
theory of unintentional aiding and abetting is what this court warned against in
Wilson-Bey: a hybrid that, without adequate justification, ―conflat[es] the two
doctrines [of conspiracy and aiding and abetting] into one omnibus and sprawling
theory of vicarious criminal liability.‖21 It is telling that the majority opinion cites
the ―broader conspiracy to kill ‗outsiders‘ among the 22nd Street Crew members‖
19
Collins v. United States, 73 A.3d 974, 982 (D.C. 2013) (quoting Wilson-
Bey, 903 A.2d at 840).
20
See Wilson-Bey, 903 A.2d at 842.
21
Id. at 841.
 223
as constituting both the evidence of ―the community of purpose that, as a factual
matter, was shared between Tann, Harris, and Foreman at the time of the
shooting,‖ and the reason it was ―foreseeable to Harris and Tann that other 22nd
Street Crew members in the area—including, unbeknownst to them, Foreman—
would respond by joining in the effort to shoot Omar Harrison.‖22 The effect is to
uphold Harris and Tann‘s convictions on a theory that they were Foreman‘s co-
conspirators rather than a theory that they were his aiders and abettors. But the
government has not relied on the doctrine of Pinkerton liability here. Harris and
Tann were not charged with the Taylor/Mackey shootings under Pinkerton, and the
government contended in the trial court that it ―was not required to show a prior
association between Harris [or Tann] and the third shooter . . . . [as] [s]uch an
association, while relevant under a vicarious-liability theory, was not, in the
government‘s view, necessary for aiding and abetting.‖23 Perhaps the government
misjudged its trial strategy, but if so, it is not the job of this court to remedy the
government‘s mistake.
22
Ante at 77 n.28.
23
Br. for Appellee at 193.
224
In lieu of providing a sound rationale for their hybrid theory of aiding and
abetting, my colleagues claim it is grounded in the common law. In support of that
claim, they cite five cases. None of them is from this jurisdiction, or from
Maryland (whence our common law derives24), and none is from a court adhering
to the Peoni doctrine. Four of the five cases were decided before Peoni, and the
fifth was decided not under common law, but under a statutory amalgamation of
aiding and abetting with conspiracy principles that has no counterpart in the law of
our jurisdiction. None of the five cited cases approves the theory of aiding and
abetting that my colleagues espouse; nor, I believe, would the courts in those cases
find Harris and Tann liable as Foreman‘s accomplices on such a theory.
In the two Kentucky cases, Whitt v. Commonwealth25 and Landrum v.
Commonwealth,26 the appellate court held that the defendant could not be
convicted of aiding and abetting a homicide in the absence of proof that he shared
the intent or purpose of the principal, who had intervened, independently and
without the defendant‘s knowledge, in the defendant‘s altercation with the
24
Woods v. United States, 65 A.3d 667, 671 n.8 (D.C. 2013); see In re
Estate of Parnell, 275 F. Supp. 609, 610 (D.D.C. 1967).
25
298 S.W. 1101 (Ky. 1927).
26
96 S.W. 587 (Ky. 1906).
225
decedent. My colleagues infer that the result would have been different had there
been evidence that the principal and the putative aider and abettor shared the same
purpose.27 That inference is belied, however, by the subsequent decision of
Kentucky‘s highest court in Haynes v. Commonwealth.28
The Haynes decision is rather on point. ―Upon receiving word that his two
sons, the appellants John Robert and Tounsel [Ray] Haynes, were engaged in what
might be called a ‗shoot-out‘ with William Caudill, the appellant Joe Haynes
armed himself with a rifle, went to the scene of the affray, and shot and killed
Caudill.‖29 All three appellants were convicted of manslaughter, and they
appealed. With respect to the two sons, who were tried as aiders and abettors of
their father‘s homicide, the Court of Appeals of Kentucky said ―[t]he question is,
under what circumstances does a person engaged in an affray become an aider and
27
But cf. id. at 588 (―If two or more acting independently assault another,
and one of them inflicts a mortal wound, the other is not guilty as an aider and
abettor.‖).
28
515 S.W.2d 240 (Ky. 1974).
29
Id. at 240-41.
 226
abettor of another who intervenes uninvited, even assuming that they ‘share the
criminal intent or purpose’‖?30
Contrary to my colleagues‘ theory of aiding and abetting, the court reversed
the two sons‘ convictions for lack of evidence that they sought their father‘s
intervention or did anything to provide ―assistance or encouragement‖ to him,
regardless of any shared criminal intent or purpose they and their father had in
shooting at Caudill.31 Nothing in Haynes supports my colleagues‘ notion that the
30
Id. at 241 (quoting Whitt, 298 S.W. at 1103; emphasis added).
31
Id. Specifically, the court said,
There is no evidence from which it may be reasonably
inferred, as distinguished from speculation, that either
of the sons sent for the father. There is no evidence
even that John Robert knew he had arrived until after
the killing. The clear weight of the evidence is that
John Robert had stopped shooting before the father
appeared and that Tounsel Ray never fired a shot
during the entire proceeding. All that Tounsel Ray
could have done that he did not do, as he lay in his
place of protection behind a rock and saw his father‘s
approach, was to ask him to stay back, but that
omission would not itself amount to assistance or
encouragement. Nor, of course, does the fact that
Tounsel may have provoked the encounter. On
balance, bearing in mind the great principle of
(continued…)
227
outcome would have been different had there been evidence that Joe Haynes‘s
intervention was foreseeable to his sons. On the contrary, there was such evidence
in the case—as the court expressly acknowledged, Tounsel Haynes (who may have
provoked the gun battle) saw his father coming to their aid and did not ask him to
―stay back‖—and the court held that it did not ―amount to assistance or
encouragement.‖32
The cases from New Mexico and Utah, State v. Ochoa33 and State v. Kukis,34
likewise do not support the thesis that a defendant may be convicted as an aider
and abettor without proof that he intentionally encouraged or assisted the principal.
The two cases merely illustrate that a member of a criminal mob who intentionally
helped other members commit a crime may be found guilty of aiding and abetting
them even if he does not know which particular member of the mob actually
(…continued)
reasonable doubt, we think the evidence here will not
justify conviction of the sons as participants in the
father‘s act.
Id.
32
See footnote 31, supra.
33
72 P.2d 609 (N.M. 1937).
34
237 P. 476 (Utah 1925).
228
perpetrated the offense.35 Neither Ochoa nor Kukis suggests that a defendant could
be found guilty as an accomplice if he lacked the intent to aid or abet others in the
mob to break the law.36 Rather, as the Supreme Court of New Mexico said in a
subsequent case, ―a jury cannot convict a defendant on accessory liability for a
crime unless the defendant intended the principal‘s acts.‖37
Lastly, the Illinois intermediate appellate court‘s decision in People v.
Cooks38 is similar to Ochoa and Kukis except that the defendant was a member of a
criminal gang rather than a mob, and the case involves the application of a hybrid
35
That proposition does not apply to sustain the convictions of Harris and
Tann in this case. They were not prosecuted for the offenses against Taylor and
Mackey on the theory that they had intentionally encouraged or assisted an attack
on Omar Harrison by a group (i.e., the 22nd Street Crew) that happened to include
Foreman. Had such a theory been properly presented to the jury and resulted in
conviction, my opinion on appeal might be different. See Rosemond v. United
States, 134 S. Ct. 1240, 1245, 1248-50 (2014). But that is not the situation with
which we are confronted.
36
It should be noted, however, that the Utah court accepted the doctrine,
which we rejected in Wilson-Bey, of accomplice liability for criminal acts that are
the ―probable and natural consequences‖ of the common design, even if those
consequences were not part of the accomplice‘s original intent. Id. at 481.
37
State v. Carrasco, 946 P.2d 1075, 1079 (N.M. 1997). Cf. Ochoa, 72 P.2d
at 616 (―The accused may not be held for the independent act of another even
though the same person be the victim of an assault by both.‖).
38
625 N.E.2d 365 (Ill. App. 1993).
229
state statute (rather than common law) providing, inter alia, that a person is
―legally accountable‖ for the conduct of another person in furtherance of their
―common criminal design or agreement.‖39 The defendant in Cooks was convicted
under this provision for a murder committed by an unidentified gunman based on
circumstantial evidence that the two were fellow gang members retaliating in a
―joint action‖ against members of a rival gang.40 Although the identity of the
second gunman was not established at trial, nothing in the court‘s opinion suggests
39
Ill. Rev. Stat. 1985, ch. 38, par. 5-2(c), which provided that a person is
―legally accountable‖ for the conduct of another when
(c) either before or during the commission of an offense, and with the
intent to promote or facilitate that commission, he or she solicits, aids,
abets, agrees, or attempts to aid that other person in the planning or
commission of the offense.
When 2 or more persons engage in a common criminal design or
agreement, any acts in the furtherance of that common design
committed by one party are considered to be the acts of all parties to
the common design or agreement and all are equally responsible for
the consequences of those further acts. Mere presence at the scene of a
crime does not render a person accountable for an offense; a person's
presence at the scene of a crime, however, may be considered with
other circumstances by the trier of fact when determining
accountability.
The statute appears to combine conspiracy and aiding and abetting principles,
including the natural and probable consequences doctrine that Wilson-Bey rejected.
40
Cooks, 625 N.E.2d at 370.
230
that the defendant‘s conviction would have been upheld absent evidence that he
and the unknown gunman were acting together and in concert with each other. The
Illinois Supreme Court has made clear that, even under the state‘s common design
rule, a defendant must have ―the intent to promote or facilitate [the principal‘s]
commission‖ of an offense.41
In sum, I submit that my colleagues have crafted an unprecedented and
unsound rationale for upholding Harris and Tann‘s convictions—a rationale that is
irreconcilable with Wilson-Bey and other binding decisions of this court. I am
compelled to add that this exercise in judicial creativity is all the more
objectionable because it is done sua sponte and without the benefit of any briefing
or other input by the parties on the merits of the ―community of
purpose/foreseeability‖ theory of accomplice liability or its application in this case.
I think it ill-advised, unfair to the parties, and contrary to this court‘s norms for the
majority to develop and rely on this unforeseeable reshaping of a major doctrine in
41
People v. Perez, 725 N.E.2d 1258, 1266 (Ill. 2000). ―Accountability‖
under Illinois law, the court explained, ―focuses on the degree of culpability of the
offender and seeks to deter persons from intentionally aiding or encouraging the
commission of offenses. Thus, unless the accomplice intends to aid the
commission of a crime, no guilt will attach.‖ Id. at 1265-66 (emphasis in the
original; internal quotation marks and citation omitted).
231
the criminal law without affording the parties the opportunity to address it in
supplemental briefing.42 In the past, when this court has considered deciding an
appeal on a basis ―the parties failed to identify and brief‖—a discretionary
departure from the general rule that points not urged on appeal are deemed to be
waived—we have taken care to ―ensure procedural fairness, both to the
government and to the defense, by providing each party with the opportunity to
brief‖ the issue.43 This is so even when the issue injected by the court involves
settled legal principles. There is no reason to deviate from that rule of basic
fairness here.
42
By the same token, I think it unfair and inappropriate for the majority to
find that the trial court‘s ―erroneous‖ failure to instruct the jury on the ―community
of purpose‖ theory of liability was harmless without affording Harris and Tann an
opportunity to address that question. (Parenthetically, for myself, I am not
persuaded to find harmless the trial court‘s erroneous rulings and instructions
rejecting the requirement that an accomplice must intend to encourage or assist the
principal.)
43
Randolph v. United States, 882 A.2d 210, 226-27 (D.C. 2005); see also
id. at 226 (―[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.‖).
232
For the foregoing reasons, I respectfully dissent from Section VII.C of the
per curium opinion and would reverse the convictions of Harris and Tann arising
from the shootings of Taylor and Mackey.