Wilson v. United States ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-464
STEVEN WILSON, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-10530-17)
(Hon. José M. López, Trial Judge)
(Argued March 9, 2021 Decided January 6, 2022)
Cecily E. Baskir for appellant.
Patricia A. Heffernan, Assistant United States Attorney, with whom Michael
R. Sherwin, Acting United States Attorney at the time, Elizabeth Trosman, John P.
Mannarino, Nicole E. McClain, and Gregory P. Rosen, Assistant United States
Attorneys, were on the brief for appellee.
Before GLICKMAN, Associate Judge, THOMPSON, * Associate Judge, and
GREENE, Senior Judge, Superior Court of the District of Columbia. **
*
Judge Thompson was an Associate Judge of the court at the time of
argument. Although her term expired on September 4, 2021, she will continue to
serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-
1502 (2012 Repl.). She was qualified and appointed on October 4, 2021, to
perform judicial duties as a Senior Judge and will begin her service as a Senior
Judge on a date to be determined after her successor is appointed and qualifies.
(continued…)
2
GREENE, Senior Judge:
I. Introduction
Appellant, Steven Wilson, was convicted by a jury of conspiracy to commit
burglary, unarmed kidnapping, unarmed first-degree burglary with the intent to
assault and commit theft, assault with a dangerous weapon, threat to kidnap or
injure, and unlawful entry. On appeal he argues that (1) the evidence was
insufficient to sustain his convictions for conspiracy to commit burglary and
burglary, (2) the trial court erroneously refused to instruct the jury on a claim of
right defense, (3) the trial court abused its discretion by improperly admitting a
witness’s prior consistent statements and text messages, and (4) his unlawful entry
conviction should have been merged with his burglary conviction. For the reasons
that follow, we affirm in part and vacate in part.
II. Background
(…continued)
**
Sitting by designation pursuant to D.C. Code §11-707(a) (2012 Repl.).
3
The evidence at trial disclosed that Hunion Henderson, the complainant was
a fifty-five-year-old man with a long addiction to crack cocaine who lived alone in
a one-bedroom apartment in the northeast quadrant of Washington, D.C. Lori
Fitzgerald (also known as Zakiya Ahmed) was Henderson’s crack dealer, and he
invited her to live in his home but did not think she was planning to sell drugs
there. While Henderson was in the hospital, Ahmed brought her boyfriend,
“Fanbone,” to live at Henderson’s apartment and moved her television, food, and
other items into the apartment, whereupon the two began selling drugs out of the
apartment.
After Henderson returned home from the hospital, he allowed Ahmed and
Fanbone to stay for a while, and they took over his bedroom while he slept on the
couch. Henderson said he never gave them permission to sell drugs out of the
apartment, but they sold him crack in exchange for his monitoring the door and not
“putting them out or calling the police.” Eventually, when Henderson asked
Fanbone and Ahmed to either leave or stay but to cease selling drugs out of the
apartment, they refused to do either.
When Henderson visited his family for Thanksgiving in 2016, his family
noticed he did not look well and decided he should not return to his apartment.
4
They contacted their cousin, a retired police officer, who in turn contacted
Metropolitan Police Department (MPD) Sergeant Curt Sloan.
Henderson thereafter entered a rehab program and met Larry Kimbrugh.
Kimbrugh was kicked out of the rehab program for using drugs, and Henderson let
him stay at his apartment. Meanwhile, Sergeant Sloan called Henderson while
Henderson was still in rehab; Henderson told him that there were guns in his
apartment and people selling drugs there, and he wanted those people to leave.
When Henderson returned from rehab, Kimbrugh had become “close” with
Ahmed and Fanbone. Henderson relapsed after moving back into his apartment.
On January 1, 2017, Henderson met appellant Wilson there when appellant came
to the apartment to spend time with Ahmed and others for appellant’s birthday
party.
On January 4, 2017, Sergeant Sloan and fellow officers burst into the
apartment to execute a search warrant. The officers removed Ahmed, Fanbone,
Kimbrugh, and others from the apartment, while Henderson stayed inside. 1
Appellant was not one of the people present at the time the police executed
1
the search warrant.
5
Sergeant Sloan asked Henderson if he was willing to cooperate with the United
States Attorney’s Office so they could help him get Ahmed and the others out of
his home, and Henderson agreed. At one point while Sergeant Sloan was still at
the apartment, Ahmed called Henderson and asked to pick up her clothes and other
items from the apartment. Henderson gave the phone to Sergeant Sloan who told
Ahmed she could not return to the apartment and would be arrested if she did.
Henderson and Ahmed began texting later that night. Ahmed repeatedly
texted Henderson asking to retrieve her things. He told her she could not come
back. Ahmed texted Henderson asking whether she should send “Rochelle or India
or my Protector!!! Or are we gonna get it right the first time?” Henderson
interpreted Ahmed’s reference to her “protector” to mean someone who would
retrieve her property by force or “any means necessary.” Henderson eventually
heard India Frazier, Ahmed’s friend, banging on the door saying that she knew he
was in there. He did not respond and instead called the police, but the police did
not respond.
Frazier testified that Ahmed asked her to help move Ahmed’s belongings out
of Henderson’s apartment because the police ejected her and Henderson would not
return her things. She further testified that when they arrived and Henderson did
6
not answer the door, Ahmed called appellant Wilson and told him that she needed
him to do something for her. Ahmed directed appellant to meet them on Taylor
Street and “to bring his friend,” which Frazier testified that she understood to mean
a knife or a gun. Ahmed picked up appellant with Frazier, and Ahmed explained
that Henderson called the police on her and her boyfriend and now would not let
Frazier in to pick up Ahmed’s things. Frazier said they did not discuss violence in
the car, but she understood appellant’s role was to be the “strong arm” and that
Henderson “was the type of person you could holler at and [he would] do what he
was told.”
When they arrived back outside Henderson’s apartment, they met Kimbrugh
who agreed to help them get into the apartment. After using drugs, Kimbrugh,
Frazier, and appellant went to Henderson’s door. Frazier saw appellant holding a
black gun the size of a “Glock.” Kimbrugh knocked and said “open the door.”
When Henderson opened the door, appellant pushed Frazier, Frazier pushed
Kimbrugh, and they all “fell into the apartment.” Frazier immediately took two
phones from Henderson’s person and called him a snitch. Frazier testified that
appellant then pistol-whipped Henderson in the face, made him get on the ground,
and hit him as she and Kimbrugh removed items from the apartment.
7
Henderson testified to the same sequence of events, and he further testified
that appellant stomped on his face, covered his face with a cloth, and told him,
“[Y]ou f****t motherf****r, I should shoot you.” Meanwhile, Henderson saw
Frazier and Kimbrugh taking items out of the apartment, only some of which
belonged to Ahmed. Appellant ordered Frazier to “take everything else out of
[Henderson’s] pocket,” whereupon Frazier and Kimbrugh then took Henderson’s
chain, ring, and money from his pocket and his boots from his room. They also
took two televisions, only one of which belonged to Ahmed.
While the others were removing property from the apartment, appellant
guarded Henderson, accusing him of “g[etting] his friend locked up,” and called
him a “snitch.” Ahmed then arrived and whispered to Henderson “in an evil tone”
saying, “[Y]ou thought you got away with it, you thought I wasn’t gonna get my
stuff,” and, “[Y]ou got my nephew locked up and you got my friend locked up.”
When appellant stated, “Let me shoot this n***, Sis,” Ahmed replied, “Beat him
up, but don’t shoot him.”
After the group left, Henderson called 911 twice. On the first call he stated,
“They just got done beating me up and pistol-whipped me,” and “I’m in a daze
8
right now . . . , please hurry up.” On the second call he said, “I told you I got
pistol-whipped”; “I just got whupped”; and “my eye is messed up.”
Police and an ambulance arrived and took Henderson to the hospital. MPD
Officer Darren Reaves’s body camera captured multiple conversations between
himself and Henderson on the way to the hospital and at the hospital about the
events. These videos were all entered into evidence. Officer Christian Glynn was
also present at the hospital when the officers questioned Henderson.
Henderson described appellant to Officer Glynn as a sixty-year-old Black
man with a beard and short hair who weighed just under 200 pounds. Henderson
said he knew appellant because appellant came to Henderson’s apartment on
January 1, on appellant’s birthday a few days prior to the incident. Appellant told
the officers that appellant, Ahmed, Kimbrugh, and Frazier removed items from his
apartment and that appellant struck him in the face with a gun, causing injuries to
his forehead and his eye.
Frazier, Henderson, Officer Christian Glynn, Sergeant Sloan, and Officer
Tara Tindall testified on behalf of the government, describing the foregoing
9
events. 2 Ronetta Johnson, the defense’s criminal investigator, and Officer Reaves
testified on behalf of the defense. The defense’s focus was on the impeachment of
the government’s two key witnesses, Henderson and Frazier.
On September 26, 2018, the jury found appellant not guilty of armed
kidnapping, armed first-degree burglary, armed robbery, obstruction of justice, and
three counts of possession of a firearm during a crime of violence. However, they
found him guilty of conspiracy to commit burglary, unarmed kidnapping, unarmed
first-degree burglary, assault with a dangerous weapon, threat to kidnap or injure,
and unlawful entry. Appellant was sentenced to 120 months’ imprisonment and
timely appealed.
III. Analysis
A. Sufficiency of the Evidence
Appellant argues that the evidence at trial was not sufficient to sustain his
convictions for conspiracy to commit burglary and burglary. The burden is on
2
Tara Tindall is an MPD officer who assisted in executing the search
warrant that was originally intended to find Ahmed but instead resulted in the
arrest of appellant with whom Ahmed was supposedly staying at the time. Her
testimony was used to identify Wilson at trial.
10
appellant when he is attacking the sufficiency of the evidence. Olafisoye v. United
States, 857 A.2d 1078, 1086 (D.C. 2004). This court “must deem proof of guilt
sufficient if, ‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Bassil v. United States, 147 A.3d 303, 307
(D.C. 2016) (quoting Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en
banc), in turn quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in
original).
Conspiracy to commit a crime requires that “(1) two or more persons formed
an agreement to commit a [crime], (2) the defendant knowingly participated in the
conspiracy with the intent to commit the offense, and (3) at least one person
involved in the conspiracy committed one of the charged overt acts.” Perez v.
United States, 968 A.2d 39, 104 (D.C. 2009) (quoting Pearsall v. United States,
812 A.2d 953, 960 (D.C. 2002)). In this case, the underlying crime was burglary;
consequently, the government was required to show a conspiracy to commit
burglary. D.C. Code § 22-801(a) provides:
Whoever shall . . . enter . . . any dwelling, or room used
as a sleeping apartment in any building, with intent . . . to
commit any criminal offense, shall, if any person is in
any part of such dwelling or sleeping apartment at the
11
time of such . . . entering, . . . be guilty of burglary in the
first degree.
The evidence in this case was sufficient to establish a conspiracy to commit
burglary based on an agreement to enter Henderson’s apartment with an intent to
steal or commit an assault. “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.” Tann v. United States, 127 A.3d 400,
424 (D.C. 2015) (quoting Castillo-Campos v. United States, 987 A.2d 476, 483
(D.C. 2010)).
Substantial evidence at trial showed that there was an agreement to assault
the complainant, Henderson, if not to also steal from him. Frazier testified that
Ahmed called appellant asking him to do something for her and requested he
“bring his friend.” Frazier perceived this to be asking him to bring a knife or a
gun. When in the car on the way to Henderson’s home, Ahmed explained to
appellant that Henderson called the police on her and her boyfriend and would not
allow her to get her things. Although violence was not explicitly discussed, Frazier
interpreted appellant’s role was to be the “strong arm.”
12
Appellant followed through on Ahmed’s request to bring a gun, as he had a
Glock handgun in his hands prior to entry—of which at least Frazier was aware—
thereby supporting an inference that there was an agreement to assault Henderson.
Appellant’s comment to Ahmed, “Let me shoot this n***, Sis,” and Ahmed’s
response, “beat him up but don’t shoot him,” also bolstered the inference that there
was an agreement to assault complainant. Frazier’s actions also support a
conclusion that some sort of agreement existed; when Henderson opened the door,
she immediately took Henderson’s phones from him and called him a snitch. This
evidence, viewed in the light most favorable to the government, is sufficient to
support a conviction for conspiracy to commit burglary.
The evidence was likewise sufficient to support a burglary conviction. The
trial court instructed the jury that it had to find that appellant “intended to assault
or steal” at the time of entry in order to convict appellant of burglary. 3 Here, the
3
However, it does not appear that the trial court either was requested to
instruct the jury or in fact instructed the jury that it must be unanimous as to which
crime or crimes appellant specifically intended to commit at the time of the
burglary, i.e., assault, theft, or assault and theft. Thus, there is an apparent
unanimity problem with the trial court’s instructions that the jury must find that
appellant had an intent to assault or steal without an accompanying instruction that
the jury must be unanimous as to which crime appellant intended to commit.
However, appellant has not raised an issue as to the lack of jury unanimity, nor
does it appear that either at trial or on appeal he made any such objection.
Consequently, appellant never preserved any objection he might have had for
(continued…)
13
evidence supported appellant’s intent to assault and to steal, and his co-
conspirators Kimbrugh’s and Frazier’s intent to steal, at the time of entry.
Immediately upon entering the apartment, appellant restrained Henderson with
force and struck him, while the others began to remove property from the
apartment, and appellant ordered Frazier to “take everything else out of
[Henderson’s] pocket.” This sequence of events, which occurred immediately
after entry, supports a finding that the intent to assault and to steal also existed
moments before, at the time of entry. See Lee v. United States, 699 A.2d 373, 384
(D.C. 1997) (finding sufficient evidence of intent to steal and to assault upon entry
because defendants “immediately exhibited aggressive behavior,” restrained the
complainants, and began to steal from them shortly after entering the home).
Based on these facts, a rational jury could have found the essential elements
of conspiracy to commit burglary and burglary.
B. Claim of Right Jury Instruction
(…continued)
appeal, and we merely note the apparent instructional problem. Cf. Marshall v.
United States, 623 A.2d 551, 565 n.6 (D.C. 1992) (Ferren, J., dissenting in part and
concurring in result only).
14
Appellant also argues that the trial court erred in denying his request at trial
for a claim of right jury instruction. 4 The model claim of right jury instruction in
the District of Columbia reads:
An element of the offense of robbery is that the
defendant had the specific intent to steal. You have heard
evidence that [name of defendant] believed that s/he had
a right to take the property. If a person takes the property
of another in the good faith belief that s/he has a right to
take it, the specific intent element of robbery is lacking.
It does not matter whether the defendant actually had a
right to the property. It is only necessary that s/he
believed in good faith that s/he was entitled to or could
legally take the property.
The government must prove beyond a reasonable
doubt that [name of defendant] did not believe in good
faith that s/he had a right to take the property. If it does
not do so, you must find him/her not guilty.
Criminal Jury Instructions for the District of Columbia, No. 9.521 (17th ed. 2019).
Appellant requested that this instruction be revised to state:
[You] heard evidence that Zakiya Ahmed believed that
she had a right to take the property and that Mr. Wilson
4
Appellant does not specify for which offenses he believes a claim of right
instruction was warranted. At trial, he requested it for the kidnapping, burglary,
and robbery charges, but not for the conspiracy charge. Because he was acquitted
on the robbery count, we need not address whether the instruction should have
been given as to that charge. With respect to the kidnapping charge, that offense
does not require an accompanying intent to steal or assault, but only “to hold or
detain.” This leaves us to address whether the claim of right instruction should
have been given as to the burglary charge.
15
was assisting her in defense of that right. . . . It does not
matter whether Ms. Ahmed actually had a right to the
property. It is only necessary that Mr. Wilson believed in
good faith she was entitled to or could legally take the
property. The Government must prove beyond a
reasonable doubt that Mr. Wilson did not believe Ms.
Ahmed had a right to the property.
The trial court denied appellant’s request.
The trial court did not clearly explain its decision in denying the claim of
right instruction; it seemed to conflate the defense’s request for a claim of right
jury instruction with the defense’s request for a defense of property jury
instruction, denying both because the defendant was not entitled to
“step into [Ahmed’s] shoes” to defend or retrieve her property by force.
“Generally, [w]hen a defendant requests an instruction on a theory of the
case that negates his guilt of the crime charged, and that instruction is supported by
any evidence, however weak, an instruction stating the substance of the
defendant’s theory must be given.” Higgenbottom v. United States, 923 A.2d 891,
899 (D.C. 2007) (quoting Gray v. United States, 549 A.2d 347, 349 (D.C. 1988)).
“Although the instruction need not be given exactly as suggested, the failure to
give such an instruction where some evidence supports it is reversible error.”
Frost v. United States, 618 A.2d 653, 662 n.19 (D.C. 1992). However, “[t]he trial
16
judge may properly refuse to give an instruction where no factual or legal basis for
it exists.” Id.In Richardson v. United States, 403 F.2d 574, 576, (D.C. Cir. 1968), the
court set out the claim of right defense for this jurisdiction. 5 A defendant cannot
be guilty of crimes for which a specific intent to steal is an element “unless he has
the specific intent to take the property of another.” Id. at 575. Therefore, a
defendant is entitled to a claim of right defense if s/he has a good faith belief that
s/he is legally entitled to the property s/he is charged with taking. Id. 6
In this case, appellant asserts that there was enough evidence to support a
claim of right defense because he only intended to help Ahmed recover her own
property and therefore lacked an intent to take property to which he and Ahmed
were not entitled. This court has not considered whether a defendant can assert a
claim of right defense on behalf of a third party who has authorized the defendant
5
This precedent is binding in this jurisdiction. See M.A.P. v. Ryan, 285
A.2d 310, 312 (D.C. 1971).
6
The comment to the Criminal Jury Instructions for the District of
Columbia, No. 9.521, indicates that the claim of right jury instruction can be used
for property crimes other than robbery that require specific intent.
17
to reclaim property. However, assuming the legal viability of such a claim, it is
doubtful in this case whether this court need reach that question because a
defendant cannot assert the claim of right defense when he takes property that he
did not in good faith believe belonged to him. 7
In this case, the evidence showed that Frazier and Kimbrugh took more than
just Ahmed’s property from Henderson’s apartment. Frazier took two phones from
Henderson right after appellant, Kimbrugh, and Frazier burst into his apartment;
only one phone belonged to Ahmed. They also took Henderson’s chain, ring, and
money from his pocket, all of his food, and his boots from his room. Because they
took items that they did not in good faith believe belonged to them or Ahmed,
there was no evidence to support appellant’s claim that he only intended to help
Ahmed recover her own property.
However, assuming without deciding that the trial court erred in failing to
give a claim of right instruction for the burglary charge, any error was harmless.
7
See, e.g., Smith v. United States, 330 A.2d 519, 521 (D.C. 1974) (a
defendant could not assert the claim of right defense when the defendant attempted
to retrieve a drug debt of $30 and instead took $500); Robertson v. United States,
429 A.2d 192, 195-96 (D.C. 1981) (affirming the denial of a claim of right
instruction when the defendant embezzled $601.99 from his employer but was only
entitled to $200).
18
“To find an instructional error harmless, ‘we must be satisfied with fair assurance,
after pondering all that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the error.’”
Higgenbottom, 923 A.2d at 899 (quoting Brooks v. United States, , 1101-02 (D.C.
1991)). “An error will be harmless, and will not be reversible, when the
instructions the court actually gave ‘adequately presented the defense theory’
and ‘properly inform[ed] the jury of the applicable legal principles involved,’
despite the erroneous omission.” Id. (quoting Gray v. United States, 549 A.2d 347,
351 (D.C. 1988) and Stewart v. United States, 687 A.2d 576, 578 (D.C. 1996)).
Here, the burglary charge was predicated on an intent to assault or steal. See
supra note 3. The trial court instructed the jury that it had to find that appellant
“intended to assault or steal” at the time of entry in order to convict him of
burglary. Setting aside intent to steal, there was substantial evidence of appellant’s
intent to assault. Prior to the incident, Ahmed texted Henderson asking whether
she should send “Rochelle or India or my Protector!!! Or are we gonna get it right
the first time?” By “protector,” Henderson interpreted Ahmed as meaning someone
who would retrieve her property by force or “any means necessary.” Frazier said
on the way to Henderson’s apartment that appellant and Ahmed did not discuss
violence, but she understood appellant’s role was to be the strong arm. Prior to
19
entering the apartment, Frazier saw that appellant was holding a black gun the size
of a “Glock.” Frazier and Henderson testified appellant pistol-whipped Henderson
in the face, made him get on the ground, and hit him. Henderson also testified that
appellant stomped on his face and covered his face with a cloth and said, “[Y]ou
f****t motherfucker, I should shoot you.” Frazier testified that appellant stated,
“Let me shoot this n***, Sis,” to which Ahmed replied, “Beat him up, but don’t
shoot him.” In both 911 calls, Henderson stated that he had just been pistol-
whipped. Thus, there is ample evidence that appellant had the intent to assault
upon entering the apartment, unrelated to any purported claim of right.
Moreover, the judge otherwise properly advised the jury of the applicable
legal principles and adequately presented the defense theory. Higgenbottom, 923
A.2d at 899. Although he did not give the claim of right jury instruction, he
summarized the defense’s theory, using the language requested by the defense,
stating:
It is the defense’s theory in this case that Mr.
Wilson was asked to assist in obtaining Ms. Ahmed’s
property and that he did so under a bona fide belief that
the property taken was hers. It is the defense theory that
he did not enter [the apartment] by force, nor did he enter
with the intent to rob, assault, or commit any other crime
against . . . Henderson; nor did he participate in the
planning of, or agreement [with] any such conduct.
20
Because the trial judge adequately presented the defense’s theory that
appellant did not believe he was doing anything wrong in assisting Ahmed procure
her property from appellant, and because there was ample evidence of appellant’s
intent to assault to which a claim of right defense would not apply, we are satisfied
that the judgment was not substantially swayed by any error in the jury instructions
and that any such error was harmless. See id.C. Evidentiary Claims
1. Prior Consistent Statements
Appellant argues that the trial court abused its discretion by admitting
Henderson’s statements he made to the police on January 5, 2017, because they
were made when Henderson had a motive to fabricate. 8 At trial, appellant’s
counsel cross examined Henderson about his cooperation with the government
8
Appellee, relying on Bardoff v. United States, 628 A.2d 86, 90 n.8 (D.C.
1993), argues that appellant abandoned this claim because appellant did not
identify any specific statements or their content in challenging the prior consistent
statements. Bardoff and D.C. App. R. 28(a)(10)(A) require that a party’s brief
contain “contentions of the appellant with respect to the issues presented, and the
reasons therefore, with citations to the authorities, statutes and parts of the record
relied upon.” We do not believe this claim is abandoned. Appellant adequately
detailed these statements in his statement of facts and identified the numbers of the
exhibits that were shown to the jury.
21
both in the drug dealing case involving Ahmed and Fanbone and in a drug
conspiracy case from 1994. The defense’s theory in eliciting this testimony was
that Henderson “ha[d a] motive to make himself a victim here rather than to be
charged as a co-conspirator in this drug conspiracy,” as he had done in the past.
Appellant’s counsel also questioned Henderson extensively on cross-
examination about his conversations with the MPD officers. The defense asked
him questions such as: (1) “and you did not say anything to Officer Reaves about
any gay slur being said to you. Isn’t that correct?”; (2) “did you tell Detective
Glynn that when the four individuals led by Larry came into your apartment, Steve
[appellant] began striking you in the face with a handgun, causing two lacerations
on your forehead and right eyelid?”; and (3) “Did you tell him that . . . all four
were removing items from the apartment?” Henderson agreed that he said some of
these things, denied saying some of them, and did not recall whether he said others.
On Henderson’s redirect examination, the government played five video
clips from Officer Reaves’ body camera footage on January 5, 2017. The clips
included conversations between Officer Reaves and Henderson in the ambulance,
and among Henderson, Officer Reaves, and Officer Glynn at the hospital,
discussing the police raid and the incident involving appellant, Frazier, Ahmed,
22
and Kimbrugh. The government introduced this evidence to “rehabilitate”
Henderson with respect to whether he was a cooperator and to rebut “the
implication about all the little things he did or did not say.” Appellant’s trial
counsel objected to the admission of these statements because they were made
after the motive to fabricate regarding the drug-dealing case arose, which was
when Henderson’s family contacted Sergeant Sloan and Henderson began to
cooperate with the police, around Thanksgiving of the previous year. The court
admitted the statements over appellant counsel’s objection.
This court reviews “the trial court’s evidentiary rulings for abuse of
discretion, recognizing that it is necessarily such an abuse for the trial court to
employ incorrect legal standards.” In re C.A, 186 A.3d 118, 121 (D.C. 2018).
Prior consistent statements are generally inadmissible because “‘mere repetition
does not imply veracity and . . . once an inconsistency in [a] statement is shown,
evidence of additional consistent statements does not remove the inconsistencies.’”
Mason v. United States, 53 A.3d 1084, 1090 (D.C. 2012) (quoting Brown v. United
States, 881 A.2d 586, 599 (D.C. 2005)). However, there are a number of
exceptions to this general rule that have been codified in this jurisdiction. Id. D.C.
Code § 14-102(b)(2) provides that
23
A statement is not hearsay if the declarant testifies
at the trial or hearing and is subject to cross-examination
concerning the statement and the statement is . . . (2)
consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the
witness of recent fabrication or improper influence or
motive. 9
This court has recognized an additional exception: a prior consistent
statement can be admitted where “the witness’ testimony has been impeached by a
portion of a statement which also contains relevant information that could be used
to meet the force of the impeachment.” Musgrove v. United States, 441 A.2d 980,
985 (D.C. 1982) (quoting Rease v. United States, 403 A.2d 322, 328 n.7 (D.C.
1979)). The purpose of this exception is to “assist a determination as to just how
serious the inconsistencies might be.” Coltrane v. United States, 418 F.2d 1131,
1140 (D.C. Cir. 1969).
Appellant argues that the statements Henderson made to the officers in the
ambulance and the hospital were made after his motive to fabricate originated, in
violation of D.C. Code § 14-102(b)(2), and are therefore inadmissible prior
consistent statements. However, although Henderson had previously given
9
See Fed. R. Evid. 801(d)(1)(B); BRIAN T. FITZPATRICK, ET AL., THE LAW OF
EVIDENCE IN THE DISTRICT OF COLUMBIA § 801.01(5)(a), (b), pp. 8-62–8-80,
Editorial Commentary and Case Annotations (6th ed. 2020).
24
information to Sergeant Sloan about the drug trade out of his apartment and agreed
to assist the government with regard to the drug dealing case, much of the
conversation in the clips was about events that transpired on the night of the
burglary in which Henderson was the victim. Any motive to lie that Henderson
had about the drug-dealing was not related to events associated with the burglary.
Henderson had no reason to be concerned about being implicated in the burglary-
related events where he was the victim. As the government argued at trial and the
trial court agreed, any motive to fabricate with regard to the burglary would have
occurred at the time Henderson was testifying at trial or after he agreed to testify.
Any motive to fabricate about the burglary would not have existed at the time of
his first report to police. Consequently, these statements fell under the exception in
D.C. Code § 14-102(b)(2).
These statements also were admissible under the second exception.
Appellant’s trial counsel questioned Henderson as to what he told Officers Reaves
and Glynn on the night of the incident, suggesting inconsistencies between his
testimony at trial and the earlier statements he made regarding whether he was
struck with a gun and whether he was called a homophobic slur, among other
things. By asking these questions, defense trial counsel opened the door to
clarification as to what Henderson told the officers in the ambulance and at the
25
hospital. Therefore, the government could properly introduce Henderson’s
statements to help the jury determine whether—and to what extent—the statements
were inconsistent. See Coltrane, 418 F.2d at 1140.
Finally, if there was error in the admission of these statements, any error was
harmless. This court will affirm a non-constitutional error if “we can say, ‘with
fair assurance, after pondering all that happened without stripping the [allegedly]
erroneous action from the whole, that the judgment was not substantially swayed
by the error.’” Clark v. United States, 639 A.2d 76, 84 (D.C. 1994) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Here, the statements at
issue were not admitted for their truth, but rather because Henderson’s credibility
with respect to the statements had been called into question. Indeed, the trial judge
instructed the jury that if they found the statements were consistent with
Henderson’s statements at trial, the jury could consider the consistency in judging
the credibility of Henderson, not for the truth of the statements. 10 Consequently,
the trial judge did not abuse his discretion in admitting these statements, and we
10
Not only were the statements in issue not admitted for the truth but for the
jury to assess Henderson’s credibility, but his statements on the video were
statements that the jury had previously heard, first through his own testimony and
then through Frazier’s testimony recounting the night’s events. Henderson had also
stated in his two 911 calls, both of which were admitted into evidence, that he had
been pistol-whipped.
26
are satisfied that their admission in evidence did not substantially sway the
judgment.
2. Ahmed’s Texts
Appellant also claims the trial court abused its discretion in admitting a
December 17, 2016, text from Ahmed to Henderson. At trial, the government
devoted a significant amount of time presenting evidence to develop the context
for the conspiracy between appellant and the other alleged co-conspirators, both
through witness testimony and documentary evidence. The government elicited
testimony from Henderson about the nature of his relationship with Ahmed leading
up to the January 5, 2017, incident. Henderson stated that in December 2016,
Ahmed had “started to get more aggressive and more demanding” in response to
Henderson’s request that she leave his apartment, and he said that “it just became a
real distorted relationship after that.”
It was at that point that the government introduced a text message from
Ahmed to Henderson on December 17, 2016. The text message read:
U got shit f****d up “gangsta” just cuz i dont jump when
u say jump don’t mean I dont respect u! What I dont
respect is bullshit and demands!! U cant demand
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anything from me! Nothing!! UND. OVERSTAND me??
Is Larry urhearts desire? He is cool! Respectful, chill,
conversationalist, etc..etc.. by the way… im the
“gangsta” in this family!!!!!
Before trial, appellant objected to the admission of these statements, arguing
that they could not come in as co-conspirator’s statements because they were made
weeks prior to the formation of the alleged conspiracy and the texts were not
relevant. The government responded that the texts were not being offered for their
truth but for context regarding Ahmed’s animosity towards Henderson. The trial
court denied appellant’s motion to exclude the texts, recognizing that evidence of a
conspiracy usually is found after the conspiracy has formed, but noting that “in this
case the contextual corroboration is in the events that occur prior to the formation
of the conspiracy.”
“A trial court has broad discretion to make evidentiary rulings because of its
familiarity with the details of the case and expertise in evidentiary matters, and we
review that ruling for abuse of discretion.” (Troy) Richardson v. United States, 98
A.3d 178, 186 (D.C. 2014). In (William) Johnson v. United States, 683 A.2d
1087, 1099-1100 (D.C. 1996) (en banc), this court adopted Federal Rule 403 which
provides: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
28
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Rule 403 “essentially presumes the
admissibility of relevant evidence, 11 and “[t]he trial court enjoys particularly broad
discretion in determining the relevance of a piece of evidence because the inquiry
is fact-specific and proceeds under a flexible standard.” (Troy) Richardson, 98
A.3d at 186. Evidence is relevant if it “tend[s] to make the existence or
nonexistence of a fact more or less probable than would be the case without that
evidence.” In re L.C., 92 A.3d 290, 297 (D.C. 2014). “The test for relevance is
not a particularly stringent one.” Street v. United States, 602 A.2d 141, 143 (D.C.
1992).
The trial court did not abuse its discretion in admitting Ahmed’s December
17th text to Henderson. The prosecution requested that the statements come in for
context, not for the truth of the matter asserted. Ahmed’s text was relevant in that
it gave context to the relationship between Ahmed and Henderson, which was
relevant to the government’s theory that Ahmed’s and Henderson’s relationship
deteriorated to the point that, on January 5, 2017, Ahmed sought revenge and
violence against Henderson, not just to retrieve her belongings. The prosecution
11
See FITZPATRICK, ET AL., supra note 9, § 403.01(2), Editorial
Commentary, p. 4-144.
29
discussed the formation and deterioration of their relationship in their opening
statements and throughout trial. The prosecution portrayed Ahmed as
manipulative of Henderson, while the defense portrayed Henderson as the
manipulator. The text supported the government’s theory that Ahmed was trying
to control Henderson and to continue selling drugs out of his apartment and that
she was aggressive when Henderson was not heeding her commands.
Furthermore, contrary to appellant’s argument on appeal, the text was not
unfairly prejudicial to him. Although the text used the word “gangsta,” the
purpose of introducing the text was to show Ahmed’s attempt to control Henderson
and her animosity towards him, not for the truth of the statements themselves or to
show that Ahmed was literally a “gangsta.” Additionally, although appellant was
Ahmed’s coconspirator, the text does not indicate that he was a “gangsta” or that
he was involved in the drug dealing that occurred out of Henderson’s apartment.
The trial judge did not abuse his discretion in admitting the text message.
Finally, if any error occurred in admitting these statements, it was harmless.
There was ample evidence in the record of Ahmed’s animosity towards Henderson.
Ahmed texted Henderson asking whether she should send “Rochelle or India or my
Protector!!! Or are we gonna get it right the first time?” Henderson interpreted
30
“Protector” as meaning that Ahmed was referring to someone who would retrieve
her property by force or “any means necessary.” When Ahmed called appellant,
she told him that she needed him to do something for her and directed appellant to
meet her on Taylor Street and “to bring his friend,” meaning a knife or a gun.
When Ahmed arrived at Henderson’s apartment while the incident was ongoing,
she whispered to Henderson, “[Y]ou thought you got away with it, you thought I
wasn’t gonna get my stuff,” and, “[Y]ou got my nephew locked up and you got my
friend locked up.” Ahmed also told appellant to “[b]eat [Henderson] up, but don’t
shoot him.” Although the text was helpful in giving context to Ahmed and
Henderson’s relationship and Ahmed’s animosity towards Henderson, it was not a
crucial piece of evidence in establishing the conspiracy.
D. Merger
Lastly, appellant argues his unlawful entry conviction should have merged
with his burglary conviction. Appellant asks that if his burglary conviction is not
vacated, the unlawful entry conviction be vacated. The government does not
oppose this request.
31
The jury found appellant guilty of both first degree burglary and unlawful
entry. The trial judge stated at sentencing that he believed the unlawful entry
conviction should merge with the burglary conviction. The trial court imposed a
sentence with the expectation that the unlawful entry conviction would merge with
the burglary conviction on appeal, if the burglary conviction was not reversed.
Because we are not reversing the burglary conviction, the unlawful entry
conviction will be vacated. Appellant’s remaining convictions are affirmed.
III. Conclusion
For the foregoing reasons, the trial court’s judgment is affirmed in part and
vacated in part.
So ordered.