Fortune v. United States
59 A.3d 949
| D.C. | 2013Background
- Fortune, convicted of first-degree burglary, attempted robbery, and felon-in-possession, appeals on multiple trial errors.
- December 2008 events: Fortune entered Bernard-Holland apartment with a gun, confronted Bernard, fought, and police recovered a gun.
- Felon-in-possession charge carried a maximum of ten years; bench trial conducted without a jury waiver.
- Verdicts: jury found Fortune guilty of lesser unarmed offenses; judge found felon-in-possession; later reversal on that count.
- Fortune challenges jury-poll, presence during bench voir dire, and sufficiency of attempted robbery evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of jury trial for felon-in-possession | Fortune did not waive jury trial as required. | Trial court should have secured a waiver; error prejudiced substantial rights. | Plain error established; structural error requiring reversal of felon-in-possession verdict. |
| Poll of jury for burglary and attempted robbery | Court should poll for both greater and lesser offenses if requested. | Fortune withdrew polling request; no error where not requested for attempted robbery. | No error; no polling required after withdrawal and no request for attempted robbery poll. |
| Presence during bench voir dire | Fortune was deprived of presence during bench voir dire. | Welch waiver applies; no on-record waiver required due to presence and non-request. | Waiver valid under Welch; no error requiring reversal. |
| Sufficiency of evidence for attempted robbery | Testimony supported all elements; credibility concerns go to weight, not sufficiency. | Credibility and corroboration issues undermine sufficiency. | Sufficient evidence supports attempted robbery; credibility questions for the jury. |
| Overall impact of trial errors | Multiple errors compromised fairness and integrity. | Most errors were non-structural or harmless; only the waiver issue was structural. | Felon-in-possession reversal affirmed; remaining convictions affirmed. |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (1993) (plain error test for appellate review)
- Davis v. United States, 984 A.2d 1255 (D.C. 2009) (plain error framework after Olano)
- Barrows v. United States, 15 A.3d 673 (D.C. 2011) (structural error considerations for jury trial waiver)
- Welch v. United States, 466 A.2d 829 (D.C. 1983) (waiver by voluntary acquiescence when not objected)
- Lay v. United States, 831 A.2d 1015 (D.C. 2003) (right to be present during voir dire and waiver implications)
- Hawkins v. United States, 385 A.2d 744 (D.C. 1978) (waiver procedures for jury trial in open court)
- Brown v. United States, 627 A.2d 499 (D.C. 1993) (jury trial rights and related procedures)
- Gordon v. United States, 829 F.2d 119 (D.C. Cir. 1987) (voir dire presence and waiver context)