Dаrius BROWN and Jamal Shepherd, Appellants, v. UNITED STATES, Appellee.
Nos. 11-CF-1503, 11-CF-1507.
District of Columbia Court of Appeals.
April 17, 2014
Argued Dec. 5, 2013.
98 A.3d 98
Richard S. Stolker, Rockville, MD, for appellant Jamal Shepherd.
John P. Gidez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Ephraim Wernick, Assistant United States Attorneys, were on the brief, for appellee.
FISHER, Associate Judge:
Following a jury trial, аppellants Jamal Shepherd and Darius Brown were convicted of several offenses related to a shooting and the subsequent police investigation. Shepherd now challenges the sufficiency of the evidence supporting his convictions for obstruction of justice and carrying a pistol without a license (“CPWL“).1 Brown challenges the sufficiency of the evidence supporting all four of his convictions: perjury, conspiracy to obstruct justice, аnd two counts of obstruction of justice. Rejecting these claims and various others that appellants raise, we affirm.
I. Factual Background
During the afternoon of February 9, 2010, Jamal Brooks got into a heated argument with his neighbor, Raymond Washington. Later that evening, Brooks brought three of his friends (including both appellants) to the house where Washington was staying. Brooks, who was carrying a revolver in his back pocket, then resumed his argument with Washington. Brooks‘s three friends joined the bickering and, after about fifteen minutes, appellant Shepherd suddenly grabbed Brooks‘s gun and shot Washington in the head and arm. Although Washington survived, the bullet to his head destroyed his right eye.
In the investigation that followed, the police had considerable difficulty identifying the shooter. They initially arrested Brooks, who admitted that he and appellant Brown had witnessed the shooting. Brooks made it clear that someone else had been the shooter, but he denied knowing who the shooter was. Consequently, detectives turned the focus of their investigation to Brown.
Detectives interviewed Brown for the first time on April 14, 2010. At that time, according to evidence presented at trial, Brown knew that Brooks had been arrested and was being held in jail.2 Brown gave detectives a detailed physical description of the shooter, but he denied (as Brooks had) knowing the shooter‘s name. Brown told detectives he had only seen the shooter on two occasions prior to the night of the shooting.
The next day, Brown testified before a grand jury that was investigating the shooting. As part of his testimony, Brown provided his account of the shooting and again gave a detailed physical description of the shooter. The prosecutor asked Brown if he had ever seen the shooter before, and Brown responded, “Only on, like, two other occasions before that.” The prosecutor followed up by asking, “Did you know his name?” Brown answered, “No. I only—likе, [Brooks] introduced me to him but, like, introduced me by nickname, and I don‘t really recall it.” The prosecutor then asked, “So you don‘t know what his name is, or any nickname?” Brown replied, “I think [Brooks] was calling him, like, Moe.”
By the end of Brown‘s grand jury testimony, detectives still did not know the
II. Analysis
We first consider appellants’ claims of insufficient evidence, reviewing the record “in the light most favorable to the government.” Campos-Alvarez v. United States, 16 A.3d 954, 964 (D.C. 2011) (quoting Moore v. United States, 927 A.2d 1040, 1049 (D.C. 2007)). We then address appellants’ various other arguments.
A. Brown‘s Perjury and Obstruction of Justice
Brown first chаllenges his conviction for perjury, which was based on statements he made to the grand jury while under oath. See
At trial, the government introduced a recorded phone call in which Brown actually admitted to a friend that he had committed perjury and obstructed justice by lying to the police and to the grand jury.4 Such an admission is not sufficient by itself to sustain a perjury conviction, but it does powerfully corroborate the government‘s independent evidence. Id. at 1196. Moreover, “the ‘two-witness’ label is really a misnomer,” as the rule may be satisfied with circumstantial evidence. Murphy v. United States, 670 A.2d 1361, 1365 (D.C. 1996); Boney v. United States, 396 A.2d 984, 986 n. 2 (D.C. 1979). Rather than dictating how the government must prove its case, the “two-witness” rule essentially requires corroboration—an “evidentiary minimum” of proof. Gaffney, 980 A.2d at 1194.
In this case, the leаd detective testified about phone records that indicated Brown and Shepherd had likely spoken on the phone close to 1,500 times in the fifteen months after the shooting. Such a high
Separately, Brooks testified that at the time of the shooting, he had known Shepherd for about ten years and considered him a friend. Other evidence showed that Shepherd and Brooks saw each other regularly.6 Brooks further testified that Brown had been “like family” to him for his “whole life.” Taken as a whole, this evidence naturally supports an inference that Brown at least knew who Shepherd was on the night of the shooting.
It is possible, strictly speaking, that the friendship between Brown and Shepherd formed after the shooting, that a flurry of 1,500 phone calls immediately ensued, and that Brown had previously managed to be “like family” to Brooks without ever learning Shepherd‘s name or sеeing him more than twice in ten years. However, the government‘s evidence need not “negate every possible inference of innocence.” Campos-Alvarez, 16 A.3d at 964. Here, the abundant circumstantial evidence (much of it consisting of phone records or recorded calls from the jail) and Brown‘s recorded admission satisfied the “evidentiary minimum” required by our perjury cases. See Smith v. United States, 68 A.3d 729, 741-42 (D.C. 2013) (perjury conviction upheld based mainly on circumstantial evidence, including phone records and recorded jail call).
Brown‘s untruthful statements to the grand jury also supported one of his convictions for obstruction of justice under
Brown‘s other obstruction of justice conviction under
Brown contends, however, that his untruthful statements to detectives cannot constitute obstruction of justice because they were not made “in any official proceeding.”
In sum, the government presented sufficient evidence to sustain Brown‘s conviction for perjury as well as both of his convictions for obstruction of justice.
B. Conspiracy to Obstruct Justice
Next, Brown challenges the sufficiency of the evidence supporting his conviction for conspiracy to obstruct justice under
In a recorded phone call that the government entered into evidence, Brown expressed frustration that Brooks “went in there and told the truth” to the police. Later, in another recorded call presented to the jury, Brown told Shepherd that he (Brown) had recently confronted Brooks over the phone about being “the motherfuckin’ witness in that situation.” When Shepherd said that Brown should go see Brooks in person, Brown replied, “What you want me to holler at him about? Tell his ass to do the right thing? I was tellin’ his ass that on the phone!” At the end of the call, Shepherd said, “We got to get at Slim, man,” which was a reference to Brooks. Brown responded, “Yeah.”7
This evidence is sufficient to sustain Brown‘s conviction for conspiracy to obstruct justice. The phone calls noted above underscore Brown‘s strong disapproval of Brooks telling the truth to the police. Further, the calls attest to an understanding between Shepherd and Brown that they needed to do something to stop Brooks‘s continued cooperation with authorities. Thus, Brown demonstrated his specific intent to оbstruct justice when he plainly stated that he had told Brooks to
C. Shepherd‘s Obstruction of Justice and CPWL
Shepherd‘s obstruction of justice conviction under
Shepherd nevertheless argues that his instruction “to keep the code” was not given “corruptly, or by threats of force,” and therefore cannot fit within the scope of
As to the record, Brooks testified that his initial hesitation to implicate Shepherd in the shooting stemmed from an awareness that “snitches get stitches.” When asked what that meant, Brooks explained that “if you snitch on someone you could die” or “get hurt.” And, as noted, Brooks understood Shepherd‘s instruction “to keep the code” as a reference to the “[c]ode of not snitching.” This belies Shepherd‘s suggestion that his instruction to Brooks drew only “on the parties’ long term friendship, not [on] force or threat of force.”
However, even assuming—for the sake of argument—that Shepherd issued no implicit threat and merely “encouraged his friend to remain silent,” such encouragement would still have violated
This court has already given the term “corruptly” a similar construction. In Riley v. United States, we held that it “is obstruction of justice ... to induce or attempt to induce a witness to absent himself ... and therefore not to give any
Shepherd also challenges the sufficiency of the evidence supporting his CPWL conviction under
D. Other Claims
Shepherd appeals the trial court‘s denial of his motion to suppress two identifications that witnesses made from a nine-person photo array. Detectives showed this array to a woman who had witnessed the shooting but did not know Shepherd personally, and she immediately identified Shepherd as the shooter. Detectives also showed the array to Brooks, who likewise identified Shepherd correctly. Shepherd argues the array was “unduly suggestive” because of “significant variances in skin shading, hairlines and overall appearance” among the men pictured. He further argues that the length and style of his facial hаir is “significantly different” from that of several others in the array. Shepherd also takes issue with the fact that although the other eight men in the array were each thirty-two years old at the time their photos were taken, he was only twenty-six.
The trial court considered and rejected all of these arguments, concluding that the photo array was not unduly suggestive. The array is in the record before us, and—having reviewed it—we see no reason to disturb the trial court‘s determinаtion, which is “supported by the evidence and in accordance with the law.” Jones v. United States, 879 A.2d 970, 975 (D.C. 2005) (quoting Black v. United States, 755 A.2d 1005, 1008 (D.C. 2000)).10 Shepherd‘s argument
Shepherd also appeals the trial court‘s denial of his motion to exclude two graphic photographs taken of Washington at the hospital after the shooting. Although Shepherd has not made these photos part of the record on appeal, he argues they “were far more prejudicial than relevant” and were admitted for the “sole purpose” of inflaming “the jury‘s passions.” However, the severity of Washington‘s injury was directly relevant to the charges of mayhem while armed and assault with intent to kill while armed.11 “Reversal is warranted only upon a showing of an abuse of [the trial court‘s] discretion,” and here, the photographs at issue were “corroborativе of other evidence” proving the severity of Washington‘s injury. Pittman v. United States, 375 A.2d 16, 19 (D.C. 1977). On this point, the government was not “required to sanitize [its] evidence.” Dixon v. United States, 565 A.2d 72, 76 (D.C. 1989). The trial court did not abuse its discretion in admitting the photos.12
Finally, Brown claims it was plain error for the trial judge to not correct, sua sponte, a misstatement the prosecutor made during the rebuttal segment of his closing argument. The prosecutor inaccurately argued that “there were thousands of hours of phone calls” between Shepherd and Brоwn. Acknowledging that the jurors had not heard all of the recorded phone calls available, the prosecutor stated: “You‘re hearing some of them. That‘s true. But all of us [apparently referring to all counsel] heard them. In these ... stipulations, you‘ll see, they said they were jointly approved. Okay? There‘s no reason to believe there‘s anything exonerating in [the other calls].”
Given the evidence that there had been approximately 1,500 calls between Shepherd and Brown, the prosecutor perhaps confused the number of relevant calls with the number of hours spent on those calls. In any event, because defense counsel did not object to the prosecutor‘s remarks, we may only reverse for plain error. See United States v. Young, 470 U.S. 1, 16 (1985) (when reviewed under plain error standard, inappropriate statements by prosecutor “were not such as to undermine the fundamental fairness of the trial and cоntribute to a miscarriage of justice“). No plain error occurred here, as the government‘s evidence against Brown was overwhelming.
The judgments of the Superior Court are hereby
Affirmed.