Percy JORDAN, Appellant, v. UNITED STATES, Appellee.
No. 07-CF-340.
District of Columbia Court of Appeals.
Decided March 31, 2011.
703
Argued March 10, 2011.
Leslie Ann Gerardo, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, Elizabeth Trosman, John P. Mannarino, and Amanda Haines, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and OBERLY, Associate Judges, and FERREN, Senior Judge.
FERREN, Senior Judge:
Percy Jordan appeals his convictions for first-degree murder while armed/felony murder (with aggravating circumstances),1 second-degree murder while armed,2 robbery of a senior citizen,3 conspiracy to commit robbery,4 and five counts of credit card fraud.5 He argues that the trial court erred by (1) declining, in response to a note from the jury, to answer its question whether the word “cause” in the first-degree murder instruction meant “physically striking” the victim; (2) limiting cross-examination of the only eyewitness; (3) overruling the defense objection that the prosecutor‘s closing argument impermissibly shifted the burden of proof; and (4) denying the defense motion to strike appellant‘s “alias” from the indictment. None of these arguments has merit and thus we affirm appellant‘s convictions, subject to remand for amendment of the judgment and commitment order to account for merged offenses.7
I.
The charges against appellant grew out of the robbery and murder of David Rosenbaum. According to the government‘s evidence, on January 6, 2006, Rosenbaum left his house in Northwest D.C. to take a walk after dinner. At the time, appellant and his cousin, Michael Hamlin, were driving around nearby in Hamlin‘s car. As they were driving, appellant—who had with him a foot-long, hard, black plastic pipe—said, “Let‘s go get someone,” which Hamlin understood to mean rob someone. Hamlin parked the car on Gramercy Street at 38th Street, N.W. At that point they spotted Rosen
Hamlin and appellant then moved the car to the other side of the street. Appellant got out and ducked behind a tree along Rosenbaum‘s path. As Rosenbaum passed the tree, appellant jumped out and struck him in the head and waist with the pipe. Rosenbaum fell. Hamlin ran over and took the wallet from Rosenbaum‘s back pocket. The wallet contained $265 to $275 in cash, as well as credit cards, bank cards, a debit card, and a driver‘s license. Appellant and Hamlin then drove to an Exxon station on Connecticut Avenue, N.W., where Hamlin used a Rosenbaum credit card to fill up the gas tank while appellant went inside the convenience store to buy snacks. They later used Rosenbaum‘s credit card to purchase items at a CVS store and a Safeway, both in Southeast D.C. Rosenbaum died two days later on January 8, 2006. The physical strike to his head had caused a blood clot, which in turn caused his brain to swell.
The government established its case against appellant primarily through Michael Hamlin‘s testimony. Hamlin had turned himself in to the police shortly after the robbery upon learning that Rosenbaum had died from his injuries. During his initial interrogation, Hamlin told homicide detectives three false accounts of what had happened on January 6 before finally admitting his role in Rosenbaum‘s assault. Hamlin eventually pleaded guilty to second-degree murder, robbery, and conspiracy to commit robbery. As part of his plea agreement, Hamlin testified on behalf of the government and implicated appellant as the person who had physically struck Rosenbaum during the robbery.
In addition to Hamlin‘s testimony, a friend of appellant, John Snowden, testified for the government about a conversation he had had with appellant on January 11, 2006, five days after the incident. Snowden testified that appellant had told him that “if his cousin Mike say something he‘d be gone a long time.” Appellant went on to say “something about a credit card and a bank card,” and added that he and Hamlin had “caught a cracker sleeping,” which meant, according to Snowden, that they had caught a white person who did not know what was about to happen to him.
Appellant‘s defense theory was that Hamlin, not appellant, had attacked Rosenbaum, and that Hamlin was lying to avoid a longer prison sentence. The defense, therefore, focused on Hamlin‘s credibility. The only defense witness was Detective Edward Truesdale of the Metropolitan Police Department. Detective Truesdale testified that Hamlin had given changing versions of his involvement in Rosenbaum‘s death. Defense counsel tried to elicit that Truesdale had been the one who suggested to Hamlin that his cousin (appellant) had instigated the robbery. Although Hamlin, during cross-examination, had admitted that Detective Truesdale had suggested as much, the detective himself testified that he did not remember asking a question that would have suggested that Hamlin should implicate his cousin.
II.
Appellant contends that the trial court erred by refusing to answer a question from the jury during its deliberations. With respect to the principal charge, first-degree murder while armed/felony murder (with aggravating circumstances), the court instructed the jury with the elements of the offense, the first of which was the required finding that “the defendant caused the death of the decedent, David Rosenbaum.” The court added:
A person causes the death of another person if his actions are a substantial factor in bringing about death and if death is a reasonably foreseeable consequence of his actions. Death is reasonably foreseeable if it is something which should have been foreseen as being reasonably related to the defendant‘s actions.
On the second day of deliberations, the jury sent a note to the court asking two questions:
“Question Number One: Does cause as set forth in the first element of the first degree murder charge mean physically striking the victim? Question Number Two: Does the definition of causation on page 36 of the final instructions apply to both first and second degree murder?”
Defense counsel asked the court to answer “yes” to the first question because a physical striking was “the only evidence that‘s presented“; that is, the jury could not find that appellant had caused Rosenbaum‘s death in any way other than by striking him. The government argued, to the contrary, that the jurors might have a different line of thinking; they might believe that appellant had struck Rosenbaum, but that his doing so had not been “a substantial factor in bringing about his death.”8
The trial court declined to answer the jury‘s first question: “I think that‘s for the jury to determine. I‘m not going to set forth what facts they should find.” The court therefore responded to the jury: “With respect to the first question, the first element states that the defendant caused the death of the decedent David Rosenbaum. It is your duty to determine whether the defendant caused the death of David Rosenbaum.”9 The court, we believe, made a sustainable call.
“Decisions regarding reinstruction of a jury are committed to the discretion of the trial court; absent abuse of that discretion we will not reverse.”10 That said, we have emphasized that “when a jury sends a note indicating its confusion with the law governing its deliberations, the trial court must not allow that confusion to persist; it must respond appropriately.”11 On the other hand, the court “is not required to respond to every inquiry from the jury.”12 If the jury‘s question focuses not on what the law means but on how the law should be applied to the facts, the court should not answer beyond reference to the initial instruction, lest the answer invade the jury‘s province as factfinder and, as a result, coerce the verdict.13
Cox and Preacher do not govern this case. It may appear, initially, that the jurors were asking for nothing more than clarification of legal language (the meaning of “cause“). But whether they knew so or not, they were asking the judge—as he himself recognized—to do a job for them as fact-finder. The only evidence before the jury reflecting a “cause” of death was Rosenbaum‘s beating with a pipe. Had the judge answered “yes“—“cause” means “physically striking a victim“—the judge would have all but told the jury that if it were to find that appellant had struck Rosenbaum, then ipso facto he caused the man‘s death. Furthermore, in Cox and Preacher, the initial instructions did not define the legal terms the jurors inquired about, whereas the jurors here had received a comprehensive definition of “cause,” uncontested at trial. They could have had little, if any, doubt, therefore, that a “physical striking” was a “substantial factor” that could satisfy “cause” of death. On this record, the jury‘s note cannot reasonably be taken as evidence of meaningful jury confusion.
One may wonder how a “yes” answer would have helped appellant‘s cause if—as appellate counsel conceded at oral argument—the answer would have told the jury that, upon finding that appellant had struck Rosenbaum, he had caused Rosenbaum‘s death. In his reply brief, appellant argues that by refusing to answer “yes” in response to the jury‘s question, “the trial court allowed the jury to return a verdict of guilty on the murder charges on a finding that appellant did something other than striking Rosenbaum, such as by merely being present at the scene.” At oral argument counsel added that, by answering a simple “yes” to the jury‘s second question,20 the court implied that the unstated answer to the first question was “no,” suggesting that some other cause of death could be found. That understanding was reinforced, he said, by Hamlin‘s plea agreement, which could have caused the jury to believe that he, as an admitted liar, had been the one who struck Rosenbaum. Accordingly, stresses counsel, absent a trial court answer that a physical strike was essential to establish guilt, conviction might have rested on appellant‘s mere association with Hamlin in the assault.
Convincing as appellant‘s argument may seem, his associational theory is grounded on a misguided premise; the jury did not receive an instruction permitting conviction for aiding and abetting—for merely associating with the confederate who struck the decedent.21 The government relied exclusively on its charge and evidence that appellant was the principal, the person who struck Rosenbaum. The jurors are presumed to follow the trial court‘s instructions22 and thus had no basis for convicting on the alternative theory that counsel speculates they might have applied. Therefore, even if the jury‘s question could be understood to indicate that one or more jurors might have been wondering about an alternate legal theory for finding guilt or innocence, they were not given one to consider. They were bound, accordingly, to use their best judgment in light of the instruction on causation that called upon them to determine whether appellant‘s actions—as evidenced primarily by Hamlin‘s testimony that appellant had struck Rosenbaum—were a “substantial factor” in bringing about his death. They presumably did so, apparently believing Hamlin despite the evidence of his dissembling.
III.
Jordan argues next that the trial court erred by overly restricting his cross-examination of Michael Hamlin. First, counsel was not permitted to question Hamlin about a statement he had given in an earlier, unrelated prosecution in Maryland—a statement similar to one of the false statements he gave to the police in this case.27 Second, counsel was not permitted to read into evidence a statement to Hamlin by a police detective during Hamlin‘s interrogation.
A.
As to the first, defense counsel moved in limine for a ruling that would permit him to cross-examine Hamlin about the Maryland testimony, which he had given pursuant to a plea agreement. In Maryland, he testified that he had been driving in a car with his co-defendant; that the co-defendant had left the car to urinate; and that the co-defendant had then robbed someone. One of Hamlin‘s statements to the police in the present case, which he soon admitted was false, was nearly identical to the Maryland testimony. The trial court rejected the proposed cross-examination, however, on the ground that it would confuse the jury because it involved an unrelated case.27
A defendant‘s Sixth Amendment right to confront adverse witnesses necessarily includes the right to cross-examine.28 The trial court, however, retains discretion to impose reasonable limits, and the Sixth Amendment will be violated only when the court precludes a “meaningful degree of cross-examination.”29 A trial court, for example, “may always limit cross-examination to preclude repetitive and unduly harassing interrogations or to prevent inquiry into matters having little relevance or probative value to the issues raised at trial.”30
That said, appellant had significant opportunity to cross-examine, and confirm without question, that Hamlin was a liar. Beginning with Hamlin‘s direct examination, the government itself elicited his admission that, at the outset of his interrogation, he had lied to the police by giving three false versions of the robbery, including the urination feature. Defense counsel freely cross-examined him on his prevarication. Hamlin‘s credibility was further tainted by admission in evidence of his Maryland conviction, “accessory after the fact to robbery,” pursuant to a plea agreement for which he received a year‘s probation.31 In addition, Hamlin acknowledged during direct and cross-examination that in Maryland he had received a substantially reduced sentence because of his testimony; that he was testifying in this case pursuant to a plea agreement; that in return for his cooperation the government had agreed to drop some of the charges against him; and that he pleaded guilty, accordingly, to second-degree murder, conspiracy, and robbery. This testimony had a bearing, primarily, on possible bias, but in doing so it also had an impact that diminished Hamlin‘s credibility. Without regard to the specifics of Hamlin‘s Maryland testimony, therefore, the jury “was afforded not merely ‘sufficient’ information to make an appraisal of [Hamlin‘s] testimony [in this case], but an extraordinarily complete and substantive basis for evaluating” his credibility.32
Finally, while perhaps adding a small measure of doubt about Hamlin‘s credibility, his Maryland testimony—as the trial court perceived it—not only might have confused the jury as to its relevance but also, of greater significance, would likely have justified the government‘s seeking admission of additional evidence about the Maryland trial that, in the end, could well
B.
The second challenged restriction on cross-examination occurred during trial when counsel attempted to question Hamlin about a statement allegedly made to him by Detective Truesdale during Hamlin‘s interrogation. According to Hamlin, before he told the police what had happened during the robbery of Rosenbaum, Detective Truesdale had said to him that appellant had put him in a “fucked up” position by “pulling a stunt.” Appellant wanted to introduce these statements in the hope of eliciting from Hamlin an admission that he had developed his story of what happened in this case based on what the detective had said to him. The trial court advised defense counsel that he could ask Hamlin about the statements but could not quote them.
After that ruling, counsel cross-examined Hamlin, as permitted, and elicited an affirmative response when he asked Hamlin whether the detective had “suggested” what had happened.34 We find no abuse of discretion here. Counsel was permitted to ask Hamlin whether the detective‘s statements had influenced his story, and Hamlin answered that they had. That, as the government points out, was “the very point he sought to establish.” Admission of the statements the officer made would have added colorful flavor, but they were not at all necessary to achievement of counsel‘s purpose.35
During closing argument, the prosecutor referred to surveillance photographs from a gas station in the area where Rosenbaum was attacked. They were taken shortly after the robbery and showed appellant going into the station. The prosecutor asked the jury, “So, what‘s the explanation? What‘s he doing there?” Defense counsel immediately objected, was overruled, and, after the argument, moved for a mistrial contending that the comment improperly shifted the burden of proof. The trial court denied the mistrial, ruling that the comment was not “in any way prejudicial or contrary to the law.”
On appeal, the argument is more specific. The prosecutor, says appellant, shifted the burden of proof to the defense because the challenged comments to the jury were, in effect, comments on appellant‘s failure to testify at trial, in violation of his Fifth Amendment privilege against self-incrimination.36 We have stressed that a prosecutor may not make a comment that is “manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.”37 No impropriety occurs, however, when a prosecutor merely emphasizes that the government‘s evidence is uncontradicted.38 Moreover, in assessing the propriety of the comments in question, we view them in the context of the prosecutor‘s argument.39
The prosecutor cannot be faulted here. We agree with the government that the prosecutor merely asked rhetorical questions that did not “naturally lead the jury to focus on defendant‘s silence.”40 Rather, as she explained to the jury, they were meant to highlight that “there is only one explanation that makes sense.” In context, therefore, these comments did not shift the burden of proof by highlighting the defendant‘s failure to testify. Thus, no error occurred in the trial court‘s refusal to grant a mistrial.
V.
Finally, appellant argues that the trial court erred by failing to strike his nickname, “Master P,” from the indictment. A trial court may strike surplusage from the indictment on motion of the defendant,41 and its ruling is reviewable for abuse of discretion.42 “A motion to strike surplusage should be granted only if it is clear that the surplusage is (1) not relevant to the charges; (2) inflammatory; and (3) prejudicial.”43
This court generally disfavors the inclusion of an alias in the indictment, unless the alias is needed for identification of the defendant, which is not the case here.44 We cannot say, however, that inclusion of appellant‘s nickname was inflammatory and prejudicial. The prosecutor referred to the nickname in passing during opening statement, and one witness testified that he knew appellant as “Master P.” That was all. The trial record, therefore, does not support an argument that the government “took unfair advantage” of appellant‘s use of an alias.45 Nor does the record show that the alias gave Jordan a “veneer of arrogance,” as he suggests in his brief. No error occurred, therefore, in the trial court‘s refusal to strike the alias from the indictment.
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For the foregoing reasons we affirm appellant‘s convictions, remanding for amendment of the judgment and commitment order to account for merged offenses.46
So ordered.
FERREN, Senior Judge, concurring:
I concur fully in the opinion of the court but wish to add this postscript. The trial judge‘s discretion as to reinstruction1 signifies the right and responsibility to choose from “within the range of permissible alternatives.”2 In the present case, the judge had to evaluate (1) whether there was a reasonable possibility that his failure to answer “yes” (without more) to the first question might lead the jury to convict appellant by misapplying the law (most likely by using an accomplice liability theory); and, on the other hand, (2) whether answering the question would coerce the verdict because, as counsel conceded on appeal, a “yes” answer would tell the jury that, upon finding that appellant had struck David Rosenbaum—the only theory and direct evidence in this case—he had caused Rosenbaum‘s death.
These two alternatives reveal the tension between the line of cases requiring trial judges to reinstruct when the jury is likely to misapply the law,3 and case law warning judges against reinstruction that would apply law to the facts and thereby put the judge in the jury box.4 For the sake of argument, I am willing to assume that, had the trial judge answered “yes” to the jury‘s first question, he would have acted “within the range of permissible alternatives“,5 in order to ward off improper jury speculation about accomplice liability (or even about an intervening cause of death during the two days that David Rosenbaum was lingering at the hospital). But, for the reasons stated in this court‘s opinion, I am more than satisfied that the trial judge acted within his proper range of discretion by electing the second alternative, declining to answer the jurors’ question, and redirecting them to the initial instruction on “cause.”
Although it may have been possible, defense counsel did not suggest a way for the judge to point out that no evidence had