*1 TANN, Cooper, An D. Lannell Michael Rushing, Arnette, Sa James
tonio Beaver, Harris, Dajuan D.
quawn
Appellants, STATES, Appellee.
UNITED 10-CF-54, 09-CF-1438, 09-CF-
Nos. 09-CF-1450, 10-CF-55, 09-CF- 09-CF-1482, 09-CF-1483, 10-CF- Appeals.
District of Columbia Court 25, 2014.
Argued March 19, 2015. Nov.
Decided *15 Lovelace, appellant Tann. A.
Judith DC, Heslep, Washington, Thomas T. appellant Cooper. *16 Pérsico, Ar- appellant for
Deborah A. nette. DC, Kiersh, for Washington, R.
Steven appellant Rushing. Kemmitt,
Christopher Public Defender Klein, Service, Public with whom James brief, Service, on the for Defender appellant Harris. Riddell, Bea- appellant
Stephen W. ver. Gabriel, Assistant United
Elizabeth C. Attorney, with whom Ronald States Jr., Attorney conspiracy string crimes, at the and a Machen States violent filed, homicides, and Elizabeth including time the brief was that were committed Trosman, Mannarino, Bach, membership P. Laura their John connection with Giovanelli, gang Assistant United and John known the 22nd Street Crew. brief, Attorneys, They raise challenges States were numerous to their convictions in appellee. appeals. consolidated these however, exceptions, few With we affirm GLICKMAN, BLACKBURNE- Before judgments Superior of the Court. RIGSBY, THOMPSON, Associate In view of length opinion, Judges. commencing before our discussion PER CURIAM: claims, proceedings appellants’ below and trial, After a nine-month the six we set forth following table contents in this as an appellants case convicted aid the reader.
IIS that sat between Southern Avenue government presented
The evidence at Street Street, influencing ar- showing appellants’ trial there was Savannah gang’s operations. in the area around the base gang operating criminal street eas Southeast, cen- Street, goals organization Washington, of 22nd storage, packaging, purchase, on the investigation gang D.C. The of this re- tered illegal drugs within violent, organiza- profit, drug-trafficking vealed a and resale community. functioning tion the blocks of 22nd *18 gang committing of committed numer- serious acts of part Members as violence protect criminal in an participation ous acts of their in effort 22nd Street gang integrity of of territory its Specifically, and Crew. indictment articu- .the This took the form operations. misconduct appellant lated each into entered a designed safeguard of of acts violence conspiracy to “knowingly willfully and .... Often, organization. the violence was agree together justice to obstruct and perceived might directed at rivals who anyone assault kill whose interests gang’s territory drug threaten the contrary [appellants] to those of or might trade witnesses who undermine joint their associates.” In a nine-month operations through cooperation its appellants trial of from November law enforcement. July also endeavored to show that four commit- murders were names, gang
The in- was called various ted, part charged conspiracy, at Crew,” cluding the “22nd Street “The or near 22nd Street between 2003 and Deuce,” “Deuce-Deuce,” “Shipley Mar- 2006. The government contended ket,” Gunz,” “Young Squad and “Deuce these murders main- were directed toward Mafia.” For simplicity, it will be referred authority turf taining the the 22nd opinion to in this as the “22nd Street either, Crew, eliminating per- Street Crew.” The 22nd had a loose Street Crew ceived rivals or killing government wit- rank structure wherein would members Each in appellant nesses. involved was according to play different roles the level murders; appellant least one these authority respect they gained had Tann alleged played to have role in loyal- over through time demonstrations three four. The essential facts ty gang. to the Members that had major briefly each incident are recited respect achieved sufficient level of would here. “original gang- be referred to or as “OGs” junior
sters.” More members were la- I. The Leslie Jones Murder “baby gangsters” beled Iocs.” “little .drug Leslie Jones was dealer who sold government’s tended to Street, product near specifically 22nd ap- demonstrate the of all six involvement Shipley Market area. He had pellants the 22nd Street Crew. Lannell long-running feud with Tann that revolved Cooper part had been 22nd Street competition for drug around sales and a since Crew the 1990s un- achieved prior incident in of his which one relatives authority gang. matched level within the weapon. assaulted stolen his Tann part gang Michael Tann for a similar period behind Coo- and. was close evening On April Tann per in Da- hierarchy. Rushing, James party attended a with his small future wife Beaver, juan and Antonio Arnette carried Southeast, Tracey at his cousin’s house however, weight less organization; Washington, during At point D.C. some showing evidence was presented their evening, Tracey told that he was Tann long-standing 22nd involvement Street, going party. 22nd and left the Saquawn Street Crew and operation, its Tann, phone pay Leslie at a Jones found member, having Harris awas newer been from Shipley near Market and shot him high-ranking gang introduced another behind. 22nd Street Al- Crew member member. phonce eyewitness Little was an witness, Tyrone Curry, charged
The indictment in this case Another murder. appellants gunfire running six with conspiracy and with heard the and saw Tann *19 pro- Arnette niggers’ pockets.” them Tánn “Pat of the crimé. from the scene away pockets pat to Terrence Jones’s ceeded Tracey, and another to confessed later face. Witnesses stated and hit him in the named Donald Crew member 22nd Street resisted point at Terrence Jones some Matthews, committed the mur- he had Cooper him in by hitting Cooper, and shot der. to Jones tried response. When Terrence shot him and away, Cooper again. Murder crawl II. The Terrence Jones Queen Assault Richard ap- testified that Witnesses further time as Terrence proximately the same April on of Terrence Jones The murder attack, Tann appellant Jones was under argument an 22nd began'with males appeared, other unidentified Donald Mat and gang member between Street car, Queen against a resident, Kyara pinned Richard and a 22nd Street thews his beating going through him and began li Johnson, type about apparently Matthews, According to' Donald Kyara’s pockets. served at quor that was ground in the up gun Tann off the quarrel picked birthday party. The verbal shot him fight Queen with it midst violent before was threatened become away, sister, he to run the back as tried by Kyara’s Arm up broken Shaunta enough to badly but not wounding Queen close friend strong. Shaunta called her later, days escape. his prevent Several him come to Terrence Jones and asked shot Matthews that he had situation Tann told make sure that 22nd Street to trial, Queen. Queen At testified that his Jones went was control. Terrence under friend, cigars Richard assailants had stolen cash 22nd Street with carrying night. was approached Mat he Queen. Terrence Jones and had a brief conversation thews Taylor and Ber- III. Murder James “just explained that he him. Matthews Mackey nard Assault argument Kyara] but [with had an nothing.” reported wasn’t Witnesses A third murder occurred 22nd Street peacefully and later,- their interaction ended years early a little over two without incident. evening Again, the events May This precipitated by argument. Johnson, According Kyara appellant disagreement Omar time it was between exchange of the between Arnette learned Tyndle during Ashley Harrison which Terrence Jones and Donald Matthews and Tyndle. may struck Harri- Harrison [referring appellant Coo- yelled, “Doe” Street, and son was an to 22nd outsider Kyara Cooper respond, ‘Where per] heard gang Tyndle girlfriend member Armstrong at?” then heard Shaunta Alphonce Little. (believed ask, Cooper) to be someone nickname], climaxed,' dispute As the Harrison made “Squirt [appellant Arnette’s his lack of of Little faking?” Arnette nodded the di- reference to fear who’s “go get your baby[’s] telling Tyndle Richard rection of Terrence Jones and At up to that Queen Cooper go told the street father” words effect. “hammer,” argument between Harrison with his which was the street time of the 22nd gun. Cooper approached Tyndle, for a Ter- various members name dispersed in different pointed gun at him Crew were rence Jones and Street Street; witness testi- places with his on 22nd one while Arnette hit-Terrence Jones Then, crew,” including appel- according to several wit- fied that one “little hands. Harris, nesses, Tann as well as Little Cooper said words to the effect lants members, gang other house. Little and several testified that Foreman told *20 court. gathered a basketball When Harris near and Little that he he believed had Harrison-Tyndle dispute, word of the and fired the -shot that killed James Taylor. Little, challenge spread by- to Harrison’s There was no to show that either Little, Harris, gang, to-the word mouth Tann, although Harris or aware of each Tann, gang and members raced to- other shooting role in the otherls and the pres- Harrison from directions on ward different gang ence of other members during the 22nd event, Street. knew of in Foreman’s involvement Following incident, the murder. Har-
Then, multiple Harris witnesses saw. and ris fled the area in disguise and lived for open at Tann fire Omar Harrison. Seven weeks several until his arrest: they witnesses testified that Harris saw shooting. Four witnesses saw Tann shoot- Laquanda IV. Johnson Murder
ing. One testified between witness and . Keisha Frost Assault gang shooting and ten were members five although with Tann en masse and Harris for Notábly purposes this appeal, ap- testimony conflicting. was Two wit- pellant Cooper was tried for and convicted seeing to gang nesses testified member the-murder Terrence Jones 2006. Blaylock during a gun Antonio with drawn At the time of the instant 2008-2009 trial According the incident. to another wit- appellants case, in this Cooper was ness, people” “a lot of addition Tann serving lengthy prison sentence shooting. were and Harris Cooper’s trial, crime. At govern- Little, Alphonce firing who ment Kyara denied listed Johnson and her older sister, Johnson, weapon, immediately Laquanda stated potential' after wit- ended, gunfire first waves of he 'Kyara heard- nesses. testified about Cooper’s separate gunshots coming set of from an- shooting of following Terrence Jones her argument other location the street.” “across Laquanda These with Matthews. was Foreman, by shots fired were who eyewitness not an Terrence Jones Robert junior Little was a very testified member murder; however, Cooper had made sev- of the 22nd Street Crew. saw Foreman eral incriminating statements to her in the firing and heard Tann Harris at Har- . and aftermath of that -Ultimately, incident. rison, attack, compelled join felt in the Laquanda trial, testify did at the 2006 .not shooting as well. started at but she could be seen the courthouse - during supporting the trial her La- sister. started,- firing Once Omar Harrison quanda protective younger of’her sis- away his truck jumped into and drove reputation ter and known abe However, safely. Taylor, James a 22nd “gatekeeper” seeking those access to .for standing Street resident who had been Kyara. truck, near Harrison’s was hit bullet ’ Mackey, head died. Bernard Cooper was convicted at the end June bystander, another innocent was also later, Approximately two weeks standing nearby grazed by and was a bul- 11, 2006, early morning July
let the back. (who sisters been relocated from 22nd trial) because of Alphonce Cooper’s ran Har- Street returned appellant Little with girlfriend Appellant ris to the house Harris’s 22nd Street visit friends. Alphonce him Beaver told pack bags preparation watched his saw the sisters and go hiding. they into Little that back. investi- Robert Foreman found were Little their, Harris at girlfriend’s gated presence and Little Harris’s -confirmed that Laquanda Bolling, the mother out a 22nd Karen hanging sisters Johnson, Frost, Laquanda Kyara testified while house with Keisha Street street, on the he Cooper was.still appellant met Beaver Little Mend. Johnson’s her Laquanda offered approached another 22nd Street Dwayne Wright, keep Kyara money if would drugs and she discussed member. The three men Grew during his 2006 trial off the stand they- “got agreed that the sisters and Terrence'Jones; murder they should be killed— go” meaning — gov- cooperation-with their because of arrest, Cooper out over sent After *21 further Little dis- Beaver and ernment. prison to' individuals tures from numerous to going of- was do them cussed which one persuade (by them- in to have an effort Beaver, arguing he had killing. necessary) Johnson sisters and force if already duty gang his testi- done testify against-him. Cooper others to trial, Cooper’s his fying in defense to allied street reached out members an obligation persuaded that he had Little Street, including gang on Brian Gil 17th Wright sisters. to eliminate the Johnson have them Tyrel Hargraves, liam and to Little, gave Beaver gun and retrieved Gang Kyara. mem 22nd Street search partial sunglasses pair Little a a. ally Dewey Honesty gang and ber Travis . completed disguise. Preparations were Cooper, from also testified Chappell from Rob- “hoodie” when Little secured (including jail, them instructed and others .Foreman, escape from route ert and an Beaver, Tann, Harris, Rushing, appellants Rushing, agreed to drive appellant who. Little) to gang Alphonce find and member from, away the scene of Little and Beaver Boll- points. Karen the sisters at various shooting. the anticipated Cooper was ing testified that-after also arrested, Laquanda her not to let implored house Alphonce up walked Little Cooper, explaining Kyara testify against the Johnson sisters. where he had seen [Cooper]” and that Tann had “talked inside, Laquanda but Kyara Johnson was “[Cooper] to know was [La- wanted Lit- porch on with Keisha Frost. letting quanda] going help him women, shot both opened tle fire be- and testify.” her sister hoving was Kyara. Laquanda that Keisha died, Kyara, looking out but Keisha lived. other witnesses after approached Tann window, upstairs of an witnessed the Taylor-Bernard Mackey inci- James away from the shooting. Little -ran scene Anderson, Zartia dent. threatened He Avenue. toward 23rd Street and Southern Taylor to'the sister James witnesses in Rushing collected Little and Beaver murder, going to stated that he was and get rid of the car and Little to instructed co- “straighten things regarding-their out” gang mem- Beaver directed .hoodie. Tann also operation government. with the Maryland bers to his mother’s house Harris, James confronted Donnise another Dwayne Wright gun where he hid witness, Taylor urged her to murder given the murder. Little commit (no falsely appellant Harris testify Harris) to Donnise had not relation been In- Obstruction Y. Justice —Witness involved incident. Manipulation timidation Developments Procedural VI. incidents, In sev- the aftermath of these members, crimi- grand jury investigating A these appellants, gang other eral of 22nd Street .prevent nal activities in the area approached witnesses efforts original down its indictment cooperation their law enforcement. handed with grand jury first-degree premeditated A fol- was September 2007. second convicted superseding Laquanda while armed of lowed with indictment murder Johnson February superseding The indict- conspiracy ADW Keisha Frost on a conspiring charged appellants ment theory of -liability pursuant to Pinkerton v. and kill justice “to assault obstruct 328 U.S. 66 S.Ct. anyone contrary interests were whose (1946). 90 L.Ed. He was also con associates,” [appellants] and their those jus victed two counts of obstruction of to that and numerous crimes related over- tice Johnson related sisters and inclúding all conspiracy, involvement several weapons Rushing offenses. four described above.' murders first-degree premeditated convicted of against all six general returned verdicts Johnson, Laquanda murder while armed of finding guilty each appellants, conspira- Frost, ADW of Keisha obstruction addition, cy.1 appellant' each was c'on- justice weapons offenses related-'to counts, multiple other as follows: victéd shooting. con Finally;' Amette was first-degree second-degree victed of Tanri was convicted 'murder while pre- *22 Jones, robbery murder while armed2 of armed of meditated both Terrence armed Taylor, James Queen, Leslie Jones and second- weapons offenses of..Richard degree while armed'3 of murder Terrence related that incident. Jones, robbery4 and assault armed ' Appellants appeals. followed with these (“AWIKWA”) to kill while armed5 intent In our discussion their manifold claims Queen, Richard AWIKWA Bernard error, analyze we first the claims relat- Mackey; jus- two counts of obstruction of ing to sufficiency government’s tice,6 threatening person,7 a one count- Next, procedural evidence. we deal with weapons a and host of offenses8 related evidentiary by issues the al- affected Harris underlying these crimes. was con- leged conspiracy from' flowing áppel- first-degree premeditated victed of murder Then, joint pre- lants’ address trial. we Taylor,
while armed of James AWIKWA . trial not directly trial and matters tied into Mackey, of Bernard several related and. or conspiracy appellants’ joinder. We weapons offenses. Beaver was convicted merger analysis with our in- conclude first-degree while premeditated murder upon structions to trial court remand. Johnson, of Laquanda armed assault with (“ADW”) dangerous weapon9 a of Keisha Concerning Sufficien- Claims VII. Frost, of justice, carrying and obstruction cy of Evidence license,, pistol posses- a without a unlawful sion of a with that firearm connection Conspiracy A. also of an He was convicted addi- event. Appellants argue that the evidence justice
tional count of obstruction of relat- membership in prior failed to establish their attempts ed influence the single testimony Cooper conspiracy charged supersed- of the Johnson sisters. (2012 (2012 § Repl.). Repl.). § 1. 6. D.C.Code 22-722 D.C.Code 22-1805a 22-2101, (2012 Repl.). §§ -4502 D.C.Code (2012 Repl.). § 7. D.C.Code 22-1810 22-2103, (2012 Repl.). §§ -4502 3. D.C.Code 22-4504(a), (b) (20.12 Repl). § 8. D.C.Code 22-2801, (2012 Repl.). §§ -4502 4. D.C.Code . (2012 Repl.) § 9. D.C.Code 22-402 22-401, (2012 Repl,).. §§ 5. D.C.Code -4502 omitted). contend, Instead,- they quotation marks alterations ing indictment.10 best, established, membership circumstantial merely Gang may be the evidence con only several and discrete of con- probative short-term the offense in fail spiracies, judge and the trial erred (citing spiracy. Id. Perez United judgment of ing grant (D.C.2009)). their motions for States, 968 A.2d 82-83 ' (“MJOA”) acquittal conspiracy to the “In the evi whether determining count. /‘The .which we review standard finding single of a con supports a dence novo, we, like a denial of a MJOA is de whether the spiracy, the looks at court, the evi the trial whether determine any goal, a shared common defendants dence, most light favorable viewed alleged par interdependence between sqch a reason government, al ticipants any overlap among the juror guilt .beyond able could rea find. leged McCullough v. Unit participants.” .(Vashon) Howard v. sonable. doubt.” (D.C.2003). ed (D.C. conspiracy single “The existence 2005) (internal quotation marks and altera conspiracies ques multiple primarily omitted). tions Hairston, 905 jury.” tion of fact prove gov conspiracy, “To (quoting v. Tar A.2d at 784 United States agree must that an ernment establish (D.C.Cir. antino, 846 F.2d people or more ment between two existed 1988)). offense; to commit criminal the de superseding indictment voluntarily par knowingly and fendant's] ticipated charged April July that between 2003 and intending agreement, *23 conspired as appellants and others that, in objective; a criminal and commit follows: during conspiracy, and furtherance of ... Cooper N. Lannell {Defendants one co-conspirator, a committed at least Gray Stephen R. ... Michael D. Tann overt act.” Hairston v. United) D. ... L. Saquawn ... Antonio (internal Arnette (D.C.2006 Robert ... Bri omitted). Harris ... J. Foreman quotation conspirato marks “A ... Dwayne Wright an K. Gilliam ... A. from cir agreement may rial be inferred n ... Rushing Dajuan E. D. [and James cumstances conduct include the Beaver],[11] persons and whose carrying in other mutually defendants out are both identities known and unknown illegal purpose, common the nature of the done, grand jury, knowingly to the and relationship parties act of the did confederate, combine, alleged conspira willfully conspire, and the interests of the together justice tors.” Castillo-Campos agree v. United and to obstruct (D.C.2010) (internal anyone to assault whose and' kill dictment, challenge sufficiency appellants 10. All but were not included the su- showing single conspiracy. perseding February indictment issued Only specific argu- case, and Amette Tann make govern- Prior to trial in 2008. membership conspir- ments about their in the rejoin other ment moved Beaver acy. comprehensive In order to ensure a granted appellants by the and the motion was claims, appellants' review of we will consider Dwayne against trial court. The cases sufficiency of the evidence as to the mem- Gilliam, Foreman, Wright, Robert Brian bership single con- each defendant Stephen Gray, alleged coconspirators all spiracy charged by indictment. allies, Crew or were 22nd Street members joint voluntarily appellants’ trial severed from charges against appellant Beaver were government. by the original September in- included contrary drugs. were those It’s commitment. interests It’s like a associates, in way their viola of life. defendants and 401, 402, tion of 22 D.G.Code Sections Appellants and gang other members 722, 2101, protect used territory violence their thirty- to list proceeded The indictment against silence retaliate those who acts, twenty-seven of discrete overt three were believed threaten the business jury, alleged which went security gang operations. and its charged or committed at least one been Devin Evans testified that an “outsider” coconspirator.- uncharged somebody “considered that’s from way Because the indictment your neighborhood, somebody that’s not alleged the suffi- conspiracy,-we review who would [by] welcomed” be “dealt with ciency of the. evidence to examine whether acts of violence” if caught acting way in a appellant properly established each adverse business interests of the knowingly participated agreement explained: crew. Andre- further McDuffie any- or to or kill justice, assault obstruct had to “[W]e enforce that no one can come contrary to one whose those interests were try into our area to take over our coconspira- of the defendants and their territory; no can one come there and tors,12 act and whether least one overt drugs sell having [because] we wasn’t it.” by a coeonspirator. was committed At If an outsider tried to move in on the trial, testimony offered market, gang’s drug stated, McDuffie operations of about the structure and -problem have a “[The outsider] would - through gang Street Crew several 22nd may up losing end Don- [and] [his life.]” cooperating who wit- “insiders” testified ald similarly. Matthews testified When gang nesses: former members Andre what if happen people asked would from McDuffie, Evans, Matthews, Devin Donald city part up another to set “decided testimony Alphonce Little. Their Street, shop drugs” on and sell Mat- 22nd gang to demonstrate tended “[t]hey replied long” thews wouldn’t last 22nd geographical territory around Street gang because them “[r]un members would only per- members where authorized *24 away” using “[violence.” illegal drugs. to mitted sell order.be “snitches,” gang The members treated enjoy of and part the 22nd Street Crew meaning “cooperating, telling those au- with that privileges the associated memr -... about the of thorities activities our bership, right partake such as to the the way. organization,” the same McDuffie of profits gang’s drug trafficking the busi- cooperate that if someone was to testified ness, to willing members had to further government, with the “there would be vio- goals gang through the of common the the lence inflicted.” usé McDuffie that to of'violence. testified drugs sell as a of the 22nd Street member gang members played The different Crew: operation according roles the to the violence; respect”
You have to commit acts of and rank[s] levelfs] “different another; to you stay loyal have to one that members had earned over time other, got you through if to you help loyalty each need demonstrations of the anything you gang. or if that the guns need more Donald Matthews testified [like] may 12. See White the conviction be affirmed if the evidence v. United (D.C.1998) ("Since n. the support theory.”). returned was sufficient to either charge guilty a-general verdict of on the .. “insiders,” gang. gang to. Devin assigned gang members Two other different roles Little, drugs, also storing money, Evans-and-Alphonce testified selling included that a cars, “committing] Arnette stealing acts was member the 22nd and. neighbor- Street Little testified Arnette protect the Crew. violence order to However, drugs 22nd Andre McDuffie also Street sometimes hood.” sold enforcer,” “everyone carried -a gun. police was an Several also officers testified with Arnette traf willing they “rival[s] a “beef’ in testified observed handle ficking cooperating drugs presence also the illegal The witnesses street. other .areas gang members and in known how 22nd Street Crew members revealed belong'to 22nd Grew. warned each about Street weapons, shared other police gang’s, activity provided in the leading Arnette role in the played also a members were in gang who assistance attack on Jones and Richard Terrence jail- r Queen. about this The incident reasonably perceived Arnette sufficiently testimony
Such showed showed Queen played no that Terrence Jones and affronted par- what role was matter time, given territory- of the 22nd Street Crew gang ticular member gang fellow member confronting 22nd Donald required Street Crew members were turf. gang’s Matthews on support the violence in Arnette use order Jones goals maintaining then out Terrence and Rich- advance the called overall Street, Queen “faking” stability reputation organi- 22nd ard zation, territory, illegal drug Cooper and its identified two outsiders to its (who leading testimony also Arnette knew was member business. This established gang), of the that Coo- operated that the as a unit recommended gang cohesive with, (albeit coordinated), loosely per “bring his hammer” to deal with the a rank > configuration situation. the facts showed leadership And that Coo- bound (and Tann) gang together. per responded accordingly, in representations, reliance on re- Arnette’s testimony backdrop This sulting in a chain events that led which, jury- participation examined Queen’s Terrence Jones’s death shoot- charged of appellants conspiracy ing. facts the murders this case. and. in. Although Cooper may following subsections detail evi- Arnette. been mistaken about whether Terrence specifically dence that more demonstrated Queen Jones Richard true threat knowing appellants in participation Crew, 22nd conspiracy alleged. Street interests evidence was sufficient show that *25 1. Antonio Arnette Arnette Cooper and believed that the out- siders, appel- they thought testified that “faking” by Donald Matthews who were Matthews, lant Antonio Arnette was challenging member Donald territo- Matthews, According 22nd aspirations Crew. to rial to the Street adverse interests spent appellants Arnette considerable time with their 22nd Street as- ap- and Crew pellants Cooper, Rushing, gang surrounding and fellow sociates. The evidence Little, incident, Alphonce on member 22nd Street. in the context of Ar- especially membership thát in Matthews testified was also nette’s the 22nd Arnette active activities, illegal with other 22nd Street Crew its was Street Crew and involved packaging selling illegal knowing in and his par- members sufficient to demonstrate drugs commonly by ticipation agreement Cooper in areas an with used in gang illegal other “to and in drug members assault involved -the on trade 22nd goals contrary to Cooper kill” whose were Street. in principal those was a gang. those of the murder of for perceived Terrence Jones to gang’s reputation threats and terri- Dajuan 2. Beaver tory on 22nd And Street. he was the- by Appellant was identified De- Beaver instigator, of attempts a series of to ob- Evans, Matthews, Al- vin Donald justice regard coopera- struct with to the phonce Little as the 22nd member tion the Johnson gov- sisters with the illegal Crew substances Street who sold in his prosecution attempts ernment — gang with other members on 22nd Street. which ultimately were La- connected to Alphonce Little also that he testified quanda- Alphonce Johnson’s by murder weapons shared with Beaver and Bea- Clearly, Little. the evidence was sufficient a gun. carried ver knowing show his in participation an played Beaver also in crimes a role agreement with other members sisters, against the Johnson who were 22nd Street crew to commit obstruction of by govern- known gang members justice possess- and murder of individuals cooperators. in ment Beaver was involved ing conflicting with those of interests assisting Cooper attempt with his to alter gang.
Kyara’s testimony leading up period 4.Saquawn Harris Moreover, to his trial. a key Beaver player Laquanda Johnson’s murder. Alphonce Little appellant testified that Beaver found the Johnson sisters 22nd Harris was a member 22nd Street murder, evening Street con- Crew, although he was a newer member of Alphonce vinced Little to them murder gang who had been introduced cooperation retaliation their with the gang encouraged drugs sell 22nd trial, Cooper’s 2006 Street influential Eric gang member assisted him by helping put. then Little Dreher. Little further stated that he sold together disguise shooting before the illegal drugs Harris weap- with and shared covering up the crime afterward. The him. testimony ons with of several evidence clear that Beaver was moti- police testimony officers Little’s bolstered vated to in this aid crime because about Harris’s to the 22nd connection membership in the 22nd Street Crew and by establishing Street Crew that Harris objectives his belief that the of the mem- Tann, Beaver, regularly was seen with Ar- bership contrary of “snitch- those nette, Rushing gang'members and other Thus, es.” evidence was sufficient on 22nd Street. show' knowing participation Beaver’s light relationships, of these the James gang conspiracy other in a members .Taylor-Bernard Mackey pro- incident was “obstruct-justice assault kill” and to participation bative of Harris’s persons with aims contrary to those his. of that conspiracy. The facts incident codefendants. Harris, Tann, many showed that other Lannqll Cooper members, gang -responded insult an outsider, Harrison, that ap- Alphonce Government witnesses testified Omar *26 Cooper pellant long-standing girlfriend was a and Little’s 22nd Street —in high-ranking organization gang’s Har- territory member heart to—and by 2004 everybody girlfriend who “could rison’s instruction to to [in tell Little’s gang] get your babyt’s] Harris and deeply “go what do.” He was also father.” the 22nd -Street relationship ing’s with in the Omar fire direction opened
Tann members, the evidence re- its sequence events that Grew and in a Harrison Taylor- partic- knowing show his in the James sulted death sufficient ..Mackey. Like “to kill or as- wounding conspiracy of Bernard in ipation Queen inci- (such Jones-Richard Laquanda) the Terrence whose as persons sault” in an dent, participation Harris’s active aligned with'those of interests were per-. to a violently reacted where he event Rushing or his associates. gang reputation threat to the
ceived Michael Tann (and gang of a fellow girlfriend member) of his was sufficient evidence “insider” wit government’s All agreement “to in an knowing participation (McDuffie, Evans, Matthews, and nesses kill” interests those whose assault and Little), Tracey Tann (appellant as as well gang of his associ- contrary ran those wife), that Tann was a Tann’s testified ates. member of high-ranking well-known and Lit Rushing Crew! Matthews
5. James the 22nd Street testimony about Tann’s provided also tle appellant McDuffie testified Andre in gang members participation other of the 22nd Rushing had been member gang’s trade. drug 1990’s; early since the Crew Street gang member McDuffie was senior appellant, Tann any than other More entry gang, Rushing’s time of into the closely-involved was also the acts responsible teaching McDuffie challenged who against outsiders violence Rushing gang-related skills. McDuffie repu- territory and the 22nd Street Crew’s Rushing sell also testified that he saw key player in- tation.. Tann was a on 22nd regular on a basis crack cocaine Jones, Jones, and James Leslie Terrence testimony additionally Street. Matthews’s Moreover, the facts Taylor murders. Rushing’s provided supporting evidence repeated of threats point to Tann’s use mem- drug trafficking activities with other witnesses, against potential who violence gang. bers of the testify against coconspirators; his might ,to Beaver, Rushing played a critical Like justice. obstruct These circum- order murder, Laquanda Johnson role sufficient to establish stances were of his which was evidence involvement acting alongside other Tann —sometimes Knowing that Little in- conspiracy. commit acts of violence gang members to tended murder the Johnson sisters be- (including Ter- against perceived rivals cooperation gov- of their with the cause Harrison) rence Jones and Omar —know- ernment, Rushing agreed to act Little’s ingly agree- in an joined participated getaway Rushing drove Little and driver. or kill” justice ment “to or assault obstruct Beaver from the scene of the crime after ran persons whose interests counter Laquanda wounded Kei- Little killed gang. those of the up helped sha Frost. He also Little cover instructing to discard- the crime him sum, was sufficient to the clothing, by driving Little Bea- all appellants, show that members Maryland house in where
ver’s mother’s Crew, agrees into an 22nd Street entered weapon. Beaver stashed the murder Giv- threatening or justice ment to obstruct Laquan- Rushing’s participation en witnesses, or murder, manipulating assault killing of da Johnson a known kill interests were at odds government cooperator, light persons of Rush- whose
429 theirs, or cooperating provided such as even when assistance by rivals cocon- witnesses, knowingly voluntarily spirators minimal”); to each “fairly other is Hairston, agreement. that participated in Richerson, see also United States v. 833 Moreover, twenty- at 905 A.2d 784. 1147, (5th Cir.1987) (“Parties F.2d conspiracy overt acts of the that seven knowingly participate who with' core con- jury, many supported by went were spirators to goal achieve a common may be evidence, at some sufficient least were members of an conspiracy.”). overall supported by overwhelming evidence.13 events of the Terrence Jones murder-Rich- Lumpkin v. United See Queen Tann, ard (involving Cooper assault n (D.C.1991). Arnette), Taylor the James murder- Tann, Mackey Bemard assault arguments (involving appellant’s As to Harris, members), single conspir gang at trial other and La- proof did show a acy, appellants quanda showed that but instead Johnson murder-Keisha Frost as- merely engaged projects, (involving “discrete Rushing), sault Beaver and are general within a happened which communi examples of such coordinated actions all ethos,” ty and that “indictment was so appellants to goals achieve the con- , meaningless and unlimited to be . broad spiracy. context”, in a criminal una we find them First,
vailing.
the evidence was sufficient
Finally,
agree
we
with the United
appellants
engaged
were
show
of Appeals
States Court
for the District of
pur
demonstrating
actions
common
core
Columbia Circuit that “a conspiracy’s pur
pose, namely to inflict or threaten violence pose
not be
should
defined
too narrow
(real
perceived)
govern
on rivals
or
specific
Gatling,
terms.”
F.3d
cooperators. See
States v.
ment
1520. Our case law
demonstrates
Graham,
(D.C.Cir.
83 F.3d
1471-72
Hairston,
principle.
same
See
Moreover," appellants appellants it is clear that any authority demonstrating ed gang together, and other members acted other, conspiracy charged legally count as relied each and often coordinated Romero, efforts, United States v. deficient. effectively their in order to more Cf. (2d Cir.1990) (or 897 51-52 F.2d goal inflicting (affirming achieve their common conviction for to kill a conspiring federal threatening) opposed violence those conspiracy officer where “was defendants’ gang. the interests See United plan agreed the result of a Gatling, all the States F.3d (D.C.Cir.1996) (finding “interdependence” anyone posing defendants to kill a threat business”). conspiracy existing purposes single to them or [their narcotics] example, Laquanda For the facts that went to Overt of Frost, Johnson and assault of Keisha 28-30, dispute.- Acts which described Little’s murder *28 430 concerning the argument
Instead, adequately Tann’s count conspiracy (the principal was the which he offenses of the elements appellants apprised robbery Queen, of Richard AWIK armed which frame within offense- and the time Queen, weapons of of and related WA existed, appel such conspiracy fenses) government’s evidence is that the their defenses properly prepare could lants solely on it rested insufficient because was jeopar against double protected and were Donald Mat incredible witness: single, a Roman, F.2d States dy. See United However, single testimony of a thews. - (indictment Cir.1984) (7th 846, 863-54 . conviction, a to sustain witness sufficient conspiracy where al charged properly wit other even where contradicted statute leged conspiracy, the. criminal v. United nesses evidence. Gibson violated,- of con the time frame (D.C.2002). States, 792 A.2d Therefore,- grant no relief to we spiracy). perfect not a wit was Although Matthews claims re on the basis their appellants ness, testimony and jurors credited his on, sufficiency of the evidence garding the so.14 for them to do We permissible it was of, conspiracy charges. legality or the their credibility determination jury’s afford appellate on review. substantial deference Queen States, (Steven) B. Terrence Jones-Richard Robinson v. United (D.C.2007). Incident A.2d Second-Degree 1. Tann’s Convictions: Tann’s claims involve other Murder Armed of While crimes of which he convicted Terrence those Robbery Jones, theory liability AWIK- aiding-and-abetting. Armed an , Queen, (second-degree murder Terrence Jones of Richard WA Posses- he, offenses). During PFCV Because sion of a Com- Firearm related second-degree murder was convicted of a Crime mission Violence shooting of abetting Cooper’s (“PFCV”) aiding and Jones, was re Terrence sufficien- Appellant Tann' makes several - had, mini prove Tann at a quired cy regarding claims his Terrence Jones- mum, regard “depraved heart” Queen convictions. Em- Richard related Perez, 968 A.2d Jones’s death. Terrence testimony of phasizing heavily the Richard murder, (“For second-degree at 102 credibility Queen the lack of of Donald intent, malice, which can required is Matthews, challenges Tann the identifica- proven by specific intent evidence jury tion that the relied for his kill, bodily specific to inflict intent serious involvement in the entire incident. Fur- harm, disregard or wanton and willful thermore, that, if argues even found to he human an risk—also known unreasonable event, he have been involved did murder.”). ‘depraved as heart’ “[W]here required possess the state mind for the of a crimi specific mens rea is an element aiding-and- jury to him under an convict offense, a have had nal defendant must abetting theory liability for the second- guilty of rea himself to be mens offense, degree charged prin while armed Terrence murder whether he is or as an abettor.” cipal counts of actor aider and Jones and related PFCV. Queen, ably who was attacked to counter Matthews 14. Tann’s best evidence concluded victim, surviving during extremely situ- -testimony of the from behind chaotic was the ation, Queen, identify simply Tann was unable view Richard who testified that powerful who among While all of the men were involved his attackers. counterevidence, could have reason- attack. articulated) verbally 356 not designed Kitt v. venture (D.C.2006); also v. United Tann gang see and his allow fellow Coleman mem- (D.C.2008) tactically 552-53 bers to divide their victims *29 subdue, aider (extending the doctrine that the and rob, eventually order better and in rea of Moreover, abettor must share the mens shoot both of jury them. murder). second-degree principal to easily could have inferred fi’om the close proximity of the assaults that as Tann attack portrays Tann on Richard (a Queen, Cooper by attacked he man saw distinct from Queen separate as and Coo- reputation known a history to have of vio- per’s attack on Terrence and Arnette’s lence) striking point- Jones and Terrence Jones; further, Tann that was claims there ing gun at him. go- he Cooper no that knew was evidence ing to shoot or that he Terrence Jones circumstances, these it Given was rea shooting. with the To helped Cooper jury sonable for the to have found'that sure, pre- no of any was evidence there displayed a “wanton and willful Tann dis or coordination between discussion attack regard of an unreasonable human risk” to Tann, in Cooper, and Arnette which the the life' of Terrence Jones when he isolat gang explicitly identified Ter- members ed, neutralized, robbed, ultimately ahd a goal. as rence Jones’s death posi shot the man who he knew was in a
However, government powerful tion to come Terrence Jones’s aid: effort, a joint evidence of and coordinated (Darion) Queen. Ingram Richard See heart,” “depraved through and of Tann’s (D.C. A.3d 900-01 testimony attack escalat- was 2012); Perez, at 102. 968 A.2d Arnette, Tann, ing, Cooper ordered Analyzing Tann’s PFCV offenses
others, to rob Terrence Jones and Richard Cooper’s associated of Ter murder Queen by which was carried out with order —an Jones, our rence case instructs law recipients. its This was done Coo- when government aiding an “[w]hen the relies on per nig- directed his cohorts “Pat them PFCV, abetting.theory prove it is gers’ pockets.” per- The evidence enough show the defendant clear to this order was fectly whom issued participated ‘in “larger scheme” Cooper precisely when said it States,, [crime].’” Fox v. United 11 A.3d events; however, interpre- course fair (D.C.2011) (quoting Lancaster suggests tation of the that was (D.C. v. United (who by Cooper to both made Arnette 2009)). “Rather, government must Jones) (in- covering Terrence men prove part act on some the defendant’s Tann) cluding attacking Queen. who were [principals] pos in their assisted understanding This of the evidence was ” Fox, of firearms.... session by testimony bolstered in- Cooper’s (internal quotation empha marks and immediately structions were carried out omitted). distinguish sis Tann’s case Tann, Arnette, others,- regard with from eases such as Fox and able Lancaster Queen. both Terrence Jones and Richard insuffi where found PFCV offenses we proximity The close the attack on Ter- aiding-and-abetting context. cient Queen, attack on rence Jones and the By according complying Cooper’s with directive to approximately ten matter feet witnesses, conjunction Queen, rob Richard rob- could have these instructions, bery sufficiently proved Cooper that Tann main- found assisted (if knowingly organized taining possession (by preventing Queen attacks for his friend) required Ter- mens rea elements of his coming from to the aid Queen as- murder-Riehard rence Jones using he was course firearm that sault convictions. related facts of Terrence Jones. The the murder of the counts the indict- pursued each steps affirmative Tann took show that to this inci- related against ment Arnette of his firearm keep possession help Cooper aiding-and-abetting theory dent under Queen ways: in a number subduing liability. (1) Queen’s pockets Cooper’s patting —at (3) direction; (2) robbing striking Queen; ini- that Arnette Kyara Johnson testified (4) Queen; ultimately shooting Queen by calling Cooper the attack tiated safety he could have as he ran for where him confront Terrence Jones and *30 telling to Fur help Jones. called for Terrence armed, i.e., his Queen with Richard while thermore, Jones the fact that Terrence that Ar- Kyara also testified “hammer.” suggested him Cooper by hitting resisted at pockets, Jones’s patted nette Terrence Queen that actions toward were Tann’s command, him Cooper’s and struck with Queen not helpful in that could ensuring Cooper gun had his drawn. his hands while interfering in with Coo aid Jones further believed, this amount to Certainly, if would weapon. Dang v. per’s possession of the in assault on Ter- participation active (D.C. 1039, 1043 741 A.2d However, does, Tann Ar- as rence Jones. 1999). in argues his involvement nette necessary offense did demonstrate Dang, where we found The facts second-degree murder state of mind for to show that the evidence was sufficient no reason to believe because he had his appellant abetted codefen- aided and Also Cooper shoot Terrence Jones. would firearms, possession in of their dants Tann, fact that like relies on the Arnette very similar to the facts here. are previous was no conversation there pos- Dang, although the defendant did intending to kill Cooper about Terrence weapon, sess a evidence demonstrated any did Jones or evidence Arnette in concert with code- [his that he “worked encourage Cooper to so. anything to do things, blocking by, among other fendants] Instead, argues shooting that the he door, point- guarding [one victim] “spontaneous by Cooper” to Ter- reaction Here, ing a knife at second Id. [a victim].” unexpected resistance rence Jones’s to helped Cooper in Dang, like Tann maintain attack. possession weapons through his ac- his tions, those of working argues in concert with that the Arnette further attenuated, Cooper, Queen. to neutralize Richard and therefore even more insufficient, regarding also his convictions Therefore, entirety in reject we their in aiding abetting Tann the armed arguments challenging Tann’s the suffi- robbery Queen. He claims that Richard ciency for his convictions of the evidence to there is no reasonable inference Terrence Jones-Richard related from his actions toward Terrence drawn Queen incident. (patting pockets hitting Jones his and/or him) Arnette’s Convictions: Second-De- notion that supports he gree Murder Armed of Ter- While Queen. rob Tann’s intent to shared Jones, Robbery rence Armed against ap- witnesses The Queen, Richard and PFCV pellant often inconsistent Arnette were Tann, appellant argues exculpatory their testi- Like Arnette sometimes However, question here is mony. that the evidence was insufficient as to the whether, light Cooper bring gun instructed viewing the evidence con s Ar- front Terrence -Jone government, and Richard most favorable Queen obviously demonstrating the req the “de- conduct demonstrated nette’s — knowledge uisite awareness (if Coo criminally not a more
praved heart”
Then,
per’s use of a firearm.
took
Arnette
required for the
culpable)
of mind
state
Jones,
steps
Cooper maintaining pos
assist
murder
Terrence
second-degree
during
at
Cooper’s
session
the firearm
rob-
specific intent to commit armed
Fox,
tack on Terrence Jones. See
11 A.3d
knowledge of
bery Queen,
Cooper’s
1287; Lancaster,
175;
975 A.2d at
firearms,
as
well
and Tann’s use
as
Dang,
at 1043.
in main-
Cooper
and Tann
assistance
firearms,
taining possession of those
For
robbery
conviction
required by
associated PFCV offenses.
Tann,
accomplice
which Arnette was
facts,
involving
key
as to the offenses
government was
required
show
victims,
(1)
instigated
were:
Arnette
both
specific
intent to aid
Arnette
by identifying
event
Terrence
the entire
robbery
abet Tann
of Richard
Queen
Cooper
and Richard
Jones
Queen. Lattimore v. United
him
telling
that the two
22nd
.men
*31
357,
(D.C.1996). Certainly,
A.2d
359-60
(2)
“faking”;
Arnette instructed
Street
pre-attack
was no evidence of a
there
dis
hammer,”
“bring
meaning
his
Cooper to
robbery
outlining
goal
cussion
as a
of the
in-
gun, thereby anticipating
Cooper’s
govern
attack which would have made the
(3)
violence;
complied
citing
Arnette
clearcut.
a
ment’s case
Arnette relies on
Cooper’s
pat
Terrence Jones’s
order
case,
Virginia
McMorris
Common
(4)
hit
Arnette
Terrence Jones
pockets;
wealth,
500,
348,
Va.
666 S.E.2d
352
attack; (5)
violently
of the
Tann
the course
(2008),
“[r]obbery
for the
proposition
Queen less than ten
away
assaulted
feet
incidental,
consequence
not an
probable
Cooper’s
from Arnette’s and
attack
assault;
robbery
a
requires
of an
com
Jones;
(6) Cooper phrased
Terrence
pletely
different
type
wrongdoing:
“robbery”
plural,
so
his
instruction
Indeed,
stealing.”
joint
plus
a
assault
that there were
Arnette would have known
proximity
robbery
close
a codefendant’s
jointly
victims to be
controlled and
two
specific
may be insufficient
show
intent
attackers.
subdued
robbery
aiding-and-
an
commit
under
liability.
abetting theory of
But the facts
As
offenses
Ar
which
here are not so limited.
(second-
Cooper
abetted
nette aided and
discussed,
already
As we
between
degree murder and associated PFCV of
stages
first
attack and Tann’s
fenses),
against
Arnette was
evidence
(parion)
robbery
Queen,
clearly
Ingram,
subsequent
of Richard
sufficient. See
Perez,
900-01;
Cooper
robbery
issued his
instructions.
at
er
942
(“[T]he
may
aiding
of
added.]19
[ ] convict
and
is
abetting in cases where the evidence
“or”
that the
government argues
The
who,
disputed
as between the
as
defen-
disjunctive,
and
the
makes
there-
statute
else,
principal,
and someone
was the
dant
categories
aiders
fore creates these two
is
long
so
as there
evidence that the defen-
position
The government’s
and abettors.
or
capacity
of the
one
the
guilty
participated
dant
Tann and Harris were
is that
—in
which
abetting,
and
the
to commis-
aiding
“first” form
other—in
events that led
advise,
they
crime.”);
Rosemond,
if
in-
accomplices
holds
liable
sion of the
see also
cite,
offense,” regardless
“at
or
connive
(“So
purposes
at
134 S.Ct.
1249
any,
relationship,
if
between
law,
abetting
aiding
person
who
and
Therefore,
accomplice
principal.
and the
participates
actively
scheme
criminal
contends, because Tann
government
knowing its extent
intends
and character
by shooting
Harris incited
crime
and
.
commission.”).
that scheme’s
Harrison, causing Foreman also
at Omar
fire,
open
Tann
Harris
need
Appellants’ Argument
“intentionally
with Fore-
have
associated”
argument
aiding
is
Appellants’
guilty
man in order tó
crimes
abetting
historically required
has
the aider
(assuming
principal).
Foreman was the
“intentionally
associate”
and abettor
attempts to bolster this
The
.
particular
or herself
individ
himself
with
eases,
citing
argument by
to a series
liability
principal,
ual who
court, in which
particularly from this
attaching only if
accomplice “know[s]
is
aiding-and-abetting standard
articulated
presence
criminal
principal’s
offense,
without de-
with'reference
Appellants
ar
intentions.”
cite authorities
relationship
on a
pendence
between
ticulating aiding-and-abetting standards
See, eg.,
accomplice
principal.
principal
specifically reference the
States,
46, 52
English v. United
25 A.3d
See,
Kitt,
e.g.,
formulations.
904
their
(D.C.2011) (“To be
aider and
guilty
(“[T]he
n. 10
require
356
basic
charged
abettor of a
offense ...
the defen-
universally accepted
ment ... now almost
dant
be shown to have assisted
must
accomplice
that] the
be shown to
[is
participated
guilty
in that crime with
(internal
principal
intended that the
com
knowledge.”)
quotation marks
succeed
omitted);
offense.”) (citation
Tyree
emphasis
charged
v. United
mitting the
purpose
object
§
19. The
22-1805 was
D.C.Code
and the
section was
aforesaid
offenders.”).
principals
"abolish
the distinction between
persons principal
make all such
princi
and accessories
them all
and render
"merely
statute
doctrine
[the]
extended
(alterations
Perez,
pals.”
at 93
omit
968 A.2d
responsibility
vicarious
classes
to additional
ted);
States,
see
v. United
447
also
Standefer
treating
principals."
of offenders
them as
10,
1999,
19-20, 100
U.S.
L.Ed.2d
S.Ct.
States,
280,
v. United
283 n. 9
Hazel
(1980)
similarly-worded
(interpreting
(D.C. 1976).
purpose
That narrow
notwith
statute,
aiding-and-abetting
federal
18 U.S.C.
not,
be,
standing,
prac
“it is
cannot
our
2(a) (2014);
§
participants in
"all
conduct
language
unqualified
tice
of a
to restrict
violating
‘princi
a federal
statute áre
criminal
Congress
particular
evil that
statute
”). (Edward)
pals’
Thompson United
ttying
remedy
assuming
that it
—even
(D.C,Cir.1908)
App.D.C.
("By
possible
identify
something
that evil from
command,
law,
persons
common
all
who
ad
the text
Bro
other than
itself.”
statute
vise, instigate, or
of an
incite
commission
gan v. United
U.S.
offense, though
present
personally
at its
(1998).
S.Ct.
439
Wilson-Bey
3,
omitted) (quoting
Analysis
quotations
internal
States,
818,
. United
903 A.2d
v
Fundamentally,
the elements
(en
(D.C.2006)
banc)); United States
831
aiding
“(a)
and
,
abetting are that
a crime
983,
(Dwayne) Washington
v.
106 F.3d
(b)
by someone;
was committed
the ac
(D.C.Cir.1997) (elements
aiding
1004
cused
or
assisted
participated
its com
specific
abetting
include “the
intent to
(c)
mission; and
his participation was with
commission of a crime
an
by
facilitate the
guilty knowledge.”
v.
Hawthorne
United
Wayne
other”); see also
LaFave,
R.
Crimi
(D.C.2003).20
829
952
A.2d
“A
13.2(b) (5th
2010) (“General
§
ed.
nal Law
culpable
per
aider and
need
abett[o]r
ly, may
accomplice liability
it
be said
offense,
form the
need not
substantive
accomplice intentionally
exists when the
details,
know its
and need not even be
assists,
encourages or
that his
sense
present,
long
so
as the offense committed
encourage
is to
or
purpose
assist another
by
principal
the
was in furtherance of the
as to which
commission
crime
design.”.
common
United States v. Sam
requisite
has
accomplice
mental
(D.C.Cir.1980) (cita
pol, 636 F.2d
676
state.”).
extrapolate
“in-
Appellants
omitted).
is
tions
not essential that
“[I]t
is,
with the principal
tentionab association”
principal
operation
be identified
been,
always
required
aiding-
and has
long
so
as-someone has that
Gay
status.”
liability.
and-abetting
den v. United
Appellants argue
gov-
on the
based
l
(D.C.1990) (interna quotation marks and
evidence,
jury
could have
ernment’s
omitted).
alteration
prin-
found that
Foreman
Robert
Taylor
cipal
the James
Be-
Wilson-Bey,
murder.
wedealt with
first-
cause, appellants argue,
they
degree premeditated
prosecution
no
murder
knowledge
§
Foreman’s involvement
under
22-1805
D.C.Code
and held that
help
the incident and no intent to
or
charged
en-
“whether the
as a
defendant
courage
principal
abettor,
Foreman
commit criminal
or
ac-
as an
or
aider
tivities,
they
government
prove
could
must
all of
the elements
aided.
offense,
him in his
Although
abetted
crimes.
of the
including premeditation,
de
liberation,
ambiguous
as to
who was ac-
and intent-to kill.” 903 A.2d at
tually
so,
principal
in both the
In doing
adopted
murder and
822.
we
rule'
AWIKWA,
Peoni,
appellants
(2d
argue that the
States v.
see also
Wilson-Bey be
not do in
did
613, 618-19,
which we
69 S.Ct.
93
U.S.
386
is
presented,
was not
question
cause the
(1949) (“In
abet
order to aid and
919
L.Ed.
and abettor
the aider
determine whether
necessary
a crime it is
commit
another to
requires,
the
acts, Wilsmk-Bey
with
as
who
associate
‘in some sort
that
defendant
principal
as the
intent
purpose
same
and
venture,
partici
that he
himself with the
“intentionally
with
associate”
must also
something
he wishes
in it as in
that
pate
pointedly,
More
principal.
specific
that
about,
by
that
seek
his action
bring
he
the aider and
here whether
question
is
Peoni,
(quoting
100
make
succeed.’”
presence
of the
and
must know
abettor
402)).
and
that an aider
at
We held
F.2d
principal and form
specific
conduct
rea re
act with the mens
must
abettor
or her with the
help
him
the intent
crime
by
specific
with which
quired
crime,
opposed
or her
commission
in
charged and “be
associate
principal is
(with
simply
whoever shared the
to share
Wilson-Bey, 903
crime.”21
guilt
that
mens
purpose) in the
aider
abettor’s
omitted) (quoting
(emphasis
at 831
A.2d
itself.22
to commit the crime
required
rea
States,
1098, 1104
Roy
v. United
tri
disputed
at
Although the evidence
(D.C.1995)).
Wilson-Bey,
explained
We
al,
purposes
for the
assume
we
however,
that, nothing
opinion
Foreman who
that it was Robert
opinion
in
propriety
[an]
“casts doubt
Taylor
that hit James
fired the bullets
jury may
that a
...
to the effect
struction
therefore, was the
Mackey, and
Bernard
natural
person
.
that a
intends the
infer
against
crimes committed
principal in the
probable consequences of his or her
assume, because here it
them.
alsoWe
omit
knowingly
knowingly
or
acts
done
record that the evidence
appears from the
(original
n.
where
did
exist before.
Outlaw
case we
have the
which
intent
(D.C.
408, 411
v. United
prompted appellant
commit
of-
1993)
(interpreting
elements
him,
fenses committed
but there is a
22-1806,
§
District of Co
D.C.Code
lack
evidence to show that he shared
statute,
accessory-after-the-fact
lumbia
any
purpose
criminal
intent or
light
the common law in the
absence
prompted Stanley
which
fire
fatal
definitions).
statutory
discloses,
as this
So
record
shot.
far
Commonwealth,
begin with
We
Whitt
Stanley may have had some criminal
(1927).
Ky.
In that
S.W.
totally foreign
intent
disconnect-
case,
firing
appellant
while
Whitt
at
prompted
ap-
ed
intent which
from
(a law enforcement officer who
Scott
words,
pellant;
Stanley may
in other
him),
attempting
third-party,
arrest
upon
opportunity
seized
thus
Stanley,
fatally
appeared
Officer
shot
to him to
presented
up
even
old score
The court
Scott.
observed:
with which
was to-
appellant
\vith Scott
disconnected,
tally
and with which crimi-
appellant
It
in resisting
clear that
arrest,
Scott,
nal
firing
at
intent he had no connection and no
was at-
arrest,
tempting
sympathy.
to do so to evade
(Edward) Thompson,
App.D.C.
See
at
46.
364;
Rosemond,
see also
The
assaulted
coming to
sher-
preventing them from
present
Landrum is
here.
Whitt and
589,
Ochoa,
there
both.
In such circumstances
24.
41
72 P.2d
assault
State v.
N.M.
Cf.
(The
609,
(1937)
may
wanting
sharing
616
accused
of criminal
intent
independent
held for the
act
another even
aiding
abetting.”).
proof
essential to
person
though
be the victim of an
the same
iffs
tavern
“[t]he
aid. The Ochoa court held
vestibule. The
up
“ran
defendant
fact
en-
[the defendants]
thus
the front of the tavern and
[his]
fired
upon
depu-
in-a
gaged
gun
vicious assault
through
window, striking-
[the
the [tavern]
ty],
jury’s province
...
left it
within
leg.”
[the victim]
Id. 192 Ill.Dec.
fit,
infer,
405,
if it saw
alone
these
[A]
inference that
one of the
concluded that “the evidence ...
suffi
...
crowd
was
for a common and
ciently
a
design
common
demonstrated]
there
purpose,
unlawful
participated
and
or
community
purpose
and a
of unlawful
be
aided and
abetted
assault....
tween the
and the second un
defendant
There thus
justify
individual,”
is evidence
find-
405,
identified
id. 192 Ill.Dec.
ing of
confederacy
combination or
or
logical
625 N.E.2d at
that it
and
was
of action of
concert
this armed crowd or
to conclude that the
aided
defendant
mob ...
that all
or
were members
who
“by
second
shooter
virtue
unidentified
part of such
or
. i.
or
first,
crowd mob
aided
shooting
thereby
the victim
mak
therein;
though
abetted
and
the evi-
ing
prone
[the
more
and
victim]
vulnerable
dence does
show
not
was
whether
to a second attack.”. Id. 192 Ill.Dec.
not
was
the bullet shot by the defendant
In v. Ill.App.3d Cooks is relevant there was because (1993), Ill.Dec. N.E.2d 365 evidence from which the could infer victim belonged murder and defendant to that Harris Tann were aware that enemy members, too, gangs. argument gang shooting at Following be other were an Harrison, gangs, prompted by tween members the de the altercation be- two Tyndle- fendant followed victim as he entered a tween Harrison and Under for”) (i.e., cases, crew “sending if 22nd even Tann and Street rationale these (who, above, presence were Harris were aware members discussed one 22nd participation of each “to participants conspiracy in an overall shooters did not' crew-member Street anyone assault kill whose interests shot, they could know who fired the fatal [appellants] those of contrary were liable as aiders and abettors be held support their and' come |associates”) shooter— whichever other crew-member (2) efforts; Tann’s Harris’s and including principal Foreman —was knew' the fatal Harris and Tann before (whose action facilitated- and encour- shot that other 22nd crew was fired Street actions). aged by own Harris’s and Tann’s joining affray fact members (even Commonwealth, though no there was
Haynes 515 S.W.2d they in particular knew that Foreman (Ky.1974), a case discussed our participants). our one of dissenting colleague, helpful is also .to in that analysis. question addressed words, contrary our other dissent- was, does, what case “under circumstances ing Kentucky colleague’s argument, affray person in an engaged become Haynes court’s under- decision does of another aider and abettor who inter our Harris argument cut Tann and uninvited, assuming they venes even guilty of abet- aiding could be found purpose’’’ ‘share the criminal intent or shooting Taylor. ting James Foreman’s Whitt). (quoting “ap were that The facts Given that all three individuals shared the' pellants John Robert and Tounsel rea shoot and the same mens Harrison in ... a ‘shoot Haynes[ engaged ] were that Tann and evidence" demonstrated fa out’ with William Caudill” when their reasonably Harris knew that actions their ther, “appellant Haynes[,] Joe armed him would 22nd mem- incite other Street crew rifle, went the scene of the self *41 aid, to their bers come we think the Caudill.”, affray, shot and killed and analogous situation is more to those here Hayneses, at three 240-241. All S.W.2d Kuhis, in Ochoa where courts conclud- and and guilty were indicted for murder found in ed a participating an individual voluntary Id. manslaughter. at 241. guilty criminal be mob could found aid- Kentucky of Appeals The Court held ing abetting and of a mur- the commission justify that the evidence did not the sons’ mob, by der k of the if member even act, conviction of father’s reasoning exactly aider not who from the did know that there was “no evidence from which it fact, killing. mob did even the actual may ... reasonably be inferred that either that, our colleague in dissenting agrees of the sons for the father” and “no "sent mob, person of a criminal instances who even Robert evidence that John "knew he large to a “knowingly attaches himself killing.” arrived Id. until after reasoned, group” may Further, to have be considered aided “the fact group of the may and abetted other members provoked Tounsel encoun may illegal amount to commit acts even “he though ter” “would not itself assistance Here, contrast, encouragement.” by group in Id. know who is or who merely principal the evidence that Harris in it are.” offenders provoked and Tann Foreman’s encounter Rather, case law Taylor Mackey.
with
We believe
theré
following propositions
supports
was evidence from which it could
in
rooted
(1)
in our-
incorporated
ferred
that Harris’s
Tann’s action
common law
(1)
shooting
in
at
an
aiding-and-abetting
Harrison was
invitation
the aider
statute:
Applying
and abettor must have the mens rea of
principles
these
the facts
actor, Wilson-Bey,
principal
case,
see
903 A.2d this
we think it is clear that appellant
“purposive
at
and must have the
atti Tann,
Harris,
appellant
and Robert Fore
towards”
criminal
tude
venture de
possessed
man all
the same criminal state
Peoni,
(2)
402;
in
100 F.2d at
scribed
premeditated
of mind:
intent
to kill
responsible
defendant is not
for the actions Omar Harrison. This intent
shifted
who, wholly
a third-party
unassociated
killing of
Taylor,
James
and the assault of
'
'
independent
defendant,
of the
Mackey,
Bernard
under
theory
into a
is no com
enters
crime when there
recognized
transferred intent as
in orn-
munity of purpose between the defendant
(Wes
ease law and hot in dispute here.
Landrum,
third-party,
and the
96 S.W. at
)
ley Williams v. United
881 A.2d
(3)
588;25 however,
the defendant need not 557,
(D.C.2005);
O’Connor v. United
presence
every
know of the
participant
(D.C.1979).
399 A.2d
in a group
(including
principal)
crime
The evidence also established a “commu-
in
guilty
order to be found
under
aid
nity
purpose”
Tann, Harris,
between
Ochoa,
ing-and-abetting theory
liability,
Foreman,
and Robert
reflecting a uniform
(4)
617;
72 P.2d
where the criteria
common design
among the three
(1)
above are met and the evidence at
shooters. When word of the confrontation
proves
trial
that the defendants
their
Alphonce
girlfriend
between
Little’s
action,
(and thus,
foreseeably
the factfin-
Omar Harrison spread through
conclude,
22nd
may
intentionally)26
der
incited
Street, Tann, Harris, and Little rushed
party
action
a third
who
shared
then-
gang
with other
toward Harrison
members
community
purpose, aiding-and-abetting
anticipation
of a
Cooks,
confrontation. The
liability may be found.
192 Ill.Dec.
Kukis,
369-70;
supported
finding
appel-
448
Harrison,
participated in it as
against
that
has
on factors
liability and
relied
about,
bring
to
recognized
something
The
that
as relevant.
he wished
these cases
succeed,
equally
his action to make it
sought
law
herein'
case
discussed'
their
parties
part
purposive
towards
displayed
and
available
attitude
’ '
it,
aiding and abet-
requires
research.
as Peoni
its
liability.
Wilson-Bey and
ting
What
foregoing
that
examples
All
show
is
and abet-
progeny require
that the aider
opportunity
had
de-
parties
ample
thé
it
principal;
mens
of the
tor
rea
share
bate,
debate,
of the
the relevance
did
and
liabil-
enough
aiding
abetting
and
holding.
rely
on
we
for our
factors
which
have
ity
reasonably
defendant could
suggests that
Judge
analysis
Glickman’s
do.
principal
would'
foreseen what
Wilson-Bey, Harris
after Peoni and
Here,
dispute
no
evidence
there is
may not
liable for the fore
Tann
be found
Tann
to show that Harris and
sufficed
shooting
inspired.
their actions
seeable
to kill Harrison.
shared Foreman’s intent
Peoni
is that “the
But what
established
whether,
in-
sharing that
question is
result would
probability that
forbidden
tent,
may
they
be held liable under
upon
accessory’s
follow
conduct” does
initiating a
aiding
abetting theory for
suffice; rather,
aiding
to incur
they
reason
shooting incident that
had
liability,
must “in
abetting
the defendant
(and
cause)
cause
did
other
foresee would
sort associate himself with the ven
some
join
shooting.
in the
gang members
ture,
something
participate
...
in it as
Wilson-Bey requires
nor
us
Peoni
Neither
about,
...
bring
wishes
seek
he
question
negative.34
answer that
sueceed[,]”
to make it
his action
have
conclusion
“purposive
it.” 100 F.2d
would reach a different
attitude towards
We
establishing
no
amply sup
at 402.33 The evidence at trial
there been
Tann,
finding
community
purpose
Har-
ported a
that Harris and Tann
between
Foreman,
ris,
each associated
vendetta
Robert
and if the evi-
himself with the
that,
Judge
aiding
abetting liability]
33.
Glickman
observes
of the
that the ac
[for
also
to,
five
we
cases that
cite
four
decided
complice be shown to have intended that
Peoni, and
before
one was
under a
decided
committing
charged
principal
succeed
”
juris
no counterpart
státute that has
in this
offense’ and further stated in Little v. United
diction,
regard
pre-Peoni
With
four
1096,
(D.C.2010),
cases,
Kentucky,
does not
matter that the
knowingly
or abettor
the "aider
must have
Mexico,
New
cases were decided
Utah
person with the intent that the
aided the other
because
con
beforehand
those cases do not
charged
person
other
commit
crime.” It
principal holding.
flict with Peoni’s
In none
Wilson-Bey
us
is consistent with
and Little for
dispute
any
cited
four
cases is there
specifically
to hold more
here that the aid
that the
shared
same mens
aider/abettor
prin
must "have
intended that
er/abettor
that of the
rea as
unknown or inadvertent
(whoever,
cipal
among his associates who
regard
principle. With
to the Illinois case
reasonably
participate
expected
be
could
Cooks,
design
community
“common
or
pursuant
purpose
to a common
present
if
purpose”
proving
unlawful
doctrine of
an in
scene,
be)
principal might
turn out to
promote
tention “to
a crime” is
facilitate
committing
charged
offense"
succeed
law,
found in
rooted
the common
and not
knowingly'
the other
and "must
aided
Cooks,
See
the statute.
192 Ill.Dec.
(whoever,
person
among
who
his associates
368-69;
Foster,
People
N.E.2d
see also
reasonably
expected
participate
could
Ill.App.3d
145 Ill.Dec.
pursuant
purpose
present
to a common
if
(1990).
N.E.2d
be),
scene,
person might
turn out to
Judge
person
intent
Glickman
“de-
with the
that the other
commit
notes that this court
Wilson-Bey
‘requirement
charged
clared in
that it is
crime.”
*45
as an
supported
dence had not
an inference
is authorized
develop-
incremental
Harris
Tann
law,
and
knew'that
fellow 22nd
ment
the common
from reasoning
joining
in the
Street crew members
implicit
is
the decades-old cases we
assault and that it was foreseeable Har-
have cited.35 The fact that there seems to
any
ris and Tann that
fellow crew mem-
reported
no
that has
case
articulated
If
bers who were
the area would do so.
theory
precisely
hardly
as we have is
Landrum,
the facts were such’as those
because,
surprising
trial
as the
court and
there
of a
where
was
commu-
no-evidence
parties
agreed,
all
the facts
this case
nity
purpose
between
defendant aid-
“very
And,
are
odd” and “rare.”
however
principal,
then
er
abettor.and
imprecise
be,
may
the rule we announce
it
be insufficient. But
evidence would
to,
is
application
anchored
limited
Foreman,
a gang
evidence
mem-
by, the
and unusual facts of this
detailed
lived
ber who
around 22nd Street and was
case.
acquainted
guns
with Harris and shared
him,
step
respond
with
was about to
Accordingly,, for
the foregoing
Harrison-Tyndle
altercation until
he
reasons,
deny
we
appellants’ claims related
it,”
perceived
“got
that Harris and others
sufficiency
to the
of the evidence. We also
joined
shooting
then
“get-
in the
when
deny appellants’ claims
related
the cur
ting
purpose
it”—the common
and de-
closing arguments
of their
tailment
when
And,
sign
to that
as in
level.
—escalated
judge prevented
the trial
from argu
them
Cooks, Tann’s
Harris’s
initi-
actions of
ing that aiding-and-abetting liability re
ating
shooting,
rendering
the tar-
quired
prove
that the
vulnerable,
get more
facilitated and en-
accomplice
a
help
intended
known and
couraged
joining
gunfire
Foreman’s
in the
particular principal commit
charged
help
his 22nd
Crew cohorts. 192
Street
369-70;-
In this respect,
judge
offense.
the trial
405, 625 N.E.2d at
Ill.Dec.
correctly
prevented
acted
because he
fact that Tann and Harris were unaware of
Foreman’s
until
See
presence
after Foreman misstatement
law.
Gaines,
(11th
v.
(presumably)
the fatal shot
not States
fired
does
F.2d
government’s
Cir.1982)
.legally
(no
make the
error
trial
where the
“court
.
insufficient.
properly prevented
from
defense counsel
arguing
legal
proposi
false
reasoning
The dissent derides
as a
our
tion”);
Hager
see also
v. United
theory of
devising.”
[our]
“novel
own
We
(D.C.2002)
(trial
court
above,
think the cases discussed
decided
properly
acts
...
(and,
instance,
where it “exclude[s]
century)
decades
in one
ago,
misrepresent
show that
at all
those statements
theory
our
the ev
law”).
devising,
novel.
of our own
Rather.than
idence
highest
jurisdiction,
ty
presented
As the
of this
we
on facts such as those
here:
"power[
respon-
principal
particular
of course
presence
] [and
have the
whose
was not
defendants,
who,
sibility]
develop
the common law for the
known to the
but
because of
Columbia,”
membership
over-arching conspira-
District
Williams v. Walker-
in an
Co.,
defendants,
cy
foreseeably
Thomas Furniture
350 F.2d
incit-
(D.C.Cir.1965),
join
"as new
ed to
circumstances
defendants’ criminal conduct.
own,
patterns present
Rogers
question
fact
We
themselves.”
must answer the
on our
n
Tennessee,
451, 461,
way
532 U.S.
121 S.Ct.
and we do so in a
that we believe is
(2001).
pronouncements
neighborhood parking and met Little a Two kinds of when problems arise there gun in a car with a lot. Gilliam was seated is a deviation An. from an indictment. lap in his and asked Little “Where that amendment the occurs indictment of. “point [Kyara bitch and to at[?]” Johnson] charging when the terms the indict- .of out.” ment are A altered.... variance occurs Furthermore, charging when the gang ally Dewey Chappell terms the indict- unaltered, ment are left but that Beaver him both of the evidence told testified materially offered at trial facts “supposed proves the Johnson sisters to be were testifying Chappell for different from government.” the in the in- alleged those twenty 22nd then traveled to Street ten to dictment. in attempt
times
to
the sisters with
find
(Terrence)
States,
Ingram
592
v. United
marijuana
to
the intent
offer them
992,
(D.C.1991) (emphasis omit
A.2d
1005
money
testify”
“change
“to not
or to
their
ted). A “constructive amendment of the
Chappell
statement.” Because
did not
,
if,
if,
only
indictment can
the
occur
like,
what
Beaver
know
the sisters looked
prosecution
complex
relies at
trial
a
the
help
him
tried
find them.
of facts
distinctly different from
which
testimony
grand jury
at
about
There was also
trial
set forth
the indictment.”
States,
988,
relationship
v.
nature
between the Baker United
999
867 A.2d
(D.C.2005)
omitted)
Johnson,
Laquanda
sisters.
(emphasis
(quoting
the older
sister,
States,
300,
known
be “a sort of middle- Carter v. United
826
A.2d
“gatekeeper”
(D.C.2003)).
Kyara
variance,
proof
man”
between
I a
at
n
her,
persons
for
seeking access
at least
distinctly
trial
differ
does not show such a
who
facts,”
members
22nd Street Crew
proof
“complex
ent
nor does the
looking Kyara
the aftermath
differ from the
elements”
“essential
investiga-
the Terrence Jones murder. An
Mar
charged
offense
the indictment.
assigned
Cooper’s
tor
team for
defense
States,
699,
v.
shall
United
15 A.3d
710
2006 trial
for the murder of Terrence
(D.C.2011). “In contrast with an amend
during
Jones
the instant
testified
case
ment, a
dismissal
variance will
warrant
speak
[Kyara]
his “best chance to
except upon
showing
prejudice.”
through [Laquanda].”
(in
(Terrence) Ingram,
455 whether co- determining (particularly Kyara) In sisters change their may statements conspirator be held liable for com and some of these efforts con- templated the use of : mission a substantive offense the force. that commit, directly did the defendant Moreover, there was to show government prove agree must “that an that conspiracy justice to obstruct existed, ment that substantive crime prevent the Johnson from doing sistérs co-conspirator fur was committed further damage to the 22nd Street Crew agreement, therance that and that the did not end after Cooper’s 2006 Conviction. a reasonably substantive crime was fore Alphonce Little testified that he murdered agreement consequence seeable be Laquanda, Kyara, and intended murder conspirators.” tween the Unit Collins they might because testify in the future (D.C.2013). ed A.3d against “[a]nybody Street, it around 22nd “required is not estab could me.” [be] Little that stated because co-conspirator lish that actually aided murder[, sisters t]hey “told on a could perpetrator commission selling told me drugs whatev- [or] crime, only but substantive crime er.” Because in this case appellants had conspiracy.” furtherance of committed yet charged with conspiracy, and t on-Bey, a 840 Wils appellants other than Cooper yet-to be Pinkerton, 646-47, (citing U.S. at 66 charged for the Terrence Jones murder- 1180). S.Ct. assault, Queen Richard it was foreseeable continue, the Johnson sisters would Here, conspiracy among Coo conviction, notwithstanding Cooper’s per and other members 22nd Street potential have the to harm gang.43 Crew 2003 and 2006 between included the Furthermore, agreement justice, to obstruct and the conspiracy charged evi coconspirators pur encompassed dence showed this case goal also during period goal killing sued time “snitches” whose actions demon- leading up Cooper’s trial. The strated “interests contrary [that] Cooper personally that. their ap record shows those the defendants and associ- proached Laquanda Johnson overarching unsuc átés.” accordance with and. cessfully drugs her with money “rule” the 22nd Crew bribed Street enforced attempt Kyara in an influence Johnson’s violence was to be inflicted “snitch- es,” testimony at that trial. The evidence also was foreseeable the Johnson sisters, Cooper by cooperating govern- revealed that multiple contacted *51 ment, gang persuade subject members order the would be to retaliation "(1) Kyara, helped by "heavy sup- his burden” to establish -her oth- threát that sister’s prosecuted, similarly ers were not situated port, posed to 22nd Street members the (2) prosecution being and the selective com- coconspirators Crew and the in this case. i.e., motivated, plained improperly of was it impermissible was based on an consideration gang 44.' Former member Andre McDuffie tes- prevent such as race on a desire to the cooperate tified that someone "[i]f was to rights.” exercise of constitutional Fedorov v. government]” [with that "there would be States, (D.C.1991) United 600 A.2d Alphonce violence inflicted.” Little testified omitted).' (emphasis that an "automatic” of the crew was rule snitch,” which with the terri- ”[d]on’t "[came] example, Kyara’s testimony 43. For in the in- tory game,” nobody of the and that who the appellant appel- stant case about Tann's and gang knew to be a snitch ever came back to lant Arnette’s involvement the Terrence continuing Jones 22nd murder demonstrated Street. testifying against the Kyara, from da and 22nd Street Crew who members Crew, by retaliating with and charged conspiracy. into the 22nd entered Street had Beaver, Little, 22nd and fellow who collaborated against persons When violence dis Dwayne Wright against gang; government member Crew with the Street 982-84; to Collins, Roberson v. the sisters returned at covered that 73 A.3d determined, Street, (D.C. accor they 22nd Gatlin, con retaliatory goal of the 2008); dance with at 600. fur 925 A.2d We should be killed spiracy, sisters nothing about ther that there conclude gov cooperation with the because conspiracy them or nature breadth ernment. Pinkerton liability un charged that made Cooper. fair to jail was in at the Cooper'
The fact that murder does Laquanda time of Johnson’s Evidentiary Is- Procedural VIII. Pinker- liability not relieve him under Conspiracy to the sues Related v. United ton. Gatlin Appellants’ Trial Joint (D.C.2007) provides useful framework Gatlin, claim. analyzing Cooper’s Cooper’s A. Prior Convictions defendant, at who was incarcerated arguments in- several Appellants make government of a wit- time murder Cooper’s volving the admission challenged coconspirator, his ness for the Terrence Jones mur- convictions admissibility of the murdered witness’s First, Tann Queen assault. der-Richard testimony grand jury under the forfeiture- contend that the trial Arnette by-wrongdoing doctrine.45 We held trials to sever their erred when refused “[ijt'Was reasonably that intim- foreseeable Cooper’s apparent it became from after idation and threats to witnesses could Cooper government that both the in- in the murder of a witness.” Id. result at Cooper’s prior put evidence tended facts of Gatlin showed that the 600. Second, jury. in front of the convictions defendant, while communicated prison, Tann, Arnette, Cooper make the evi- disposing of about associates wit- dentiary argument prior that the convic- and, much of this nesses like facts not have been admitted tions should case, pressuring government cooperators government against of them. The each Id. at change story.” “to their evidentiary as to Tann and admits error together, pertaining Taken the evidence Arnette. coconspirator’s goals obstructing trial, Before indicated justice inflicting upon violence snitch- its intent to admit the convictions because persons contrary with interests es— they provide as to the con- would those of 22nd Street Crew members— (1) spiracy count of the Terrence Jones Laquanda Johnson’s demonstrated assault, murder and Richard which reasonably Queen murder was foreseeable to represented in a series of overt acts Cooper, despite jail fact that was in he indictment, (2) partial listed in murdering act of the time. Little’s Laquanda murder of John- *52 Laquanda scope within the of the con- motive the was coconspirator, Alphonce son spiracy justice by- preventing appellants’ to obstruct Little, sought revenge against government'cooperators, Laquan- such as who the analyzed forfeiture-by-wrongdoing same issue son is 45. The infra. applied by Laquanda as to statements John- cooperation in approximately for with the stand his defense six sisters their Johnson . later. Cooper’s in 2006 trial government months the imprisonment. to his conviction led During Cooper’s testimony, govern- the convictions in evidence Cooper wanted the impeached prior ment him con- with explained supra, because, a victions, as we including to those related against part of his defense significant Queen Jones murder-Richard Terrence charge gave jury assault. The court a stan- Laquanda Johnson murder was prior instruction that dard convictions fact that he had been convict- based credibility to pur- were be considered for sentenced the Terrence ed only. poses jail in at the and was Jones murder Therefore, killing.
time of her he intended instructions,- final jury In after consulta- argue jury to that he had known parties, tion' with the further about, jury no nothing and had involvement instructed that: with, her death. considering [Cooper’s addition to Ter- rence Jones murder when as- conviction] pointed pretrial out Tann and Arnette sessing Cooper’s credibility Mr. a wit- hearings that this was feature testi- trial ness, you may properly also consider mony from some of the same witnesses government in determining whether the Cooper’s 2006 trial. that had testified proof respect has met its burden with argued found They jury when out charged act [the overt the indict- convictions, it Cooper’s would neces- about pertaining ment the Terrence Jones sarily government’s wit- conclude that the required You not are murder].... in this case credible because nesses Cooper’s prior the fact that Mr. accept jury them so. The previous had found conviction for this conclusive offense con- disagreed appellants’ trial court with government evidence that has met and found that instruction tention instead, but, you proof, its burden of jury be sufficient ensure would it[,] may give every piece like other proper evidence, you of the convictions. weight made use feel whatever it’s Moreover, may you receive. entitled Arnette, government, Cooper, and The not conviction as es- prior consider Cooper’s 2006 conviction mentioned any of tablishing the truthfulness of during opening murder Terrence Jones prior who testified in the trial. witnesses informed statements. The distinguish trial court between did conviction the context of evi- describing when how this appellants explaining why Tann were Arnette and During jury. dence could used charged to the Ter- with crimes related government briefly closing arguments, the Queen Jones murder-Richard as- rence convictions, prior again as about the talked sault, Cooper not. men- Cooper but jury why Cooper a reminder conviction, but indicated that tioned the murder, charged Jones’s Terrence was “incorrect.” Arnette prior verdict argue not use the convictions but did person obviously ref- stated that another — guilt. already erencing Cooper con- been —had Admitting Cooper’s Error in that-there were victed the murder and Against Convictions Tann trial had testi- Cooper’s who witnesses Arnette anything” do dur- fied Arnette “didn’t Cooper’s incident. No mention was The admission conviction ing the further Cooper for appellants other than against took Cooper of the convictions until made *53 458 rational that a asserted, beyond a doubt proof as reasonable the matters
the truth of defendants] found the conspiracy would have of an overt act (Eric) they charged, Gardner guilty was constitution the error.” which absent (D.C. States, 55, by case long recognized as law al error v. 999 A.2d 58 United Evi commentary (Edwin) Rules of 2010) to Federal Smith v. United (quoting 803(22), hearsay excep the federal (D.C.2009)). 367, dence 391 prior judgments tion for of conviction.46 poten- error We note had also 59, 19 over Kirby, 174 at S.Ct. 574 U.S. claims. appellants’ severance tial effect ago, Supreme held ¡century Court argu- plausible, Tann While and Arnette’s prior may conviction one defendant’s convictions would en- prior ment that the against be evidence .his admitted credibility government’s hance the cases followed Numerous codefendants. force, practical at least witnesses little .See, recognizing holding. e.g., government’s at of trial. The the outset Vandetti, 1144, 1148(6th v. States 623 F.2d give about witnesses called Cir.1980) Clause (finding Confrontation participation in Ter- Tann’s and Arnette’s 110, violation); Tollardo, 275 v. P.3d State Queen’s rence Jones’s and Richard murder (N.M.2012) (same); 116 Bisaccia v. .cf occa- assault often inconsistent and gave N.J., 307, Attorney 311- 623 F.2d Gen. of testimony Tann sionally exculpatory about (3d Cir.1980) (finding process 12 a due Queen violation). at both trials. testified conflicting and Arnette Although there is involve- no authority type as to both trials Tann had whether this error Clause,47 or offends the Confrontation or the of Ter- his assault murder ment fundamental whether the error affronts Similarly, Shaunta Arm- Jones. rence is process,48 notions of or it due whether strong present attested Arnette both,49 clearly violation the error nothing in crime but scene did constitutional dimension.- Queen. attack on-Terrence Jones gave testimony that was Donald Matthews Therefore, evidentiary error very (identifying him as damaging to Tann analyzed must under constitutional shooter), highly exculpatory but Queen’s error standard as articulated in harmless in- (indicating that he was not Arnette 18, Chapman California, v. U.S. 87 attack). joint volved 824, 17 (1967). may S.Ct. L.Ed.2d 705 We Therefore, alone, standing the admis- only government affirm if “the we find that against convictions Coo- guilt,” Cooper’s sion presented overwhelming evidence-of here, per impact importantly or more if fit is would had little clear id., 803(22) advisory 48. See at 311-12. Fed.R.Evid. committee's F.2d exception note: does include evi “[T]he d person, ence of a third the conviction Crispin, 49. See United States 757 F.2d against offered the' accused in a criminal 803(22) 1985) (“Violation of 613 n. 1 Cir. (5th, prosecution any prove fact essential sus important threatens two constitutional inter judgment contrary tain the A conviction. First, judgment extent that the ests. position clearly would seem to violate jury’s ... conviction reflects another verdict right (citing Kirby v. United confrontation.” right upon process trenches a defendant’s due S.Ct. 43 L.Ed. U.S. prove every to have the element (1899)). charged.... of the offense with which he is upon Second ... --it trenches a defendant’s Bisaccia, J., (Seitz, at 314 See F.2d accusers.”). right to confront his concurring).
459 However, Queen largeT rence incident when the Jones-Richard appellants.50 other ly of the counts mur substantive by allowing mirrored trial court erred admission assault, der, robbery with which Tann purposes for substantive the convictions relating to charged the Arnette, Arnette it also revital against Tann and event, Cooper same of which admitted severance appellants’ that arguments ized pretend that To he been had convicted. Cooper’s required. Conse from trial danger jury there was no the analyzing the quentially, addition Cooper’s considered conviction could have Chapman evidentiary under error as to count conspiracy both harmlessness, must si we standard ignore reality counts substantive is multaneously look to see whether that instructions effective. are always Cooper with joinder of Tann and Arnette States, 211, See Battle v. 630 United A.2d compelling preju most resulted “the (D.C.1993) gymnas (requiring 225 “mental er reversible dice” would constitute tics” of jury may be “troublesome well States, 15 v. United ror. Workman (Oliver) circumstances”); in some Clark v. (D.C.2011) Bailey v. 264, (quoting States, (D.C. United 593 A.2d (D.C. States, 10 A.3d United 1991) (“Jurors course, are, presumed 2010)). instructions, obey the court’s but we have limits, recognized 2. Harmlessness that this its doctrine has conscientious, no no'juror, how matter First, court’s instruc the trial (citations omitted), impossible.”) can do the jury’s consideration tion limited conspira to the overt act in the convictions so, closely examining Even after Jones cy describing count the Terrence the error in the context the evidence potential murder. The effect prejudicial case, that it presented in this we find reduced, greatly if limited to the error was beyond harmless a reasonable doubt under thirty-three act. First, that overt There were court’s Chapman. while the trial count, conspiracy overt acts listed it was flawed in that violated instruction many easily Kirby, clearly of which were sub inform that -it proven did evidence, only conviction as prior stantial one which was not to “consider any establishing of the by single the truthfulness have committed needed been trial,” prior witnesses who testified proven beyond a reasonable defendant and appellate principal which is our on concern conspiracy. in order to doubt establish review, worry appellants’ was the 80 A.3d Gilliam v. (and again ap throughout the trial (D.C.2013). we re We as have recognize, peal) regard prior convictions. jurors peatedly done in the are past, presumed to follow instructions. See Jor importantly, More because dan v. United govern testimony nature (D.C.2011). about the ment’s witnesses who testified
However, incident, Queen the overt acts listed Terrence Jones-Richard Cooper’s convictions count are conspiracy pertained Ter- we convinced simply admitted appellants separate- viction would not have been Even if been had tried against appellants very likely ly, Cooper’s convictions still would substantive Alphonce Cooper is also what should other than (and have as evidence of been admitted —which would) presumably occurred partial Laquanda motive to kill John- Little’s judge to catch the not failed conspiracy count and the trial had the trial son for both the from his in- that flowed involving murder. If constitutional error substantive counts her trials, properly separate struction. handled con- jury appears fact that the impact appellants view the prejudicial no *55 compli through the carefully parsed clear that It was Tann or Arnette. acquitting trials, cated testimonial at both while who testified witnesses evidence— the most serious Tann and both of Arnette testimony very damaging giving generally felony charges arising first-degree murder given highly contradicto- Cooper, as say can out of the there incident —we favorable, testimony as to ry, and often that the possibility is no “reasonable Arnette,51 .evi Therefore, no we see Tann and might have contribut complained dence way jury could have considered convictions. to Tann’s ed” and Arnette’s in a manner harmful Cooper’s convictions 23, 87 824. Chapman, 386 U.S. S.Ct. Arnette, proof than as to Tann and other Instead, guilty are that “the we confident act, ignored of the overt even had in this trial actually rendered verdict[s] credibility portion of misunderstood the to the error.” surely unattributable [were] court’s instruction. the trial 1042, 1049 States, Ellis v. United 941 A.2d is bolstering our conclusion Further omitted) (D.C.2008) (quoting (emphasis that, repeatedly mentioning despite fact 279, Louisiana, 275, v. 508 U.S. Sullivan convictions in the context of Cooper’s prior (1993)). 2078, 124 182 113 S.Ct. L.Ed.2d prosecutorial explaining charging its reasons, that Tann For the same we find argued for strategy, the never “manifestly preju not and Arnette were guilt any appellant on the basis by.their joinder throughout diced” States, Paige v. United those convictions. States, 515 trial. See McAdoo v. United (D.C.2011) 74, (weighing “the 25 A.3d 84 412, (D.C.1986).52 A.2d 420 way in no prosecution fact that ad- Against Cooper 3. Admission ap- as evidence [the conviction] vanced assessing trial pellant’s guilt” prejudice). argues when that the Cooper circumstances, him evidentiary against error light these committed Harris, reasons, government’s Appellants Rushing, 51. and Béaver do For the same Cooper's prior not raise claims related to "overwhelming” was as to Tann and case not However, Queen similarly they were sit conviction. the Terrence Jones-Richard Arnette on the extent that uated with Tann and Arnette to Although related offenses. we have found they charged conspiracy count beyond a reasonable error harmless doubt of the Terrence Jones- that listed events government’s where the evidence was other Queen as overt acts of-the Richard incident see, (James) “overwhelming,” e.g., Hill wise conspiracy. the trial court’s instruction And States, (D.C. v. United 858 A.2d permitted prior Cooper’s to consider be, 2004), necessary- it is not that the evidence against convictions each of them as well as every so in case is unwarrant where reversal Therefore, evidentiary Tann and Arnette. ed, significance if the of the error is sufficient cases, error extended to their we invoke ly satisfy minimal so as constitutional impact our of that review discretion States, 952 standard. See Fields v. United 205-06; See, Gilliam, e.g., error. 80 A.3d at (D.C.2008) (reversing where A.2d States, 982 A.2d Walker United say the court could not the constitutional Nevertheless, (D.C-2009). any argument error did not "contribute” to verdict be Harris, prejudice Rushing, or about Beaver ' materiality cause of the error and way Cooper’s’ prior of the admission of guilt where the evidence of defendant’s is for Tann conviction even weaker than it overwhelming); McDonald v. Harris, Rushing, and Arnette because (examin (D.C.2006) charged were not with the substantive Beaver ing "centrality” both the of the error and the arising Queen of the Terrence Jones- offenses out overwhelming strength” gov "less than Consequently,- the Richard incident. Chapman performing clearly ernment’s case when appellants harm error as to those was- analysis). beyond less doubt. reasonable case, admitting prior judgment conspiracy convic- latitude is wide allowed evidence, tion into evidence for the truth of the presenting it is within the exception against matter as an to the rule discretion of the trial court to admit evi hearsay. yet have not We addressed the remotely dence which even tends to estab adopting Fed.R.Evid. propriety lish conspiracy charged.” Id. (quoting 803(22).53 any Cooper Because error (Kelvin) Holmes v. United harmless, clearly as he was 1259, 1268(D.C.1990)). charged with un- the substantive offenses
derlying the Terrence Jones-Richard Obviously, there was extensive Queen incident, we need not reach that testimony and presented evidence at trial question here. about the 22nd Street conspira Crew and cy count charged indictment; Argument
B. Tann’s Severance
Un- however,
directly
much of it also
involved’
Cooper’s
related to
Prior Convic- Tann. The evidence showed that he was
tion
among the leaders
most
active mem
Appellant
separate
Tann makes
ar-
bers of the 22nd
Tann
Street Crew.
gument, for
appeal,
the first time on
illegal
involved in the
heavily
drug traffick
by
severance was
warranted
the size
ing that was the bulk of
uncharged
“spillover”
case and the amount of
evi-
government
offenses elicited
dence that
it impossible
jury
made
for the
directly
in
involved
three of the four mur
“not to have
been influenced
the sheer
ders.
volume and interrelatedness of the testi-
As in Castillo-Campos, it cannot be said
mony.”
argument
is
rooted
Tanris
majority
appellants’
of other
“bad
claim that much of the evidence "of his
pertain
acts” did not
to Tann or had an
codefendants’ “bad acts”
not
would
have
improper “spillover
disposi
effect” on the
been
sepa-
admissible
he been tried
tion of his
assuming
case. And even
rately.
might
some of the
evidence
have been
general rule
“The
is
defen
independently
separate
in a
tri
admissible
charged
jointly committing
dants
with
Tann,
against
al
would not have
severance
McAdoo,
together.”
crime are to be tried
required.
been
See Johnson v. United
er
effect.”
Admitted
wrongfully procured
unavailability
he
Wrongdoing Theory
purpose
pre
of that witness with the
venting
testifying.”
the witness from
Ro
Beaver, and
Appellants Cooper,
berson,
1095;
A.2d
v.
961
at
Devonshire
by
Tann claim that
erred
the trial court
(D.C.
691
168
United
A.2d
by Laquanda
admitting several statements
1997).
course,
theory
Of
limited
forfeiture-by-wrongdoing
Johnson under
person
to situations where the defendant
theory.
Laquanda made
Specifically,
ally
made
witness unavailable. “[I]f
sister,
number
statements to her
Shaun-
conspired
the defendant
with another to
mother,
Armstrong,
ta
Karen
her
testifying,
prevent the
from
witness
forfei
Bolling, regarding
Kyara
her
desire
ture
whether it was the
ensues
defendant
testify
Cooper
out
against
Johnson not
co-eonspirator
himself
another
who
by
22nd
fear
retaliation
Street
long
witness
so
made the
as
unavailable
Bolling
Laquanda
testified that
re
Crew.
the actor’s
within
misconduct ‘was
ported to her the
of a
contents
conversa
scope
conspiracy
reasonably
in which
Cooper
tion that she had with
” Roberson,
foreseeable
the defendant.’
money to
Cooper
drugs
offered her
Further,
(quoting
Laquanda significant Johnson had value witness, even as a after Finding D. The Trial Court’s of a Cooper had of Terrence been convicted Conspiracy Predicate As Little testi Jones’s murder in 2006. fied, Arnette. va illegal dispute she about ac had information Tann. lidity of trial court’s determination that by the Street tivities 22nd Street 22nd Furthermore, predicate conspiracy been Laquan- estab had. Crew.members.54 justify lished to admission of Cooper’s eoconspirator statements da’s about Tann’s justice, in to influ statements in furtherance of conspira efforts to order obstruct *58 trial, testimony cy. given her and At the of ence sister’s therefore outset the num Cooper’s trial could of uncharged) coconspir- the outcome of ber and (charged cross-examination, objec On Cooper's hearsay 54. defense both Confrontation Clause and attempted to elicit from admissibility. counsel Little that tions to to Dreher's statements only Laquanda "the reason” was killed Laquanda were admissible under the cocon- cooperation past was retaliation for her exception hearsay spirator to statement the government, .any opposed with the fu- as found, judge rule. trial was As the there disagreed gang. ture threat to the Little with independent, nonhearsay sufficient premise Cooper’s the of defense counsel’s presented that Dreher was a member of the questions and testified was that the murder a 22nd Street Crew and member of con the also because could have "[the sisters] been charged spiracy in this case. This evidence telling somebody gang], telling [in the on testimony by gang form of came the former thing.” any other Matthews, McDuffie, Andre Donald members Evans, Honesty, Alphonce Travis Devin Cooper’s argument brief makes the related high-ranking gang Little that Dreher was a Laquanda another of Johnson’s state- appellant member who recruited Harris and ments admitted into evidence under the for- crew, drugs feiture-by-wrongdoing theory inadmissi- others to be members sold members, Laquanda hearsay. because it was ble double with 22nd Street other Crew sister; Armstrong, her told Shaunta that 22nd gang was influential because Crew member Eric stated to Street Dreher willingness engage in "acts of violence” Laquanda "get Kyara she off should Additionally, behalf crew. of the Dreher’s 22nd Street and never come back” because reasonably statements could have been Cooper looking "goons had there” out furthering conspiracy’s goal viewed as Although Cooper her. correct justice by wrongfully obstruction discour testimony by hearsay, Shaunta was double aging Laquanda testifying Cooper’s from at hearsay exceptions there were both levels. States, 481 v. United trial. See Butler supra, Laquanda’s As discussed statements to A.2d 431, (D.C.1984). Shaunta were admissible because of forfei- ture-by-wrongdoing, which acts as waiver to pur- been established had alleged conspiracy to have government ators that hearsay issue. of the poses of the 22nd in the activities participated charged conspiracy, Crew and Street trial court found: concerned, Specifically, justifi- judge trial controlling cation, tightly the admis- about among other conspiracy, awas [There] But- coconspirator statements. See sion package [resell] things, purchase, judge ler, (holding the trial at 439 narcotics, vio weapons and to use illegal determining the admissibil- responsible for conspiracy safeguard lence in order coconspirators’ statements ity of those who are against retaliate jury might danger that the “the avoid and who conspiracy[] members of these statements on the basis convict conspiracy’s to invade the attempted had admissibility dealing with the first
without reputation turf, promote question”). its members conspiracy and showing monitor the to better order neighborhood.[56] 22nd Street or- conspiracy, the court predicate of a court’s decision “The trial to “bifurcate” its government dered testimony as nonhear coconspirator “conspira- admit opening with a case-in-chief absent an abuse say upheld be ruling from the will followed cy” phase, States, 76 Harrison v. United discretion.” as whether (D.C.2013). coconspira “[A] establishing predicate burden of met its may be admit assertions cocon- tor’s out-of-court the identities conspiracy and only judge if the finds it their truth government moved ted for before the spirators, (1) conspiracy not that likely more than phase of its case into a “substantive” (2) existed, had a connection defendant coconspirator statements could wherein (3) coconspir conspiracy, and hearing from with the After admitted evidence. during the ator the statements made gang previously discussed “insiders” con Matthews, (Andre McDuffie, of and in furtherance Devin course Donald Jenkins, 989-90. Little), 80 A.3d at Evans, spiracy.” Alphonce police *59 the trial court’s rul Appellants challenge illegal drug testified about personnel who prongs of the cocon ing first two court as to the activity involving appellants, the spirator rule. predicate of a statement that the existence found conspiracy its members protect the and judge of a ... The trial found the existence similar, charges, conspiracy but not and predicate for criminal ... from conviction charged in 1 of the to one Count against anyone identical the who assisted law to retaliate indictment, i.e„ appellants and others investigation into officials enforcement justice agreed obstruct and to assault "to conspiracy of the prosecution of members anyone contrary whose interests were to kill The trial court did and their associates.” and their associates.” those the defendants taking approach findings. to his err in found, Instead, judge appears to the trial conspiracy forms the basis ad "The issue, evidentiary purposes that the of the mitting coconspirators’ statements need not goals predicate conspiracy tracked of the conspiracy for which the defen be same the "Objects Conspiracy” closely the of the Arce, v. is indicted.” United States dant page supersed- second of the as listed on the Indeed, Cir.1993). (5th F.2d ing for acts of vio- indictment: to “retaliate conspiracy may of a in furtherance statements conspiracy perpetrated against lence the conspiracy is no where there admissible profits generat- protect illicit its members ... charged in indictment at all. the by conspiracy’s ed the involvement the (6th Ayotte, F.2d Cir. States involving in acts ... members and associates 1984). trafficking ... and in controlled substances ruling the came before items made in Because court’s were furtherance of a con- put its “substantive” government spiracy against appel- the and admissible all case, judge the did not have the benefit lants. now Appellants appeal ruling. that went to the murder the facts required After court government the the Nevertheless, judge made charges.57 the extensive redactions to make the mate- findings appellant as to each detailed CD, rap rial on government played membership conspiracy his in a that are approximately twelve minutes of Rush- by by the facts and not shown supported ing-Smith songs. According testimony, clearly Tann Arnette to be erroneous. songs being were sold played (accepting findings of Id. the factual openly lyrics on 22nd song Street. The they clearly the trial unless are erro Deuce,” made reference “The “Deuce reviewing an abuse of neous when under Mob,” Gunz,” “Young and the all names standard). judge trial The discretion affiliated with the 22nd Street The Crew. goals conspirators found lyrics also gang referred nicknames accomplished through the establish “were Beaver, of Rushing, Cooper, and Arnette. ment of adherence to and enforce [and] Furthermore, lyrics glorify tended to group by of rules both-threats ment criminal activities that part were findings suffi judge’s and violence.” The members, lifestyle of the 22nd Street Crew ciently established associational con drug including dealing, killing government appellants, between the nection different informants, killing rivals. joint support drug traf and their wife, government also Tann’s called Crew, activities of ficking the 22nd Street Tracey, give lyrics rap evidence about including the of its base of maintenance According written Tann. that were violence, through acts of such operations lyrics Tracey, part pro- of a rap was no that there abuse of discretion his ject for Tann aspi- which had commercial predicate on the con ruling existence of lyrics rations. Tann’s included references spiracy.- 22nd Street Crew’s nickname “D.E.U.C.E.,” drug dealing, and violent Lyrics Rap Webpage E. and Beaver’s against lyrics crime “snitches.” Tann’s trial, government At introduced the arguably specific also made references (1) following against appellants: evidence the details Leslie Jones murder containing songs performed by CD rap on by government in its were relied coconspirator, Rushing and an unindicted closing argument culpa- of his Smith; (2) rap lyrics written Michael bility.58 Tann which were found and read wife, (3) Tracey; Finally, jury by put the con- on evidence *60 a webpage webpage stip- of that had of “Black Planet” tents been created a that was by published ruled ulated to have been created posted and Beaver. The court and by pic- webpage that within these the statements contained Beaver. featured opinion, he with 57. In our this evidence would -Jonesmurder where murdered Jones strengthened already significantly down, gun an alleyway then ran an near a and well-rea- ruling. soned known, "Dog Alley.” Tyrone 22nd as Street witness, Curry, government testified that he a lyrics 58. Tann’s read-: "Screamin’ D.E.U.C.E. running a man who looked like Tann saw Allday I Death Val- Southsidef] hail from shooting of from the scene the Leslie Jones Bang dog Alley." my pistol deep ley[.] first dog alley on 23rd "toward the Street.” closing argument, government arguéd the the Leslie these words Tann described that Here, “surrounding circum the making signs hand of Beaver affiliat- tures that adoption” are stances the claimed ed 22nd Crew and mes- the Street sang lyrics the Rushing Smith and Michael describing himself sage Beaver from recording rap purpose songs to for im- Beaver “DEUCEDEUCEBANGA” purchase that and CD was available ready he plied webpage that was on the no publicly. There was played any against “dudes” commit violence Rushing actually or or wrote Smith he found to be “snitchin.” songs., to the produced lyrics of the attack admission Appellants lyrics Appellants were argue Rushing rap lyrics sung by and Michael “artistic, solely created entertainment (1) grounds: there Smith on several a truthful not as recitation purposes,” and or that either Smith insufficient evidence or of events on 22nd the attitudes Street (2) lyrics; Rushing authored the Smith or singers. the producers either While proven coconspirator, there- was not a may certainly have been -a songs these singing of the performance fore persons form artistic entertainment song lyrics not have reflected state- could Street, listening some entertain- on 22nd conspira- course of ments made ment and some is is fictional intended (3) cy; songs lyrics to the themselves of true and actual events. retelling conspiracy; not in furtherance were lyrics song may well be intend- any And (4) admissible, if otherwise even eyes of the relay ed the truth unfairly prejudicial. Ap- song lyrics were out, singer. points As the pellants’ complaint about Tann’s primary songs, lyrics primarily in these were “the lyrics webpage individuals, Beaver’s is that first-person and described places, specifically made in furtherance related statements and activities We find these 22nd Street Crew.” conspiracy. upon which
facts were sufficient foundation Authorship Rap 1. an unambigu- establish “there was
Lyrics on the CD Rushing assent” ous Michael Smith in the lyrics contained statements “A an party may make admis Blackson v. they sang. See United by adopting sion acquiescing (D.C.2009). 979 A.2d party statement Whether another.' Whether, 2. Michael Smith has is a adopted the another statement Coconspirator, was a preliminary question fact trial for the judge, by considering which determined as a Michael Smith was identified surrounding and the context circum aby member Crew 22nd Street .of adoption.” Harris stances claimed number of witnesses: government’s the. 116-17 Matthews, Evans, Alphonce Donald Devin (D.C.2003) (citations, quotation internal Little, Tann, Travis-Honesty, Tracey omitted). marks, alterations While Darryl Honesty and Travers tes Travers. require explicit rule “does tified that a “hustler” who sold Smith was f adoption,” require o statement does from until narcotics on 22nd Street of a party’s “some manifestation intent testimony reasonably 2007 or This *61 statements, or of adopt another’s evidence in membership a con established Smith’s minimum, the the truth party’s spiracy, among belief in of the state of at a members Clark, illegal Bridges ments.” v. to sell narcot Street Crew the 22nd (D.C.2013). testimony was ics. that Smith Matthews’s group “coming of a of the part songs, men who were statements in the in rap up” organization, lyrics, no later than Tann’s and on Beaver’s webpage, Beaver, with other members such as crew Crew, made reference the 22nd Street from also established reasonable basis the members 22nd Street Crew who judge which the trial could infer Smith’s part charged conspiracy, of the were agreement support with and of the more “the structure of the conspiracy and the within aspects activity (cid:127)violent of criminal importance [the] members’ continued testimony of 22nd Street Crew. The the participation loyalty.” of the core gang acting gov- former as the members government’s argument “in furtherance” in- ernment was members witnesses is: organization in creased their influence the (1) [G]iven the CD was sold on 22nd against ri- by committing acts of violence by Street and was conspira- listened vals, snitches, persons and other at odds (2) alike, tors non-conspirators the organization. the interests of the page was'open public web the view government Once the showed that Mi internet, (3) aspired Tann predi was a chael member the Smith produce rap a commercial CD with his conspiracy purposes hear cate the lyrics, statements the at' issue could be say exception, required it to show promoting viewed as reputation conspira that he was of the still a member stature of the in conspiracy the commu- cy later See time. United States nity by spreading conspiracy’s mes- Moore, (D.C.Cir. (Rodney) 651 F.3d sage of violence and intolerance 2011) (“[0]nce a becomes a defendant challenge it. those who would [Citations conspiracy, member of a he remains and alterations omitted.] affirmatively until member he withdraws argument persuasive We find this line Therefore, conspiracy or the once ends. essence, supported by In case law. one government proves that a defendant message by coconspirators’ announced an ongoing was a member conspiracy, statements was internal and one was ex- proven has the defendant’s continuous ternal; message the internal furthered membership in that unless and conspiracy conspiracy by boosting the morale and withdraws.”) (citation until the defendant reputation through coconspirators omitted). There no of with evidence activities, glorification Its while by drawal Smith. there Consequently, message external the likelihood reduced reasonably was sufficient show cocon- outsiders with the interference sang CD rap lyrics Smith spirators’ affairs. during predicate his involvement (Brian) We held Williams v. United conspiracy. (D.C.1995), that if
3. Statements in Furtherance reasonably interpret statement “can be Conspiracy of the as encouraging person] ed ad [another conspiracy or vance serve to enhance
Appellants’
argument
third
is that
conspiracy,
person’s usefulness
lyrics purportedly
“the
authored
Bea
then,
statement is
furtherance
sung by Rushing
ver and Tann and
those
(internal
conspiracy
may
and Michael
be admitted.”
Smith were inadmissible be
omitted);
quotation
they
cause there is no
marks
see also Car
evidence that
(“[I]f
son,
sung
the state
written or
468 Cir.2011) 480, (11th (concluding or en F.3d 493 conspiracy, to advance the as
son at trial was person’s playing of a hancing co-conspirator rap or other that the video a lyrics then the conspiracy, “heavily prejudicial” “[t]he because' usefulness are conspiracy and of unfair danger statements further the a substantial presented violence, those admissible. statements include they Such because contained prejudice co[-]conspirator’s a con ... motivate sex, misogyny promiscuity, and profanity, (internal quotation participation.”) tinued reasonably could understood omitted). Further citations marks and lifestyle” a violent and unlawful promoting (‘not more, held numerous courts have clearly probative [the defen while in warnings by coconspirators threats and Cheeseboro, 346 guilt”); v. dant’s] State tending message potential send (find (2001) 526, 300, 552 S.E.2d 313 S.C. they penalized witnesses would be value” ing probative that the “minimal with the are cooperating ad rap containing a document the defendant’s missible under the coconspirator statement “far its unfair lyrics outweighed was See, e.g., United v. rule. States Westmore impact appel prejudicial as evidence land, 302, (7th Cir.2002) 312 F.3d 309-10 character”). bad lant’s (statements making admissible because in lyrics may “rap in mind that Keeping coconspirators pre them the intended metaphor, and other employ exaggeration, conspiracy by frightening poten serve the can abstract [ ] artistic devices involve witnesses). Similarly, that the tial we find ubiquitous representations of events (contained in both the internal statements State, (Deyundrea) storylines,” Holmes message lyrics) appellants’ and external 415, Op. 129 Adv. P.3d Nev. 306 419 coconspirators made and introduced (internal (2013) quotation cita marks and advanced, in fur into evidence and were omitted), proba tion we must consider of, conspiracy. therance juris tive value of other evidence. Prejudice 4. Unfair dictions, question turned has specificity lyrics with describe
Appellants’
final contention
which
offense(s)
surrounding
facts
rap lyrics
“sub
songs
that the
were
charged.59 Similarly, we endeavor
de
stantially
prejudicial
probative”
more
than
(as
rap lyrics
to what extent the
particularly
because the content
termine
was
be con
shocking
webpage)
and violent.
has nev well as
should
This court
Beaver’s
s
of vio
prejudicial
“autobiographical
er discussed the
effect
sidered
statement
rap lyrics,
Stuckey,
have.
though
lent
other courts
acts relevant
case.”
253
See, e.g.,
Gamory,
Fed.Appx.
so as to avoid
States v.
at 483. This is
where,
blankets,
(no
alley),
Compare
body
dumping
at 417-20
error
it in an
id.
issue,
Cheeseboro,
(error
rap
lyrics
defendant-authored
552 S.E.2d at
"jackfing]”
described
defendant
someone
pool
leaving
in a
where references to
bpdies
wearing
parking
in a
their necklace
while
lot
vague
fingerprints
blood without
were "too
mask,
a ski
defendant was accused
support
context to
the admission”
accosting
parking
two men in
steal
lot and
rap lyrics
lyrics
"gen
because the
contained
ing
wearing
one man’s chain
necklace while
only);
glorifying
see
eral references
violence”
mask),
Stuckey,
ski
United States v.
Hanson, Wash.App.
also State v.
(6th Cir.2007)
Fed.Appx.
(unpub
482-83
(error
(1987)
where the
P.2d
n. 7
(no
lished)
rapped
error where
defendant
logi
writings
defendant’s
fictional
‘snitches,’
that he "kills
holes,
fills
bodies with
their
attempt
cally
no
relevant when
"[t]here
blankets,
wraps
dumps
them
about
[the
show
wrote
defendant]
...
them in the
road” and the defendant
charged”).
an incident so
to the crime
similar
man,
shooting
wrapping
accused of
*63
“being
partial
the undue risk'
the statements
against
announced
verdicts
the re-
maining
pro
appellants,
or misused
criminal
two
misunderstood
Harris and Ar-
jury
pensity
(Deyun
act
nette. The
found
bad
evidence.”
Harris and Arnette
drea) Holmes,
(internal
guilty
conspiracy and told the
Given type and what of court is of'them, this? I wasn’t hotly was contested each there_ near_ [Njowhere even I probative value of the of this content evi- get guilty found I’m innocent. God also, dence was Considering substantial. with, going challenge y’aHfor this. I’ll see CD, regard lyrics to the on the y’all in heaven.... I’m innocent. How the trial carefully court reviewed each get the fuck I guilty? found ... That’s track of unfairly preju- the CD avoid an fucking crazy. (such songs dicial effect that 45 —that’s minutes minutes, were reduced more than 30 While Tann making was these state- and some tracks were in their eliminated ments, thé court attempted unsuccessfully entirety), we believe that the court did not for call order. The marshals escorted abuse its discretion when it-found out Tann courtroom and into the prejudicial effect of the evidence did not holding judge cell. As dismissing substantially outiveigh probative its jurors, val- he they told them that should Legette ue.60 See A.3d understand that the courtroom could be (D.C.2013). Therefore, place, 388-89 we re- they emotional were not to let (cid:127) ject appellants’ claims. anything just happened that -had impact their remaining deliberations. Harris and F. Tann’s Outburst Arnette-immediately moved a mistrial arguing that preju- Tann’s outburst would Appellants appeal Harris and Arnette jury against dice the them,'especially since denial their motions for a mistrial jury already found Harris and by appellant based an “outburst” Tann guilty, Arnette conspiracy rooted following Approximately his verdict. two. justice obstruction of against violence deliberations, weeks beginning after the participants legal process. The trial jury against ap- returned full verdicts court denied their motions. pellants Rushing jury and Beaver. The full against appellant announced its verdict following dáy, jury while Cooper following day. days Eight la- deliberations, the court held a more exten- ter, a partial returned verdict hearing sive oh surrounding the facts Tann,. against including verdicts on his Tann’s outburst.- The indicated time, charges. murder At the same it up, had observed Tann speak loud- stand probative 60. While there is no of discretion on abuse Evidence doubles value. as- record, easily we could envision a case type confusing of art will often be a mixture lyrics, poetry, where or other statements in a Therefore, of truth fabrication. trial and. traditionally form understood to artistic very carefully courts must scrutinize such ma- expression sufficiently specific were not prejudice. terials statements unfair charged important crime so as to have such jurors” expressly stated that shirt number of ly and untuck his using profanity, Furthermore, they escorting tie. Prior to concerned. loosening while *64 courtroom, they that asso- jurors indicated one marshal none the Tann the out of with ciated Tann’s statements the other Tann but not fire. at pointed his Taser did defendants. Tann’s conduct was The court found that threatening jury de- not or violent This court reviews .the denial the Fur- spite afterlife. his reference to a mistrial and the trial óf a motion for- ther, from no court observed reaction the exposure jury into to investigation court’s significant con- constituted jury the that for an abuse of dis evidence unadmitted incident, the Throughout cern. Arnette. States, v. 932 cretion. United Ransom seated and did Harris remained 510, (D.C.2007); v. A.2d 517 Al-Mahdi react. States, 1011, A.2d 867 1018-20 United hearing, At both Harris and the motions (D.C.2005). to exposure A jury’s unadmit their concerns Arnette reiterated about implicates ted Sixth a defendant’s requested prejudice, that the and Harris impartial jury. to an right Amendment jurors dire. made available voir States, Medrano-Quiroz United 705 See v. request to specifically declined (D.C.1997). Arnette A.2d 649 voir The court denied Harris’s re- dire. here, “Where, the impartial as quest reasoning danger that the of voir ity jury] plausibly has been called [the might prob- dire create was that more question, responsibility into it is the safety triggering lems than it solved hearing to judge trial a hold determine jurors in the the court concerns did has allegation of bias merit.” whether the not believe that they had. claim, “it is the Upon govern Id. such a later, jury days the Several returned ment’s to demonstrate that burden Tann, involving of its verdicts remainder [jury’s] with extraneous informa contact jury acquitted charges him several non-prejudicial.” tion was or harmless In and convicted him of several others. States, (David) Hill v. United subsequent days, jury sepa- returned (D.C.1993). evidence of “[T]he against Harris rate verdicts and Arnette. high degree justify record must of confi Harris; acquitted Unlike Arnette juror partiality dence that the likelihood charges against number of him. Al-Mahdi, has been 867 A.2d rebutted.” Otherwise, trial, is obliged for a post-trial
In a motion new “the alleged spoke grant other adequate Harris’s counsel she declare mistrial” jurors with all of relief. Parker v. United 757 A.2d after verdicts had (D.C.2000). motion, According Although hearing been rendered. jurors they required, type stated that believed Tann extent “the against investigation trial into improper made a court’s death threat contact they outburst- and other- are the courts course confided discre only -for consistently-threaten wise Tann tion abuse.” observed reviewable .and Leeper throughout course of the witnesses . (D.C.1990) per
trial.
is “no
response,
noted
There
se rule that
jurors
juror
speak
questioning
that not all of the
individual
of each
is al
remained
required,”
trial
attorneys
ways
judge
with
and not all of
“the
has
those
'
speak
fix the
expressed
proce
did
the same view.'
broad discretion to
exact
While
threat,”
by balancing
a few
the need to make a
a “death
dures
referred
jurors
against the concern that
inquiry
were not worried —some chuckled sufficient
discussing
prejudicial
Tann’s
“a
inquiry
when
statement and
create
effects
by unduly magnifying
importance
willingness
of an
reach out
the court with
Al-Mahdi,
insignificant
questions
occurrence.”
Finally,
concerns.
the court
(citations
A.2d at 1019 n. 13
properly
and alterations
considered the risk that further
omitted).
investigation would turn.
insignificant
jurors’
matter in the
signifi-
minds into a
Harris And Arnette
argue
cant
possibility
within
.that
well
oner—a
jurors might have
Tann’s
viewed
state-
his discretion to take into account.63 Al-
against
ments
a threat
paired
them and
Mahdi,
witnesses
then housed
adopt
reasoning
Cohen’s
because we hold
“Our
of a
court’s
that the trial court
review
trial
did
abuse its discre
in making
finding
denial of a motion to
tion
the factual
suppress is limited.”
that the
jail
search of
Joseph v. United
Beaver’s
cell was not
con
(D.C.2007).
ducted at
prosecution,
the direction of the
“Our standard of review
therefore,
necessarily
trial
ruling
on a motion to
not a search
court’s
for purposes of
Fourth
Amendment.
suppress tangible
requires
See United States Hogan,
539 F.3d
the facts and all reasonable inferences
(8th Cir.2008) (“Even
923-24
if this court
must
therefrom
be viewed
favor of sus
adopt
],
were to
(Robert)
apply
[Cohen
does not
taining
ruling.”
the trial court’s
here, as the search of [the
*67
cell
States,
defendant’s]
839,
Howard v. United
instigated by jail
was
security
officials for
(D.C.2006) (alteration omitted).
844
“Es
solely
reasons and was not
to
intended
sentially, our role is to ensure that
trial
the
case.”).
prosecution’s
bolster the
court had a substantial basis for conclud
ing that no constitutional
oc
violation
noted,
As the
court correctly
trial
re-
curred.”
v. United
994
Kaliku
gardless
whether the search occurred
765,
(D.C.2010) (internal quota
A.2d
780
24th,
bn
dispositive
December 23rd or
the
omitted).
tion marks
fact is that both
Mayberry
Detective
Investigator
consistently testi-
Ashmeade
Palmer,
517,
In Hudson v.
468
525-
U.S.
by
that
the search was
fied
conducted
26,
3194,
(1984),
104 S.Ct.
We
not overturn
will
to
opinion,
long-standing
this
ties
out
ings
conjecture. The trial
on such
based
Andre McDuffie
portions
the 22nd
Crew.
credit
of either
Street
court was free to
the first
any
one of
discounting
was
these witnesses
testimony while
witness’s
government in this
Bragdon
by
witness
v. United
called
inconsistencies. See
(D.C.1995)
testimony,
govern-
During
(per
case.
curiam);
him
he knew Rush-
Corp.
Bose
ment asked
whether
see also
Consumers
Union,
that he did and
he
ing.
said
S.Ct.
McDuffie
U.S.
(“When-the
(1984)
responsible
Rushing’s training
was
for
testimo-
L.Ed.2d
Rushing
a new
believed,
gang
the 1990s
was
ny
trier of
when
a witness
Then,
testified that he
disregard
Normally
fact
member.-
may simply
it.
McDuffie
taught
gang-related
number of
testimony is
a
Rushing
not considered
discredited
skills,
contrary
including
to kill.”
drawing
for
“how
sufficient basis
conclusion.”).
has no
Beaver
Accordingly,
objected
“how
appellants
Several
grounds upon
Fourth Amendment
which
testimony
kill”
a.
in Andre
break
cell
challenge
prison
search of his
eventually
McDuffie’s
examination
discovery
led
second
Appellants’
moved
chief
mistrial.
Thus,
.
court
not err
letter.
the trial
did
objection
the inference to be
was
denying
suppress.
his motion
testimony
drawn from this
Crew,
-22nd
“get
order
in” to the
Street
Misconduct,
Uncharged
Evidence
kill or
gang
otherwise
member
Testimony
Incarceration,
Fear
commit
There-
serious acts
violence.
Testimony of Andre McDuffie
a.
fore, all
had been labeled
appellants, who
Tann,
Harris,
Rushing,
Ar-
Cooper,
government as
22nd Street Crew
members,
nette
claims related
the admission
make
killings
committed
must have'
govern
of “other crimes” evidence
charged murders. The
unrelated to the
trial,
ment. Prior to
in
appellants’
trial
motions
denied
put
formed the trial court
its
However,
agreed
intent
mistrial.
tes-
activity
of criminal
outside the
timony
unfairly prejudicial and or-
*68
charged conspiracy in
time frame of the
testimony
judge
stricken. The
dered
background
order to
to the con
show
gave
following
then
curative instruc-
-
spiracy
relationship
and the associational
tion:
coconspirators.
among appellants and their
regard
Mr.
that with
McDuffie testified
court,
trial
from
reviewing
The
after
cases
to Mr.
he
he
him
Rushing,
said
saw
jurisdictions, particularly
other
United
every
then he
he
day, and
said
sold
Mathis,
(D.C.Cir.
v.
“In
conspiracy prosecution,
goal
rial
of establishing the associational
usually
allowed consid
relationship
between the members
leeway
erable
in offering evidence of other
conspiracy, found that the
value
probative
‘to
jury
offenses
inform the
back
kill” testimony
the “how to
was substan
ground of
conspiracy
charged, to com
tially outweighed by
danger
of unfair
story plete
charged,
the crimes
explain
prejudice.65
great
help
illegal
“[W]e-
owe
deal
how the
relationship
participants in
deference” to the trial court
such a
between the
” Mathis,
Jenkins,
developed.’
the crime
at
finding.
F.3d
999.
Second,
part
Drew v.
teachings.
oweWe for reviewing its motions mistrial. trial court when ence responsive of a remedial measure selection Testimony Darryl Travers b. testimony. Unit problematic See such McLendon, F.3d 378
ed States “other Rushing separate makes a (D.C.Cir.2004) (“[W]e not lose should 1113 testimony argument based on crimes” judge who of the fact that the same sight witness, Darryl government another bal initially weighed 403] the [Fed.R.Evid. direct-examination, Tra During Travers. evidence, of the against ance admission to statements made reference vers subsequently [evi determined that being about Rushing had made him mistrial”). “A not warrant a jail dence] did same of the housed in section’ step to be' remedy is a mistrial severe Gray. Stephen Crew 22nd Street member —a to be possible, cross-examination, and one whenever avoided various’ defendants On manifesting only in a circumstances fact taken out that Travers himself brought v. United necessity Najafi therefor.” in order prison had been released from States, (D.C.2005); investiga government see A.2d assist the with its (Richard) response 639 tion. In to this bias cross-exami Clark v. United also re-direct, nation, elicit (D.C.1993) on (“Assuming, A.2d in from Travers that if he ed remained argument, evidence] con [the sake of concerns prison safety he evidence, would had ‘other we con stituted crimes’ - Appellants -cooperator. as- a government prejudice in so did not [it] clude result objected and moved-for a mistrial as to render trial court’s refusal great if Tra- grounds that the inferencé was that . mistrial an of discre grant a abuse jail, in be harmed vers remained he would tion.”). appellants. trial court one mistrial, it sus to order but declined Here, testimony the offending was objection tained and instructed very brief at the outset of reference was no that Tra jury that there evidence Veney v. extremely lengthy trial. Cf. any safety would have concerns vers (D.C. 828-29 jail. he remained (other harmless, 2007). crimes objectionable testimony ¡find because part, no We abuse discretion based trial). three-day heard on the first day of Darryl judge’s Tra- the trial treatment of. repeated The reference testimony. As to reference vers’ Travers’ witnesses, ar or its and not government, incarceration, tq Rushing’s -of the fact gued closing. gave And the trial Rushing minimal prejudice there was immediate, strong, and cura very almost many jail played of his calls were because stating instruction that there was “no tive jurors jury, at which time taught McDuffie had evidence” Andre Rushing was inevitably became aware McLendon, Rushing to kill. See F.3d during leading up period incarcerated (no denying Moreover, abuse discretion to the trial. neither Travers’ exposure evidence, for mistrial a motion based on testimony, nor linked any other Fed. any to evidence determined violate Rushing’s incarceration brevity of charged 403 because of “the of which he R.Evid. offenses *70 testimony offending clarity case, Laquanda and the particularly murder .the instructions”). Frost, court’s Keisha [curative] district and assault of Johnson Therefore, govern- court did the cehtral we find that the trial which was event (David) Rushing. by made to him a woman against case named' Tamika ment’s Bradshaw, States, Cooper Washington murdering v. United 760 A.2d denied Ter- (D.C.2000) lim- (prejudicial effect rence Jones and testified he first no as to “there was ited where evidence shooting learned about Terrence Jones may appel- what crime resulted girl from “[t]his Tamika.” Coo- name[d] opposed lant’s incarceration” as supposed per’s Cooper defense counsel then asked 'charged situation the crime “the where what Bradshaw had The said him-. same of- prior arrest involve the government objected admissibility omitted). fense”) (internal quotation marks (although Bradshaw’s exact statement it testimony fear of And the about Travers’ specify grounds). not did The trial remaining even if prison, improper, bench, did court tó parties called the thé grant court to require not trial Cooper’s defense counsel stated that Brad- testimony motion for mistrial. a hearsay shaw’s statement was not because very lengthy in a a brief reference trial Cooper’s it was to show offered state by trial court’s fully mitigatéd and was mind and because “it’s [Coo- relevant how . Consequently, curative instruction. we per] found about shooting.” With- out Rushing no relief on the basis of grant explanation, out the trial court sustained claims. v. United these See Chase objection. Cooper’s defense counsel (no (D.C.1995) 1155 n. 8 Cooper then asked he was when he where by deny- abuse discretion trial court “became a aware that there had been ing motion for mistrial where shooting.” Cooper replied that he was testimony attempted to elicit “fear” be- lot ... parking “[in] the from the [a]cress cause denial of motion was not “unreason- court” on 22nd,Street. basketball unfair”). able, irrational Assuming that the trial court should Cooper testify have allowed as to Brad Evidentiary Rulings During shaw’s statement under the state-of-mind Cooper’s Case-in-Chief exception against hearsay, to the rule her Cooper argues that trial vari- court’s very im precise statement was of minimal evidentiary rulings ous erroneous collec- no portance, and there was harm because tively deprived right present him of the Cooper to present was able the substance .complete defense. See Heath United conveyed of what Bradshaw him. See (D.C.2011) 26 280-81 Terry, United States v. 702 F.2d (“[Wjhether an erroneous exclusion de- Cir.1983) (2d (error in suppressing evi fense violates the defendant’s dence harmless where its essence was right present constitutional defense by conveyed jury nonetheless tc>the de- a rea- depends upon whether there exists counsel).' fénse probability that sonable the omitted evi- ... led dence would have en- by Laquanda b. Johnson Statements that did tertain reasonable- doubt Cooper also claims that the exist.”) omitted). Af- (emphasis otherwise admitting in not statements erred claims, examining reject his his ter we allegedly matter made the, truth argument. him in Laquanda Johnson to the course a. Statements Tamika Bradshaw La Cooper conversation between following Terrence Jones Cooper argues quanda trial court effect, were, him, during shooting. The statements prevented. erred when in- Cooper she testimony, repeating from a statement knew *71 Cooper at- prison guard,. Elzie. shooting because she Brandon volved a-parking seen in lot on 22nd Street him tempted to elicit from fact Elzie the that the time. had told he not be in he Elzie that could jail of the part the same as Freddie Lee trial court
Cooper argued to the that government Bailey Bailey cooperating had elicited cer- was a because the because by Laquanda Johnson to tain statements witness, and therefore Elzie escort should forfeiture-by- his*'disadvantage under a part jail. This testi- him another wrongdoing theory, Laquanda’s state- mony by Cooper to show that was offered should, him also be ments favorable to Bailey’s testimony, was that Cooper which registered a government admitted. The him inculpatory statements to while made hearsay objection. agreed trial court The cell, they together in a holding were was government the forfeiture- untrue. hearsay by-wrongdoing exception advantage designed rule was not hearsay objec- government The raised a therefore, wrongdoer; statements tion, arguing Cooper’s “self-serving” for their truth and were admissible being statement offered for the truth they instructed Cooper permitted was not fact purposes only. admissible state-of-mind presence wit- court again admissibility limited the Attempting negotiate accept- ness. Laquanda’s to their effect on statements ground, the trial court able middle asked Cooper’s Cooper state of mind when if Cooper’s counsel he would be defense sought repeat statements her if asking Cooper amenable to Elzie in- another explaining context individu- him “something” that caused formed .al, Williams, Patrick the same overheard Cooper Bailey. Elzie to away take from Laquanda conversation between and. Coo- Although defense counsel stated Cooper’s per after the Terrence Jones murder. “just any he think [didn’t] it[ ] [is] The trial in- its court did not err treat hearsay,” agreed question he to ask the testimony. ment In Sweet v. Unit way proposed by the trial court. ed (D.C.2000), we that “it only party wrong held who Cooper’s counsel then El- defense asked fully procures, a witness’ absence who upon zie what he did “based the informa- right object waives to the adverse Cooper gave you.” tion that Mr. Elzie party’s prior introduction of the witness’ turn, replied, I “In Mr. Coo- then escorted (alterations out-of-court Id. statements.” - per upstairs.” Assuming arguendo back omitted) (quoting United States Houli that the trial court should have admitted han, (1st Cir.1996)). 92 F.3d Cooper’s the contents of statements to El- We explicitly also stated that the forfei mind, zie to Cooper’s any show state ture-by-wrongdoing provides “which rule error trial judge’s was harmless. The objection by for the waiver of party handling testimony of Elzie’s allowed Coo- who causes the witness absence cannot per Bailey’s to rebut logically' strip government of substance its hear Sweet, say objections.”. statements, A.2d at Cooper’s which was purpose (internal omitted). quotation marks Terry, Elzie to stand. calling F.2d at 314. by Cooper
c. Statements Elzie Brandon sum, assuming even error two -of evidentiary, rulings, there no Cooper these Finally, claims that by excluding court erred to a Cooper’s right his statement violation constitutional *72 conspiracy..Id. preju How- -Any complete a defense. present , ever,- a Cooper prosecuted was not under very was minimal because Cooper to dice theory liability conspiracy for the vicarious to elicit evidence permitted was he of count of which the murder Leslie Jones jury. the put defense theories the before Instead, Cooper an overt act. was v. United (Maurice) Morris See conspiracy. as (“even principal tried a Be- 1116, 1128-29 (D.C.1998) if suffered, Cooper little, erred, impacted. judge the defense Tann’s statement the cause conspiracy charge on act of the appellant’s- case overt any prejudice” if because the. which, was not only, a charge prose- he ex “clearly jury” and the before theory liability, of cuted under a vicarious testimony bol “would cluded Akins is inapplicable Cooper’s and case”). Therefore, claim we appellant’s stered meritless. on reject Cooper’s claim these evi- based
dentiary rulings.
B.
Instructional
Issues
Videotaped
of Tann’s
4. Admission
1. Obstruction
Justice Instruction
Statement
Beaver, Cooper, and Tann
Appellants
prosecution’s rebuttal
During the
charged
justice
with obstruction-
case,
played
government
portion
a
22-722(a)(2)(A),
§
D.C.Code
under
police
to
videotaped
Tann’s
statement
(a)(6). Appellants challenge the trial
to
on
Leslie Jones
matters relevant
justice jury
instruc-
court’s obstruction
statement,
videotaped
murder.
allege
tion
that it amounted to a con-
Darryl
visiting
Tann made references
structive amendment
the indictment.
murder,
evening of
Travers on the
counts, as listed in
The relevant
testimony of sev
conflicted with the
which
follows;
indictment, were as
alibi witnesses who liad
eral
Tanii’s
17, 2004, and
April
Between on or about
Tann'was with them
testified that
Cooper
...
April
on
or about
evening.
corruptly persuaded, and endeav-
....
any
make
tape
The
did not
reference
induce,
John-
Laquanda
ored
cause
any
Tann. Nor was
appellant other than
son,
official'
the sister
a witness in an
charged
Tann
with
appellant other than
wit,
investigation
into
proceeding,
(although his
Jones murder
Leslie
.
of Terrence
April
2004 murder
an overt act
murder was listed .as
Queen ...
of Richard
Jones and assault
only
charge). Cooper,
ap-
conspiracy
influence, delay and
the-intent
liability
pellant
under
vicarious
convicted
a
testimony Kyara
truthful
prevent
mur-
theory
Laquanda Johnson
—for
that,
...
viola-
proceeding
Johnson
only
pursuant-to
claim
der
raises
—now
22-722(a)(2)(A)
§
tion of [D.C.Code
Akins
A.2d 1017
(a)(6) (2012 Repl.),].
(D.C.1996)
on the admission of
based
30, 2004,
April
Between
or about
videotape.
Cooper
...
July
on or about
...
Tann ...
Gilliam
conspiracy
where
...
joint
trial
Beaver
“[I]n
....
other,
op
per
...
persons
corruptly
theory of
relies
vicar
,
in
suaded,
cause or
liability,
may
be intro
endeavored
ious
statements
duce,
Johnson, with the intent
Laquanda
party
[a]
under the statements
duced
influence, delay, and
persuade
her to
against
opponent exception to
rule
testimony of her
prevent
the truthful
hearsay
they are
... unless
admissible
Johnson,
sister,
in an
Kyara
witness
coconspirators’ statements
furtherance
manner in
wit,
potential
which
describing
one
proceeding,
official
United States
justice.
Cooper
appellants
...
could have obstructed
v. Lannell
violation
22-722(a)(2)(A)
(a)(6)
§
trial court
so for each obstruction
did
[D.C.Code
*73
41
(2012
count,
Tann’s-
justice
including
of
Count
Repl.) ].[66]
Donnise Harris as the
which described
1, 2006, and
Between on or about June
instructions went without
victim. These
... Tann ...
July
on or about
2006
court also
written
objection. The
issued
threatening
by
corruptly persuaded
however,
jury;
to the
the writ-
instructions
communication,
letter and
endeavored
contain the
instructions did not
“means
ten
influence,
Don-
impede
intimidate and
Instead,
the written
language.
of force”
Harris,
in
pro-
a
an official
nise
witness
“threats of
phrase
used the
instructions
wit,
case of
States
ceeding, the
by
pattern jury
the
force” as authorized
... with
intent
Saquawn Harris
the
22-722(a)(6).
§
instruction for
influence, delay,
prevent
the
testimony of Donnise Harris
truthful
verdicts,
prior to
but
sentenc-
After the
...
in violation of
proceeding
ing,
a motion for a new trial
Cooper, filed
22-722(a)(2)(A)
(a)(6)
§
[D.C.Code
instruction
alleging that
the
flawed
(2012 Repl.) ].
constructive
of
to a
amendment
amounted
Cooper’s
the indictment.
argument
instructions,
jury
gov-
Prior
final
the
by instructing
jury
the
could
that the trial court use
requested
ernment
jus-
of
if it found that obstruction
convict
for
jury instruction
the “catch-
pattern
the
by a
tice
been committed
“means of
justice
all” version of obstruction of
under
force,”
jury
permitted
the court
22-722(a)(6)
§
24 and
D.C.Code
Counts
liability on
theory
ap-
which
consider
involving the Johnson sisters. Criminal
Further,
pellants
not
Coo-
indicted.
the District of Co-
Jury Instructions |or
pointed
per
appellants
to evi-
and other
(5th
rev.2013).
lumbia,
Ap-
6.101F
ed.
No.
dence at trial that went toward
“force”
pellants
object,
not
and the court
did
theory
justice,
opposed
as
obstruction
agreed to do so.
the instructions
When
theory' of
“persuasion”
obstruction
given,
the elements of Count were
justice
explicitly charged
that was
jury,
part,
court
relevant
instructed
indictment,
thereby
language of the
en-
as follows:
prejudice
hancing the likelihood
obstructing
elements
[T]he essential
post-trial
instruction. After a
result of the
are, first,
justice
count
...
under this
hearing,
appellants’
trial court denied
corruptly,
by
or
defendant
motions.
impeded
or
force,
means
obstructed
impede
to obstruct or
endeavored
first task.is
Our
determine
e
justice
any
du administration
of review of this issue
correct standard
proceeding
Superior
official
Court
applies to
error review-
appeal. “[P]lain
[Emphasis
of the"District of Columbia.
con
a claim that an indictment has been
added]
objection
if
has not
structively
amended
(Alexander)
trial
jury
The trial court instructed the
been made at
level.”
States,
§
22-
accordance with
D.C.Code
Smith v. United
722(a)(6)
instruction,
(D.C.2002).
pattern
except
Despite
principle, appel
inadvertently chánged
allege
lants
their claims should not be
phrase
(1)
subject
plain
“threats of force” to
of force” when
error review because
“means
(cid:127)
VII(D)'
again
clarity.
supra.
66. See
Count
here
Section
25 has
been included
Jury....”
'the ment
a Grand
U.S. Const.
“essentially preserved
they were
a trial court
-post-verdict
amend. V.
by appellants’
“[W]here
...
broadens
trial court
(2)
trial”;
grounds
govern-
possible
for conviction
add-
for a
motions
new
error;
(3)
ing
factual basis to those con-
appellants
another
ment
invited
indictment,
tained within the
the court
“reasonably
judge’s
[written]
relied on
constructively
impermissibly—
[the
instructions which did
include
—and
(4)
Wooley
amends
indictment.”
v. Unit-
phrase”;
“there is
force]
means
(D.C.1997).
ed
appellants did
strong
likelihood that
Only a
grand jury may “broaden” the
precise words uttered
actually -hear the
charges in an indictment. Stirone v. Unit-
judge.”
212, 215-16,
ed
361 U.S.
80 S.Ct.
*74
arguments
about
Appellants’
270,
(1960).
4
252
L.Ed.2d
uripersuasive.
of review are
the standard
Here,
essentially
claim was
argument that the
“essen
there were
two
Their
preserved” by way
post-con
of the
amendments
tially
constructive
possible
(lj
trial
fail
by
a new
must
the
viction motions for
could have occurred:
addition of
motions
not
post-trial
such
do
phrase
because
the
“threats of force”
the written
thus,
(2)
“timely objection,”
to a
amount
addition of
by
instructions
the
the
plain
from
appellant
not save an
error
will
of force”
the oral in
phrase “means
(Tristan) Smith v. United
See
phrase
review.
structions. Neither
included
(D.C.2004)
States,
1159,
(per
1160
847 A.2d
language
of the indictment. Howev
curiam)
by.statute on
(superseded
other
er,
turn,
addressing each issue in
we find
(Chevalier)
v.
grounds); United States
on
appellants
are owed no relief based
(D.C.Cir.1994)
671, 673
tive by our law that holds case foreclosed virtually objection timely had been raised satisfy the fourth prong cannot appellant by strategic defense invites behavior coun at issue plain error when the indictment ig sel.”). Furthermore, authority no there to a criminal statute includes a citation remaining arguments. The appellants’ in from a trial recites when which oblige of the rule” “point plain-error language if structing jury, a even judge when the defendant to advise track does not otherwise indictment therefore, occurs; the rulé “re mistake wording of Bolanos the cited offense. toes, to be on his quires counsel defense States, 672, (D.C. A.2d v. 938 687 United just judge....” States v. (Alexander-) Smith, 2007); at 801 A.2d 1043, Vonn, 55, 73, 122 152 S.Ct. U.S. Bolanos, In one of defen several 961-62. (2002); v. Davis Unit L.Ed.2d 90 see also charged 'aggravated assault dants (D.C.2009). 1255, 1259 ed 984 A.2d (“AAWA”) by an indictment armed while for a constructive Consequently, we review committed alleged the offense was using plain error standard. amendment causing] serious purposely “knowingly victim; bodily injury pro Fifth Amendment However, instruc jury the Bolanos being to an any person from “held hibits rea, mens included an infamous alternative capital, for a or otherwise tions swer another subsection crime, proper under presentment on a or indict- unless standard, requires that explicitly alleged appel- error which AAWA statute but indictment, is, “that the defendant lants “demonstrate that error affected extreme indifference manifested human rights by showing a rea- [their] substantial knowingly engaging' conduct life it probability prejudicial had a sonable grave bodi- which risk serious created on the outcome [their] trial[s].” effect ly injury.” rejecting appellant’s Id- v. United Comford plain claim of error based a construc- (D.C.2008). First, written in- amendment, tive we held: language structions did not include the both the indictment- failed state While generally People “means of See fofce.” aggravated subsections of assault Wilson, Cal.Rptr.3d Cal.4th ; statute, citation that did include a (2008) (“To 187 P.3d 1069-70 subsections; thus, encompassed both discrepancy exists between extent [appellant] had he be re notice would jury oral written and version instruc- quired against prongs. to defend both tions, provided written instructions [appellant] We find that has failed to control.”). jury Although trial will show that miscarriage justice oc court did not instruct that the curred, in light of the notice he received written in the event instructions controlled through aggravated the citation to the *75 instructions, of a conflict its oral it is with assault included in the statute indictm in phrase doubtful this case that the ent.[67] meaningful “means of force” had a influ- Here, phrase while the “threats of force” upon jury’s the trial ence verdict. The- in jury found the written instructions was court’s were near the of words uttered end indictment, not used the the indictment month seven of a nine-month trial and 22-722(a)(6), § did cite D.C.Code which during period an instructional that lasted phrase describing includes this the of- the of court part better sessions and two Therefore, justice. fense of of obstruction forty-nine relating involved counts to six precedent, under our appellants cannot defendants. A more much reasonable sce- prevail on the basis óf of the inclusion the jurors upon nario is that the relied the phrase of “threats force” the written instructions, written which used the instructions, language, during “threats of force” their Appellants’ argument on based deliberations. extensive language mistakenly of “means force” Second, government argue did during jury read court trial its oral short; appellant’s guilt instructions also falls based on of this time the “means on prong plain theory liability.68 claim fails the third force” Portillo v. See amply supported appellant’s 67. Id. at 687. We came to the same conclu dence conviction (Alexander) aggravated sion where the Smith trial A.2d 960-62. assault.” jury court’s instruction added second means committing aggravated that was not referring 68. assault When to the evidence on Counts 24, 25, explicitly charged language of the in recounted There, testimony dictment. we held “even if we assume asked Donnise Harris Tann Harris; plainly testify favorably appellant instruction indictment, language Cooper approached Laquanda amended the of the Johnson and fairness, there is drugs money no that the integrity risk offered her bribe reputation judicial proceedings Kyara testimony; will influence public Johnson’s be affected' Déwey Chappell working where the indictment included a Bea was with ver, Tann, encompassed citation that both subsections of Gilliam to find the sis and Brian statute, aggravated "change testimony.” assault and the evi ters to their While (D.C. murder, jury the Terrence Jones 2013) (no where, (1) burglary- in a plain charged rendering error one verdicts entry- case, government argued second-degree ap- count for both murder liability as theory (2) pellants felony with-intent-to-steal first-degree two .and charged, as to the additional en opposed charges murder for each. try-with-intent-to-assault theory added instructions, jury final the trial During instructions). Finally, in jury court trial jury could instructed find “any defi appellants have identified appellants guilty both of the lesser-includ- strategy at trial due ciency the defense second-degree ed murder while offense discrepancy between the indictment to the armed, if even reasonable it found doubt relating instructions jury first-degree felony charges. murder charge[s].” justice] [obstruction Id.. Ultimately, jury Tann and Ar- found Therefore, to meet their appellants fail guilty nette each of three counts of second- prong plain third error burden degree while armed: the second- murder claims.69 reject review and we their degree charge that been re- murder Offense Instruc- Lesser-included first-degree premeditated duced from Relationship Felo- Between tion: second-degree murder and two counts of ny Second-Degree Murder murder as lesser-included offenses first-degree felony charges. Arnette murder Appellants Tann and were charged first-degree count of with one pre- argue Appellants now murder armed and two
meditated
while
n
They
improperly
instructed.
first-degree
counts of
relat-
felony murder
second-degree murder is not
contend that
to the death of
Jones. The
ed
Terrence
first-degree
offense of’
lesser-included
alleged
underlying
two
felonies
*76
in
test
felony murder under the “elements”
robbery of
attempted
Terrence Jones and
States,
299,
Blockburger v. United
284 U.S.
Queen.
completed robbery of Richard
the.
180,
(1932)
Byrd
52 S.Ct.
487
or
judge
proper
erred
comments
... we
whether the trial
determine
determine
responding
cumulative impact
his discretion
whether the
of
abused
the er-
“[Ajbsent
improper rul
Id.
some
substantially
jury’s
rors
influenced the
them.”
ver-
dict”) (internal
by
judge,
the trial
we
ing
omitted).
or omission
quotation marks
conviction,
ordinarily
cannot
reverse
considered,
in as
Factors
focus must therefore be
our ultimate
sessing
gravity
harmlessness include “the
or
Irick
judge
the
did
failed
what
do.”.
misconduct,
,the
of
relationship
the
its
(D.C.
States, 565
26,
v.
A.2d
33
United
guilt,
of
issue
the effect of any corrective
(footnote omitted).
1989)
by
tlj.e
judge,
strength
the trial
action
Appellants allege
types
two
of
Irick,
of the
case.”
565 A.2d
.government’s
closing
government’s
in- the
improprieties
government’s
at 32.
first notes
the
We
arguments. Their first con
and rebuttal
closing
arguments
very
and rebuttal
were
government
tention is that the
made sev
Moreover,
lengthy.
.they
part
were
of an
inflame,
designed
eral statements
the
period,
argument by
par
the
extended
jury
urge
the
.to
passions
jury
the
weeks)
.(nearly
ties
two
in a trial .that
message
policies apart
send a
based
opening
nine months from
state
lasted
evidence,
from
the consideration
to the
In comparison,
ments
final verdict.
including:
argument
jury
the
about
government’s alleged missteps
the
took
doing
community’s bidding,
argu
relatively
form of
brief references
“enough
enough,”
ment that
refer
the.
protracted arguments
amid
about the com
weeds,”
“pulling
ence to
out the
and the
facts,of
plex, and numerous
See
case.
analogy to
Italian Mafia. See
McGriff
(Vonn)
States,
Washington v. United
884
States,
(D.C.
v. United
705 A.2d
289
CMaurice)
(D.C.2005);
A.2d 1080, 1089.
States,
1997); Powell v. United
A.2d
455
Morris,
(“the
622
offending
at
A.2d
(D.C.1982).
405, 410
The other assertion
relatively
comment was a
reference
brief
by
government
is that
appellants
made
(inter
during lengthy closing argument”)
credibility
improperly vouched for the
omitted).
quotation
nal
marks
by openly declaring, during
its witnesses
objected,
Each
appellants
time that
argument,
its bias
favor
them. See
Finch,
gave timely
trial court
and effective cura
McGriff,
tive instructions. See
7056A.2d at
assuming appellants’ con
Even
289. We discern no abuse
discretion.
correct that these
tentions are
remarks
Moreover,
government’s po
because the
improper,
were
never
we
fol
tentially
improper' remarks tended
grounds
find no
theless
reversal.
appellants’ attacks on
motives and
low
con
testing for harmlessness
When
strategies
prosecution, many
closing,
rebuttal arguments,
text of
arguments
generally
these
were
collateral
court may [
[if
“this
affirm the convictions
]
keiy
and not focused' on the
matters rele
appellant
is] satisfied
did
question
appellants’ guilt.
vant to the
from
suffer
‘substantial
prejudice’
States,
See Bates v. United
Finch,
prosecutor’s improper comments.”
(D.C.2000) (remarking
periph
on the
(citing
teritly the by jail. Approximately the ambiguous as to their maintained are more (cid:127)remarks See, Irick, in June 2006 were e.g., Cooper calls that made impermissibility. dozens, the to been lost. (“Despite decisions the have at 35 estimated may or governing prosecutor what a law motions, Cooper brought During pretrial a say credibility of may not- 'about the attention the trial the issue to the easy to or always is not discern [witness] give to to the judge prepare the and asked Finally, findings ap apply.”) jury’s the instruction. jury “missing evidence” through the evi peared carefully parse argued, appeal, as he does Cooper ' ultimately against appellant, each dence to use con- he have been able would appellants of the most acquitting sfeveral missing calls for the tents of the impeach- Brewer charges against them. See serious witnesses, or alterna- government ment of (D.C. v. United him. nonhearsay by verbal acts tively,-as 1989). Therefore, confidently say canwe hearing, trial court a motions After appellants did suffer substantial by government was loss found that the any improprieties, prejudice as a result The court also found that unintentional. individually collectively, taken either of the any no evidence "that there was government’s arguments. tó have been favorable material would Therefore, the court denied Coo- Cooper. Discovery D. in- missing for per’s request Appellants discovery three related make However, prohibited the court struction. brings' arguments. Cooper alone a claim testimony' government eliciting from government’s loss related of his any from witness conversations about phoné jail. appellants bring calls from All missing on the calls. Ad- would have been Brady75 involving government’s claims stipulation ditionally, parties introduced Dewey Chappell Kyara witnesses essence, stating, in that the into evidence Johnson. by govern- 2006 calls were lost June them had ment and efforts recreate Cooper’s Phone 1. Loss of Jail Calls failed. argues that the Cooper trial court erred trial Cooper argues that the court erred “missing giving
in not
evidence”
give
“missing
evidence”
refusing
discovery
instruction as a
sanction for the
i.e.,
instruction,
that::
government’s
of a number of his
loss
r
phone
jail.
calls
If
to an issue
this
from
There was extensive
evidence relevant
power of
jail phone
by
only
evidence of
calls
multi-
was
within the
one
made
case
parties
party
produce,
produced by
was not
ple appellants admitted
In
investigation
trial.
its absence has not
party,
been
course
case,
you
if
prosecutors
sufficiently explained,
may,
into
received a
then
containing
you
appropriate,
number of CDs
calls
infer that the
made
deem
Cooper,
jail
from
between June 2005 and
evidence would have been unfavorable
it.
produce
As it
who
preparing
party
November 2006.
failed
However,
discovery,
you
such an
sent
should
draw
the CDs
technology
copying.
your
its
unit
from evidence that
inference
to both
process,
recordings
judgment
equally
of certain calls
available
enough
parties
duplicated
passed
were lost
time had
or which would
(1963).
Brady Maryland,
373 U.S.
83 S.Ct.
10 L.Ed.2d
*81
you
of
govern-
or
think
court’s characterization
the
other
that
evidence
unimportant.
ment’s loss of the recordings 'as the result
negligence”
of “substantial
care-
“real
District
Jury Instructions for the
Criminal
16
constituting
lessness”
a Rule
violation.
(5th
rev.2013).
Columbia, No. 2.300
ed.
of
However, our
of
supplies
review the record
(cid:127)
Criminal
Rule
Superior
Court
for this court
no basis
to disturb the trial
16(a)(1)(A)requires
government
the
to dis
judge’s
regarding
conclusion
the minimal
any
written
relevant
close
the defendant
importance
the missing
of
evidence
by the
made
defen
recorded statements
(particularly
light
defense
of the doubts
knowledge, or
of which it has
dant
he.properly expressed regarding whether
of
dili
discover in the. exercise
due
would
Cooper
able to
would have been
make use
avail
gence,
those statements
and make
any
of the
may
statements that
inspection, copying,
for
able
the defense
lost recordings).76
been contained
This court has noted
or photographing.
Tyer, 912
at
A.2d
1166.
duty to
discoverable
produce
that “[t]he
missing
Because the
evidence instruc-
duty to
evidence entails the antecedent
“essentially
tion
creates
from
evidence
Allen United
preserve
evidence.”
non-evidence,”
(D.C.1994).
we have said that
States,
548,
trial
649 A.2d
553
courts should take
that its
care
use does
If.
trial
a
court concludes
unfairly
change
“the tone
the evi-
government’s
preserve
that the
failure to
jury to “give
dence” or invite the
undue
16,
a violation of Rule
evidence' constituted
weight to
presumed
content of testimo-
sanction,
fashioning
appropriate
“[i]n
Id.;
ny
presented.”
Thomas v. United
weigh
degree
negli
court
should
States,
52,
(D.C.1982).
A.2d
Any
involved,
gence or bad faith
the importance
of prejudice
Cooper
claim
makes re-
lost,
of the evidence
and the evidence
lated to the trial court’s
refusal
adminis-
guilt
(Anthony)
adduced at trial.”
Robin
missing
is
ter
instruction Under-
son v. United
mined
corrective measures
(D.C.2003).
may
The trial court
select
employ,
trial
did
both
which included
the’“extremely
range
from
broad”
sanc
prohibition against
government
elicit-
“just
action that
tions
corrective
ing any testimony regarding the contents
circumstances,” Tyer
under the
v. United
calls,
missing
and the administration
(D.C.2006).
stipulation informing
of a
that the
request
review the
of a
for a
“We
denial
possession
calls had
lost while
been
missing
evidence instruction
abuse of
Therefore,
government.
we find no
discretion,”
“will not
id.
we
trial
abuse
court’s
discretion.
trial
as to what
reverse the
court’s'decision
remedy.
choice
sanctions,
any,
impose
if
unless
...
substantially
there is an
which has
error
Dewey Chappell
Allen,
rights.”
a defendant’s
prejudiced
government
Dewey Chappell was a
wit-
omitted).
(emphasis
the match was confirmed NIBN. Brady issues are mixed questions of law and fact. Mackabee However, Chappell Dewey appar- (D.C.2011). ently suspect by never considered a findings While a court’s of “historical trial January murder. error, fact” are reviewed for clear where ended, After the merits of this trial portion findings legal court’s “concern[] sentencing, Chappell but before was de- facts,” consequences they are link historical briefed about the ballistic and told (internal investigators any quotation reviewed de novo. Id. that he was unaware omitted). facts related that homicide. He also marks “curry suppression prosecution. avoid “[T]he favor” and evidence, Therefore, to an prosecution favorable the undisclosed lacked evidence process request necessary accused violates due upon impeaching qualities so as n is where the evidence either Brady. material material under punishment, irrespective. or guilt Moreover, record, on this we no see prosecution.” good faith faith bad of the, suggest evidence would' bal-" 1194; Brady, 373 U.S. 83 S.Ct. 87 listics investigatory information had value' Williams, (Wesley) A.2d at 561. “The appellants such that its non-disclosure only if evidence there is rea material government’s would have violated the dis that, probability had the evidence sonable Mackabee, obligations. closure 29 A.3d at defeñsé, been disclosed result (mere speculation might proceeding would have different.” been discovery have led to exculpatory evi *83 Bag Id. at 562 v. (quoting United States Brady insufficient to dence establish a vio 667, 3375, 682, ley, 473 87 U.S. 105 S.Ct. lation). Finally, agree we with the trial (1985)). evi L.Ed.2d 481 material Such court that the cross-examination extensive may impeachment dence matters. include Dewey Chappell of on issues related to States, (Michael) Robinson 50 v. United bias, including weapon on based the that (D.C.2012). 508, 519 A.3d home, was in found his was such that had the ballistic concern evidence been disclosed there The non-disclosure was still no that ing Dewey Chappell possibility not reasonable the material un Brady, grounds der for. results of this case would been find no diffe we Fortson, . 662-63; “Impeachment is not ma rent See 979 A.2d at relief. evidence States, if v. terial the witness does not have knowl Watson United 940 A.2d (D.C.2008). edge of 187-88 underlying the fact.” Ifelowo United A.2d 295 13 n. Kyara Johnson (D.C.2001) Scott, (quoting Williams v. ; Johnson, Kyara (5th eyewitness as an Cir.1994)) F.3d Blunt v. (D.C. Laquanda both the Terrence Jones and murders, 2004) (“When govern Johnson was a critical evaluating possibility of the Cooper’s ment in witness. She testified testimony, objective bias adverse the murder, 2006 trial about Jones’s prosecution subjective likelihood and the Terrence again in this trial about murder government prosecute intent are Rather,.it .following and her sister's* In weeks irrelevant[.] is the witness’ be murder, Laquanda’s Kyara gave grand prosecution ppssible lief that is can Laquan- bias.”) (citations jury testimony night about produce quo internal death, Kyara omitted). grand jury, da’s because, Before tation marks is This course, Alphonce testified saw Little flee that she a witness cannot be motivated by jumping scene crime way act in a if no knowledge certain he has moped by back of a another man .driven he should be motivated do so. wearing hair in carry his dreadlocks and Here, there is no that Dewey however, trial, At gun. she testified ing Chappell finding was aware of the NIBN heard a on direct-examination that she linking weapon house to found away but moped not Little driven had seen fact, January 2009 homicide. on one. way to government went out of its avoid cross-examination, exposing Kyara On Chappell knowledge the bal- Johnson that, acknowledged listic link so have motive that she had lied he would Rushing moped. concerning them testified she grand jury. also She incon closing that the argue on to she had went government informed credibility. Little’s story Alphonce sistency Little about undermined been told the Shaquita friend by her moped concerned, gov- Long was As far as Kyara was Long. the fact that Apparently, unchallenged that she proffer was ernment Longs the moped told about moped. she never saw testify that would before knpwn appellants previously govern- immaterial This fact'renders During a break testimony. cross-exami- identify her ment’s “failure” to alleging nation, appellants made motions information Kyara source of Johnson’s Rushing claimed that discovery violation. testimony. finding Our grand jury her because exculpatory Long was an witness fact that supported is immateriality testimony would version support her any made further counsel never defénse from escorted where Little was not events they any Long. Nor ask for did mention by Rushing and scene the murder Beaver to interview' order sort continuance Rushing, car. Rushing’s Beaver trial, subpoena despite her Long, Cooper, joined by renew claina court to of the trial express invitation appeal. Williams, (Wesley) at 563 do so. n Kyara responded that wit- potentially exculpatory (importance jury testimony about grand AL. Johnson’s attempt no where nesses decreases *84 long moped phonce Little and the had to to a continuance order made receive Additional- been available to defense. testimony). investigate their proffered, Shaquita ly, government at Long government told the outset Jury E. Grand Claims Laquanda Johnson’s investigation into Arnette, Tann, Harris Appellants drive murder that she never saw Little on at bring three claims raised trial based Instead, in- Long on a away moped. jury: grand misuse of the government’s saw vari- government formed the she pre- in the improprieties on two focused" driving Crew members ous 22nd Street -on process alleged a third indictment an hour moped on 22nd Street about jury the su grand abuse of- the after before,the , shooting. case perseding indictment discovery no viola- The trial court found Pre-indictment, appellants handed down. tion, to government make but ordered the in argue government improperly that the to for interview- Long appellants available process by sum grand jury fluenced to appel- court also offered allow ing. The testimony given previous marizing cases, necessary, if to' reopen lants to their live wit juries calling grand1 instead Long could not be located the extent nesses; appellants prose also contend cases prior completion their presented incompetent evidence cutors (which days begin three were scheduled in violation of Tann’s mari grand jury testimony for the Kyara after Johnson’s Post-indictment, appellants privilege. tal finished). government .unlawfully government contend that jury discovery tool Brady grand no violation based- used We find called a witness Kyara prosecutors and when involving facts Johnson these “locking-in” his acknowledged grand jury purposes Long. Defense counsel already testimony appellants had inconsistency between after they knew of the find that trial Kyara’s version of been Alphonce Little’s and indicted. We handling its both of not abuse discretion to cross-examine did events used Therefore, appel- recognized The trial court matters trial. these the marital no on privilege are entitled to relief based lants issue and noted Tracey could claims. testify their to that fact at Moreover, trial. reviewing grand after jury testimony, her juries convened and grand Two the court found that Tracey should not against appellants. In issued indictments about that privileged'state- testified grand jury indicted all October trial, ment grand jury. before the At except Rushing. February appellants Harris, joined Tann and now Arnette Alphonce gave gov- after Little appeal, argued of the in- dismissal Rushing’s information about ernment new dictment based on Tracey’s incompetent murder, Laquanda Johnson role testimony prosecutor’s and the summariz- grand jury handed the su- second down ing grand jury. evidence The upon gov- perseding indictment which the judge, relying primarily trial on Bank proceeded Appar- in this ernment case. Nova Scotia v. 487 U.S. only presented ently, new 2369, 101 108 S.Ct. L.Ed.2d 228 grand testimony the second was the (1988), rejected both of appellants’ pre- reciting Rushing’s Mayberry of Detective indictment claims. recently involvement La- discovered also quanda’s prosecutor murder. The grand jury final The issue was raised transcripts summarized numerous of testi- during discussions about the anticipated mony grand jury investiga- from previous testimony' witness, a government Willie tions, prosecutors and then left those tran- Jones. The intended call scripts accompanying exhibits Willie to describe a Jones conversation grand jury for its consideration.77 Tann, that he had with after the Terrence Tann, During testimony Tracey murder, Jones which told him Tann privilege the issue of marital was raised. Tann approached govern- a different Tanns in April were married 2004— ment in a witness *85 manner. threatening approximately year one after the Leslie essentially; Tann objected, grounds on marriage, Jones murder. Prior to their proffered testimony the was vague Tracey Tann told that he killed a man reviewing After Jones’s Willie irrelevant.. (Leslie nickname) named “Bone” Jones’s jury testimony in grand the course of rul- cross-examination, on 22nd On Street. ing objection, the trial court noticed Tann’s defense counsel the discrep- elicited testimony his given after the date Tracey location between the where ancy in indictment this case. superseding that Tann testified told her the murder (22nd sponte, Sua the court raised Street), the issue was committed and the loca- improper that it was to call to -witnesses tion actually (Shipley where it occurred Market), participate grand jury investigations in in an attempt undermine her already order to obtain evidence on indict- testimony. response, prosecution introduce, re-direct, government represented The sought to ed cases. Tracey’s subpoenaed give Jones was grand jury testimony to the Willie effect that (in marriage after their Tann her con- evidence on other murders still told unindicted fidence) actually investigation by grand jury. under that he had committed Shipley government proffered the murder at Market. further that it had government represented reviewing grand jury 77. The that the rea- not make sense to the provided son summaries were was that the explanation. without exhibits, transcripts, which referenced would “if it is only established propriate had facts rele- that Willie Jones learned grand substantially influenced pre-grand a violation during case the instant vant indict, grave or if there govern- jury’s decision -According to the jury interview. was free the decision to indict ment, doubt that then testified about the Willie Jones of such vio from the substantial influence to his incidental testimo- facts this case , Williams, at A.2d (Phillip) lations.” matters. ny about-other unindicted omitted) (internal quotation marks govern- with the disagreed The court Scotia, at (quoting Bank Nova 487 U.S. and found'that Wil- representations ment’s 2369). 256-57, 108 S.Ct. already testimony about lie Jones’s was the' domi- in this case indicted offenses Here, clearly the record reflects grand jury appearance. his purpose nant quoted applied that the trial court However, pleadings a series after from Bank Nova Sco standard correct that it would be hearings, the court found in tia deciding whether dismiss from prohibit Willie Jones inappropriate improper exposure of despite the dictment proper- government testifying because the grand testimony to the privileged marital underlying ly information uncovered the (Phillip) jury.78 the record Similar jury during pre-grand in- testimony Williams, case the record in this shows lawfully to a sub- pursuant terview issued jury compelling evi grand Instead, court ruled that poena. testimony than other dence before remedy prohibit proper would be Specifically, grand error. admitted using Willie from Jones’s premarital testimony from Tra heard way during testimony any grand jury describing how cey Tann killed man trial. “Bone,” related to one named who was Therefore, Tracey’s incompe his rivals. 1. Pre-indictment testimony largely cu post-marital tent matter, general “[A]s prop testimony with her that was mulative not dismiss an indict may [federal] Furthermore, jury. erly grand before grand jury proceedings ment errors in powerful testimony grand jury had prejudiced ‘such errors the defen unless eyewitnesses describing Leslie from two Scotia, Bank Nova 487 U.S. dants.” Little, Alphonee testify murder: Jones’s (Phillip) Williams 2369; 108 S.Ct. Jones, shoot ing saw Tann Leslie he (D.C. Curry, describing how he Tyrone 2000) for Dis standard the same (adopting *86 Tann run gunshots heard and observed courts). Except trict of Columbia shooting immediately of from the scene the “in errors involving cases “fundamental” thereafter. - protections of the the which structural correctly Consequently, trial court compromised so the grand have been jury statements, fundamentally premarital that the concluded proceedings the render going to Tann’s unfair,” ap- is and other evidence murder the indictment dismissal of (2012 14-306(b) investigations grand e by Repl.) used to describe a § 78. Se D.C.Code (“In spouse proceedings, Jury Investigation, jury”); civil and criminal In re Grand 431 testify ("[I]t competent 584, (E.D.Va.2006) partner or not domestic is ... F.Supp.2d 592 any made as to communications confidential privilege may the marital well-established that marriage during one the to the other during testimony.”) grand juiy invoked be (Cotey) Wynn v. partnership.”); domestic (Thomas) Morris, (citing States v. 988 United (D.C.2012) States, 181, 48 189 A.3d 1335, (4th Cir.1993)). F.2d 1337 (“[t]he comfortably may ‘proceeding’ word
495
also,
Jones,
Indeed,
“compelling
prosecutor
of
were
evi-
review.
Leslie
stated
probable
grand jury
grand
dence” for the
find
the second
was correctly
setting
privileged
cause even
aside the
that Alphonce
perjured
alerted
Little
testimony.
post-marital
find that the
We
prior grand
himself before the
jury.
“raise,a
not
testimony did
sub-
problematic
Where there is no indication that, the
doubt,
question,
grave
stantial
much less
grand jury
any way
inwas
based on
misled
as to whether
had a substantial effect
[it]
government’s
manner of the
presenta-
charge.”
on
grand jury’s
decision
evidence,
tion
we
no
basis
Scotia,
263,
Bank Nova
We this is the and believe robbery to apply. courts for for trial tions armed AWIKWA standard merge not each Queen Richard do Here, court’s decision to trial bar remaining ór his PFCV convic- other with using government from Willie Jones’s Jones murder. This tion the Terrence testimony put gov- at trial grand jury merger issues de novo. reviews same it exactly position ernment States, Nero v. 73 A.3d 159 United in absent its misuse would been (D.C.2013). government grand jury. The learned from information Willie Jones relevant Jeopardy The Double Clause during pre-grand-jury proper a interview against multiple protects pun defendants subpoenaed directly him and could have offense, ishments for the same but does witness, than him having a trial rather prohibit multiple punishments not testify on grand jury already indict- at the v. “separate acts.” Owens criminal United unchallenged is ed It matters. (D.C.1985). States, 1086, 1094-95 497 A.2d legitimate a government purpose rule, general predicate two a where “[A]s originally subpoenaing Willie Jones merge, a armed offenses do defendant grand namely, to learn unin- jury; about may separate be counts of convicted investigation. dicted under matters ” relating PFCV each offense.... Ste facts, these trial Accordingly, given States, v. 760 venson A.2d United remedy permit court’s choice —to (D.C.2000). rule, however, The government to call Willie Jones as a wit susceptible exception: “multi to a limited from prohibit using grand ness but to his merge, ple PFCV will if convictions even any way fitting testimony —seems felony merge, offenses do predicate (precluding and not in error. id. at 271 Cf. if they out of a uninter arise defendant’s government calling from the witness at rupted single weapon a possession of dur only trial remedy” was “the effective ing single act of violence.” Matthews cíase). Therefore, appel facts (D.C. A.2d grand jury lants’ claims are denied. 2006); see Nixon v. United also (D.C.1999) (applying Merger X. that, holding lenity three rule PFCV Appellant argues for merger of the Tann merged into where convictions one the de (1) following his convictions: three convic- into fendant times con fired- several ear second-degree tions for of Ter- murder victims). taining multiple (2) Jones, his rence three PPCV convic- tions out of the arising Terrence Jones determining multiple whether (3) murder, his two PPCV convictions aris- single PFCV convictions are based ing Taylor-Bernard out of the James violence, act or acts of apply distinct we (4) incident, Mackey his two convic- PPCV “fork-in-the-road” so-called “fresh arising tions óf robbery out the armed Matthews, impulse” at test. (5) Queen, his Richard AWJKWA 1106; Stevenson, (“If A.2d at 1037 arising PFCV out Queen convictions scene of the crime defendant can facts arising with his convictions out PFCy that he said have realized has come facts. of the Terrence Jones road, fork nevertheless interest, joins decides to a different
Appellant Arnette
Tann as
invade
then
(2).
(1)
him
arguments
subject
make
intentions
successive
(1), (2),
(3),
arguments
punishment....”).
concedes
but
cumulative
*88
n
(cid:127)
test, Tann’s PFCV
the two
Under that
Jones because
PFCV
in-
offenses
robbery
convictions related
.and
“separate assaulting
volved
Harri-
acts.”
shooting
Queen
merge.
of
son,
Richard
do
Therefore,
several cases.
Section
section,
ingly
intentionally
encourage
or
or
colleagues
assist
my
In that
however.
(i,e., Foreman).
principal
Tann
appellants Harris
could
assailant
that
and
hold
jury
guilty,
Harris and Tann
aiding
The
found
abetting
and
Robert
be liable for
,
first-degree
Tay-
armed for
while
shooting
Taylor
of James
and
murder
Foreman’s
death
with intent
kill
Mackey
if
Tann
lor’s
assault
even Harris and
and
Bernard
wounding Mackey.
presence
of Foreman’s
or while armed
unaware
intend
actions and
to assist or
did
I
The
issue on which differ
fundamental
in his criminal
encourage Foreman
activi-
person
my colleagues is whether
ty.
my colleagues
majority
I
believe
can be
as an aider and abettor
guilty
found
holding
theory
on an
that
erroneous
base
District of Columbia
under the law the
liability
theory of
accomplice
novel
—a
to assist
proof
without
that he intended
or
devising, and one not relied on
their own
I think
encourage
principal offender.
at
argued
appeal.
trial or
banc,
in
Sitting
not.
en
we declared Wil
son-Bey
“requirement
opinion
in
that
it is
per
explains
[for
As the
curiam
detail,
shootings
aiding
abetting liability] that
ac
more
occurred
4, 2006,
complice
to have intended that
May
playground
at a
on 22nd
be shown
committing
in
gov-
principal
According
Street
succeed
Southeast.
elaborated,
trial,
charged
in a
proof
after Omar
offense.”1 We
ernment’s
Harri-
at
decision,
Ashley subsequent
that
this court
verbally
son
has
slapped
abused
“adopted
that ‘in
Tyndle, several members of the 22nd
the doctrine
order
Tann,
Crew,
person
spe
for the
including Harris
held accountable
Street
aiding
cific
Tyndle’s
rushed to
defense. Harris and
intent of
an
,
another under
abetting
.liability,
theory
principal
shots at'
Tann fíred'' several
Harrison.
Foreman,
Crew,
knowingly
or
another member of the
aider
abettor must have
aid
on the scene a few
later
ed the other
with the
that
person
arrived
moments
intent
and,
Tann,
charged
to Harris
in-
the other
commit
person
unbeknownst
join
requirement,
dependently
in
shoot-
This core
has a
decided
crime.’”2
ing.
long history,
Judge
Foreman
Harrison
is
missed
which
reviewed
but
hit,
supported
finding
opinion
that he
Learned Hand’s
defin
influential
killed,
ing
Taylor.
may
accomplice liability
He
under federal law
also
have fired
Supreme
injured Mackey.
appel-
shot that
Over
United States v. Peoni.3
Nye
objections,
lants’
the trial
instructed Court
endorsed Hand’s definition
&
States,4
Harris and Tarih could be
v. United
and it now
Nissen
well
guilty
shootings
specific
for these two
found
as
settled
“the
intent to facilitate
partic-
by
and abettors based on their
the commission of a crime
another” is
aiders
(i.e.,
ipation
aiding
abetting
in “the crime”
shoot-
an essential
their own
element
Wilson-Bey
1.
principal offender]
v. United
committed
would
903 A.2d
banc).
(D.C.2006) (en
conduct;
upon
accessory's
831
follow
they
he in some
all demand that
sort associate
Little v.
venture,
[principal’s]
himself with
he
(D.C.2010) (quoting Wilson-Bey,
participate
something
he
834).
about,
bring
wishes
that he seek
succeed”).
action to make it
(2d Cir.1938) (explaining
3. 100
F.2d
"accessory”]
[of
that "all these definitions
613, 619,
nothing
4. 336
69 S.Ct.
proba-
to do
U.S.
L.Ed.
whatever
with the
(1949).
bility
crime
[the
the forbidden result
"
*90
abettor,
and abet-
to be liable as an
or
general
aiding
the
aider
“it is not
under
federal
statute,
§ 2.5 “The
ting
18
intent
sufficient that
intentionally engaged
U.S.C.
he
in
necessary
support
which,
to
a conviction for aid-
out,
give
acts
it. turned
did
assis-
goes
ing
abetting
the mere
beyond
encouragement
or
principal”;
tance
action
knowledge
the defendant’s
addition,
in
accomplice
“the
in-
must have
pur-
would tend
advance some nefarious
to give,
tended
the
or encouragement”
aid
Rather,
principal.
defen-
pose
reason,
For the
it
principal.9
same
act
the specific
dant must
with
intent
is not sufficient that the
merely
defendant
facilitating
advancing
principal’s
or
had the same mens
rea as the
principal.10
crime.”6
underlying
commission of the
There
“a dual mental
requirement”
is
state
aiding
“our
statute
abetting
Because
for accomplice liability:
accomplice
not
substantially
does not
its
differ
from feder-
only
culpable
must have “the
mental state
counterpart,”
federal
al
we “look
required for
underlying
crime commit-
interpretation
courts’
federal statute
by
ted
he also
“as-
principal”;
must
construing
in
our own.”7
or encourage[]
sist[]
the commission of
Thus, contrary to
position espoused
crime committed
the principal with
government
implemented 'by
promote
or' facilitate such
intent
case,8
trial court
in this
for a defendant
commission.”11
983,
Washington,
persuading
5. United States v.
106 F.3d
criminal law ás “[t]he act of
an-
crime”).
(D.C.Cir.1997) (quoting
person
1004
States v.
other
Nor
United
commit a
has
841,
(D.C.Cir.1982));
case,
Raper,
government
any
676 F.2d
849
see
been able to find
—
also,
States,
e.g.,
any jurisdiction, holding
v. United
U.S.
from
Rosemond
a defendant
-,
1240, 1245,
134
L.Ed.2d 248
indepen-
S.Ct.
188
liable as an aider and abettor for the
("[Ujnder
(2014)
provide
§ 2 ‘those who
dent criminal act of another that-the'defen-
assist,
knowing
persons committing
intentionally encourage
aid to
federal
dant did
br
not
crimes,
crime,
with
way.
the intent to facilitate the
in some
”)
committing
(quot
are themselves
a crime.’
Denver,
ing
LaFave,
Central Bank
N.A. First Inter
13.2(c)
v.
Wayne
§
9.
R.
at
Criminal
Law
Denver,
164, 181,
N.A.,
(5th
state Bank
511 U.S.
alia,
ed.2010) (citing,
Bog
713-14
inter
1439,
(1994)).
114 S.Ct.
128
119
State, 941
(en
L.Ed.2d
(Colo.1997)
danov v.
247
P.2d
banc)).
Frampton,
6. United States v.
382 F.3d
(2d Cir.2004).
specific
10.
have held that “where a
mens
We
offense,
rea is an element of a criminal
(internal
Wilson-Bey,
quo-
7.
at 831
defendant must have
him
mens rea
omitted).
marks
tation
and brackets
offense,
guilty
to be
whether
is
self
he
charged
principal
as a
or as an
aider
government's position,
8.
at
trial and
Perry
abettor.”
36 A.3d
appeal,
accomplice’s
"if is an
inten
(D.C.2011)
(quoting
crime,
Kitt v. United
participation
tional
in
his associ
(D.C.2006)). This is
gives
aiding
principal,
ation with a
rise
sufficient,
necessary,
condition for
but
abetting liability.”
Appellee,
Br. for
at
accomplice liability.
government
argues
204. The
thus
Harris
if, by
and Tann were aiders and abettors
Harrison,
(internal
shooting
Bogdanov,
they "incited”
Foreman
guilty
gang.40 Al-
mob to
of a rival
against
others
or
members
intent' to aid
abet
Rather,
Supreme
as the
gunman
identity
break the law.36
second
though the
in a subsequent
trial,
said
Mexico
nothing
Court New
at
was not established
case,
a defendant
cannot convict
“a
suggests that
the defen-
opinion
court’s
a
unless
liability for
crime
accessory
upheld
have been
would
dant’s conviction
acts.”37
principal’s
intended the
defendant
unknown
that he and the
absent evidence
in con-
acting together and
gunman were
appel-
Illinois-intermediate
Lastly, the
Illinois
is
Su-
People
v. Cooks38
with each other.
cert
late court’s decision
that,
except that the
and Kukis
clear
even
preme'
to Ochoa
has made
similar
Court
rule,
criminal
member of a
was a
a
design
defendant
under
state’s common
mob,
a
and the case
gang
than
rather
pro-
“the intent
must have
defendant
hybrid
of a
application
state
involves the
commis-
principal’s]
[the
or facilitate
mote
thap
law)
(rather
provid-
common
statute
an
sion” of
offense.41
alia,
person
“legally
a
ing,
inter
sum,
my colleagues
I
submit
conduct of another
for the
accountable”
un-
unprecedented
crafted an
of their “common
person
furtherance
Harris and
upholding
sound rationale
agreement.”39 The de-
design or
criminal
ir-
rationale that is
Tann’s convictions—a
convicted under
in Cooks was
fendant
Wilson-Bey
other
with
reconcilable
by
committed
provision for a murder
of this court.
I am com-
binding decisions
on circumstan-
gunman based
unidentified
judicial
pelled to
that this exercise
gang
fellow
add
that the twb were
tial evidence
noted, however,
parties
the common
of all
the Utah
be the acts
be
36.
It should
doctrine,
agreement
equally
reject-
design
and all are
accepted
which
we
accomplice liability
responsible
consequences
of those
Wilson-Bey,
for the
ed in
"probable
presence
and natu-
at the scene of
are the
acts. Mere
criminal acts that
further
design,
person
consequences” of the common
accounta-
ral
crime does not render
offense;
part
person’s presence
were not
even if those
ble for an
consequences
however,
crime,
original
accomplice's
may
Id. at 481.
intent.
the scene
other circumstances
considered
Carrasco,
P.2d
124 N.M.
37. State
determining
trier of
when
accountabili-
fact
Ochoa,
(1997).
cause briefing or other any input benefit on merits of the “communi- parties STATES, Appellee. UNITED theory of ac- ty purpose/foreseeability” No. 13-CO-252. or in this complice liability application its ill-advised, I think it unfair case. District of of Appeals. Columbia Court contrary norms parties, court’s Argued Feb. 2015. majority rely on this develop for the 25, 2015. major of a doc- Decided Nov. unforeseeable reshaping affording law without trine criminal it in opportunity to parties address briefing.42 past, In the
supplemental when ap-
this court has deciding considered
peal parties on a basis “the failed to identi-
fy discretionary departure and brief’—a' general points
from rule that - urged appeal are deemed to be have taken care to “ensure
waived—we fairness, govern-
procedural both defense, by providing
ment and to the each
party opportunity the- brief’ the This ’so
issue.43 even when the issue
injected legal the court involves settled There is no reason to
principles. deviate
from that rule of fairness basic here. reasons, foregoing respectfully I
For the from cu- per
dissent Section VII.C opinion
riam convic- and would reverse the arising
tions Harris and Tann from Mackey.
shootings Taylor
token,
By
encourage
princi-
I think it unfair
must
42.
same
intend
assist the
pal.)
inappropriate
majority to find that the
for the
trial court's
to instruct
"erroneous" failure
Randolph
v. United