Appellant Gregory Napper was charged by indictment with first-degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license, all in connection with the September 8, 2007 murder of Marvin Leon Carter. A jury found him guilty on all counts. On appeal, appellant argues (1) that the trial court erred in denying his motion to suppress statements he made while talking on his cell phone in a police interview room; and (2) that — no aiding and abetting instruction having been given — the evidence adduced at trial was insufficient to convict him of murdering Carter. We reject these contentions, and affirm the judgment of conviction.
I.
The government presented the following evidence at trial. Carter was shot to death on September 8, 2007, at about 6:15 p.m., while driving in front of appellant’s home, located at 2220 Prout Street, S.E. Carter spent the afternoon of September 8, 2007, with his friend Malik Reeves, Jr. Reeves testified that he had stolen two cars the previous night — a green one and a silver one — and that he and Carter were riding in the green car when they noticed it was getting low on gas. 1 They parked the green car in an alley next to appellant’s house and got into the silver car with their friend Jamal. As they did so, appellant and some other men who were standing in the alley asked Carter and Reeves whether the green car belonged to them, and whether they lived in the house next to the alley. Jamal said “yeah,” and laughed at the men. Reeves heard a short man standing next to appellant say “they are lying like sh*t.” Jamal, Carter, and Reeves then drove away in the silver car.
The three young men eventually abandoned the silver car, and Reeves and Carter returned to Prout Street to retrieve the green car. There, Reeves saw several men sitting on the porch of 2220 Prout Street, and as he and Carter walked into the alley toward the green car, two of those men ran inside the house. Carter got behind the wheel of the green car, and Reeves sat in the front passenger seat. As Carter began to drive away, Reeves saw two men come out of the house and run toward the street. Reeves testified that appellant stepped into the middle of the street and pulled out a black semiautomatic gun. Reeves warned Carter to duck, and Carter did so, but nevertheless was hit when the gun was fired into the driver’s side of the car. Carter, bleeding profusely from the gunshot, became “weak” and crashed the green car into a vehicle that belonged to appellant. Reeves, who was “in shock” as he tried to cover Carter’s mouth to keep the blood from flowing out, testified that the shooter ran across Prout Street toward the playground on the opposite side of the street. Reeves stayed with Carter until he heard sirens, and then left the scene.
2
Reeves
Raymond Brooks, who had known appellant for eight or nine years and had been close friends with him, was also present at 2220 Prout Street at the time of the shooting. When Brooks arrived there, appellant was sitting on his porch with some other men from the neighborhood, including brothers Earl and Jamal Curley. Brooks testified that appellant became “disturbed or something” and “got up off his porch and left.” Brooks remained standing on the porch, talking to the Cur-ley brothers. Brooks’s attention was eventually drawn to the alley to his right, where he heard some people yelling, with appellant yelling the loudest. Thereafter, appellant and a man named Charlie Smith, who was known as “Gutter” to his friends, ran past Brooks and went into appellant’s house. Brooks testified that when appellant and Charlie came out of the house, “it look[ed] like [appellant] ... had a gun or something in his [right] hand.” Brooks did not see anything in Charlie’s hand, and he did not hear appellant say anything as he left the house. Moments later, Brooks heard “tires going against the gravel” in the alley, and then two or three gunshots coming from the alley. He turned around and saw “[Carter] get hit and all this blood come out [of] his mouth and then [Carter] crashed into [appellant’s] car.” Appellant ran back toward his house, and Brooks, who was still standing on the porch, heard appellant say “Guzzle or Gutter hit my car.” As appellant ran up the porch steps, he bumped into Brooks, and Brooks saw the back of the gun in appellant’s right hand, and also felt the gun as appellant brushed past him. Appellant then fled from the house, running toward Nicholson St., S.E. Charlie “disappeared” after the shots were fired.
Brooks also left the scene, walking in the same direction as appellant. Shortly thereafter, Brooks saw appellant near the intersection of Minnesota Avenue and Nicholson Street, S.E. Appellant approached Brooks, hugged him, told him he was “sorry,” and then continued walking up Minnesota Avenue. Brooks then returned to the scene of the shooting, and was still there when appellant telephoned him and asked whether the police had gone inside appellant’s house. Brooks subsequently received several calls and messages on his cell phone from appellant. In one of the messages, appellant told Brooks to call him back, and said “I want to know if you [are] okay,” and “[w]e [are] supposed to be brothers, call me back.”
Detective Russell-Brown interviewed Brooks on the evening of the shooting and the following day.
3
Brooks told the detec
On September 11, 2007, three days after the shooting, appellant appeared voluntarily at the police Homicide Office, and met with Detective Russell-Brown in an interview room. Two camera pods in the interview room recorded both the interview and the telephone calls that appellant made while he was alone in the room during three brief intervals. During both the first and second calls, which appellant made before he was placed under arrest, appellant told the person to whom he was speaking that “they” — presumably, the police — “know everything.” 5 The telephone calls were played for the jury.
The defense theory was that Charlie Smith was the shooter and killed Carter. The defense presented testimony that, at the time of the shooting, Charlie was under court supervision and was required to wear a GPS tracking device that continuously tracked his movements and reported his whereabouts to a private company that monitored the tracking device. The tracking device transmitted his position to a satellite approximately once a minute. A representative from the tracking company testified that he was able to determine from the tracking data that Charlie was in the 2200 block of Prout Street at the time of the shooting, and that one minute and forty-five seconds after the shooting, Charlie was “down south and to the west of Prout Street,” near the intersection of Minnesota Avenue and 22nd Street. This intersection is about a half block west of the playground toward which Reeves said he saw the shooter run, and is in the opposite direction from where Brooks testified that appellant headed after the shooting.
Mark Wimbush, appellant’s nephew, was returning home to 2220 Prout Street on the day of Carter’s murder when he found the street blocked off by police. Wimbush saw Brooks, whom he knew, standing near the playground across the street from 2220 Prout Street, and asked Brooks what had happened, to which Brooks responded that he did not know. Wimbush later asked Brooks why the police were about to tow Brooks’s car, and again Brooks said that he did not know. Brooks and Wimbush then approached the police and asked why they were towing Brooks’s car, and according to Wimbush, the detective replied “that we know that you know something and until you come and talk to us down at the precinct then we’re going to take your car.” 6
II.
Before trial, appellant moved to suppress evidence of the cell phone calls that he made while left alone in the police interview room. He contended that the calls were “unlawfully seized and intercepted” in violation of the Fourth Amendment and the District of Columbia wiretapping statute, D.C.Code § 23-541 et seq. At the suppression hearing, Detective Russell-Brown testified that appellant contacted her on September 11, 2007, to ask about his Cadillac Escalade, which the police had seized, and thereafter came voluntarily to the Homicide Office. When he arrived, the detective met him and escorted him into an interview room. As shown by photographs of the interview room that the government introduced during the hearing, the room was equipped with two clearly visible camera pods that protruded from the ceiling. Having viewed the video recording and photographs of the room, the trial court observed that the camera pods looked like those that could be seen “in a department store, in a commercial establishment, [and] in a casino.” The cameras began recording before appellant entered the interview room at 2:52 p.m., and continued recording until after appellant was arrested and escorted to another room for booking at about 8:19 p.m.
During the interview, appellant sat in a chan* across from Detective Russell-Brown. The detective did not inform appellant that he was being recorded.
8
The video recording shows that, early in the interview, while both appellant and Detective Russell-Brown were in the interview room, appellant called his mother from his cell phone, and subsequently handed the phone to the detective so that she could speak to his mother. After she handed the phone back to appellant and he completed the call, Detective Russell-Brown told appellant that “we really shouldn’t even have cell phones in here ... with this equipment,” pointing to polygraph equipment that was located on a small table
Appellant made the first of the calls at approximately 5:19 p.m., shortly after Detective Russell-Brown had described to appellant what she viewed to be the facts and the details of the shooting based on her investigation, including that appellant was the shooter. When Detective Russell-Brown stepped out of the interview room for a short period, appellant uttered, while placing a cup over his mouth, “They f* * *ed me. They f* * *ed me.” Appellant then pulled out his cell phone, and very shortly thereafter placed it back in his pocket. The recording device picked up the sound of the cell phone turning on. Appellant looked up, directly at the cameras in the room, removed a baseball cap from his head, placed a call, leaned forward with the baseball cap covering his mouth, and stated, “[T]ell everybody they hip. These mother* * *ers know every[ ]. When I say everything, everything.”
At approximately 5:28 p.m., when appellant was again left alone in the interview room, he took off his baseball cap and placed his hand holding the cell phone inside the baseball cap. Again, the recording picked up the sound of the cell phone turning on. Eventually, appellant pulled the hat over his face and made a second call to someone whose voice was audible over speakerphone. The following exchange took place:
Unidentified: Hello?
Appellant: Tell everybody they know everything. I think Ray snitched.
Unidentified: Who?
Appellant: I think Ray snitched. They know everything.
Unidentified: (unintelligible)
Appellant: I think I’m about to get my ass locked up. Tell everybody they know everything. Bye.
During this call, just before appellant said that he thought he was about to be locked
Appellant made a third call at 6:57 p.m., after he had been placed under arrest and told he was not free to leave. During this conversation, appellant told the other party that he was about to go to jail, and that the police were “putting [him] as the shooter,” that “somebody pointed [him] out as the shooter” and that he was “about to go to jail.” Appellant also said (in an apparent reference to Charlie), “But the only thing they got Gutter as ... just going in the house with me.” Appellant then said that he had “f* * *ed up for good.” Appellant did not cover the cell phone or his mouth when he made this call. 10
In his motion to suppress, appellant argued that Detective Russell-Brown had “lulled [him] into thinking his conversations would be private and confidential” by informing him that their conversation was not being recorded. As a result, appellant argued, he had both a subjective and an objectively reasonable expectation of privacy in the interview room. He argued in addition that the phone calls qualified as “oral communications” under the wiretapping statute, and that the police unlawfully “intercepted” them. The trial court denied appellant’s motion to suppress in a bench ruling, finding that appellant “knew that he was being recorded.” In subsequently issued supplemental findings of fact and conclusions of law, the trial court found that the interaction between appellant and the detective regarding the polygraph machine was focused on that particular equipment, and “did not constitute an assurance that [appellant] enjoyed a private sanctuary for telephone calls.” 11 The court also found that appellant did not exhibit an actual, subjective expectation of privacy, but “[i]n fact, his actions exhibited the contrary,” demonstrating that he “obviously understood that he faced the prospect of surveillance” and “was openly trying to avoid it.” The court further found that appellant “did not have a reasonable expectation of privacy that society is prepared to recognize,” noting that “the unique function and nature of areas controlled by the police mean that courts generally do not recognize a legitimate expectation of privacy in such places.”
With regard to the wiretapping statute, the court noted that an oral communication under the statute is defined as “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.” D.C.Code § 23-541(2). The court found that appellant “did not exhibit an expectation that his calls were free from being the subject of interception,” and that the circumstances would not have justified such an expectation. The trial court therefore concluded that there was no basis for suppressing the calls under either the Fourth Amendment or the wiretapping statute. Appellant argues that the court’s rulings were in error, and asks us to reverse.
When reviewing the denial of a motion to suppress, we defer to the trial court’s findings of fact, but we determine questions of law
de novo. Patton v. United States,
The touchstone of Fourth Amendment right-to-privacy analysis “is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ”
California v. Ciraolo,
As evidence that warranted a finding that he had an actual, subjective expectation of privacy in the police interview room, appellant cites the “great lengths” he went to in order to hide his cell phone from the view of the surveillance cameras and his having “spokefn] at a regular volume.” These, he contends, show that he did not believe there was sound recording in the interview room and that he was “concerned [only] with visual monitoring.” The government, by contrast, argues that appellant “attempted] to muffle his voice with his cap,” a “clear indication that he suspected he might be overheard,” and thus did not have a subjective expectation of privacy. The government also urges that appellant’s having underestimated the capability of the recording equipment that was in plain view was not the same thing as believing he had privacy. 12
We think the government has the better of the argument. First, we accord “considerable deference” to, and discern no error in the trial court’s factual infer
Even if we assume, however, as appellant urges, that he manifested a subjective expectation of privacy as to sound (though not sight) as he made his phone calls in the interview room,
15
we still would not grant appellant the relief he seeks, because we agree with the trial court’s legal conclusion that appellant did not have an objectively reasonable expectation of sound privacy. To begin with, courts have held that individuals do not typically have a reasonable expectation of privacy in police interview rooms.
Cf. Belmer v. Commonwealth,
Whether circumstances would have given rise to a legitimate or objectively reasonable expectation of privacy is a mixed question of law and fact that we review
de novo. United States v. Cooper,
In short, we sustain the trial court’s ruling that appellant had neither a subjective nor an objectively reasonable expectation of privacy in the interview room. As the two prongs of the Katz test were not met, the trial court did not err in denying appellant’s motion to suppress the statements he made during the cell phone calls he placed while left alone in that room.
III.
We turn now to appellant’s insufficiency claim. In reviewing a claim that the evidence was not sufficient to sustain a conviction, we examine the evidence in the light most favorable to the government,
Hammon v. United States,
Appellant contends that the government did not adduce enough evidence to prove beyond a reasonable doubt that appellant was “the person who actually shot and killed” Carter. There was, appellant charges, a “disconnect between the evidence adduced and the theory of prosecution,” since the evidence, including the government’s own evidence, was “nearly overwhelming” that Charlie, not appellant, was the shooter. Therefore, according to appellant, “no reasonable juror could even find it highly probable that [appellant] shot and killed Leon Carter— much less find [appellant] guilty beyond a reasonable doubt.” 18
Furthermore, there was strong circumstantial evidence that appellant was the shooter. 20 Appellant fled the scene moments after the shooting, and shortly thereafter, approached Brooks, hugged him, and apologized — conduct from which the jury could reasonably have inferred appellant’s consciousness of guilt. Telephone records corroborated Brooks’s testimony that appellant called him repeatedly after the shooting, expressing concern about whether the police had gone to his house and telling Brooks that they were “supposed to be brothers.” The jury could reasonably have inferred that appellant was worried that Brooks would talk to the police and tell them what Brooks ultimately did tell them — that appellant carried the gun both before and after the shooting. 21
The telephone calls, in which appellant said that the police “know everything,” further provide evidence of appellant’s guilt. Although appellant argues that at the point the first phone call was made, the detective had not accused appellant of being the shooter, it is clear from the transcript that the detective believed appellant was the shooter and had made that clear to him. For example, when appellant stated “[t]hey think I’m the shooter?,” Detective Russell-Brown responded, “[c]ome on ... [w]hat do you think?” It was after that exchange that appellant told the first person he called that the police were “hip” and knew “everything.” In the second call, appellant said that he thought “Ray snitched” and repeated that “[t]hey know everything.” In the third call, after appellant had been arrested, appellant told “Butch” that the police had tagged him as “the shooter,” and that he had “f* * *ed up for good.” A jury could reasonably have found these statements to be both incriminating and powerfully corroborative of the eyewitness evidence about appellant’s actions. 22
Appellant argues that the “most troubling” aspect of the government’s case was that Reeves testified that the shooter fled in one direction (the direction in which the evidence showed Charlie fled), and that Brooks testified that appellant fled in the opposite direction — a discrepancy that the prosecutor conceded in his closing argument. However, there was evidence that David Arrington, who weighed about the same as appellant, had come out of a nearby house at about the time of the shooting, had started walking toward appellant’s house, and was in the middle of the street when the shots were fired. The government argued to the jury that it was possible that Arrington ran in the same direction as Charlie and that, in the chaotic aftermath of the shooting, Reeves mistook Arrington for appellant. As the government points out, Reeves was not confident in his assessment of which way the shooter fled, stating that by that time he “was focused on” the victim Carter, that he saw people “scatter,” and that the shooter “might [have] turned the corner [in] another direction, but [he] wasn’t sure.” Once again, it was the jury’s prerogative to accept or reject those or other possible explanations for the discrepancies and to decide what evidence to credit. 24
Finally, we address the other evidence that appellant argues rendered the evidence “nearly overwhelming” that Charlie rather than appellant was the person who killed Carter: Brooks’s testimony that appellant, as he was running toward the house after gunshots were heard, said “Gutter hit my car.” According to appel
During their deliberations, the jury had all the information appellant relies upon to argue that the evidence was insufficient. Reeves and Brooks were thoroughly cross-examined regarding their inconsistent statements, and the jury had the opportunity to hear the differences fully explored and to view the witnesses’ demeanor on the stand and to assess their credibility during several days of testimony. It was up to the jury to decide whether to believe Reeves and Brooks, and they “weigh[ed] the evidence, determine[d] the credibility of the witnesses and ... dr[ew] reasonable inferences from the testimony” in such a way that they convicted appellant. (Bart-rand)
Dickerson,
Wherefore, the judgment of conviction is
Affirmed.
Notes
. Reeves received a letter of use immunity and was ordered to testily.
. After Reeves had returned home following the shooting, he was with his friend Michael Tindle when the two saw some young men driving a van through the alley behind Reeves’s house, followed by another young man on foot. Reeves pointed to the man on foot and, according to Tindle, said he was "the dude who killed [Carter].” However, Reeves had already told Tindle that the man who shot Carter was "fat,” and the man in the alley looked nothing like that description. Tindle recognized the man on foot as their friend "Dino,” and told Reeves who it was, at which point Reeves agreed that it was Dino,
Although Reeves told Tindle shortly after the shooting that there was a second gunman whose gun jammed, he later told Tindle that there was only one person with a gun and testified at trial that he saw only one person with a gun — appellant.
. Brooks initially told the police he did not know anything about the shooting, but after Detective Russell-Brown spoke to him about obstruction of justice and conspiracy to commit murder, and stated that "if you fool around with this fire you’re going to get burned,” Brooks agreed to talk. He denied that he told Detective Russell-Brown that he saw appellant with a gun simply because the police were pressuring him.
.Detective Russell-Brown also showed the same photo array to Reeves, and asked him whether he recognized anyone from the day of the shooting. Reeves responded by saying "[i]t ain't none of them.” Reeves testified that he only "[s]omewhat” looked at the man who was with the shooter, because his focus "was more [on] the person with the gun.”
. The calls are described in more detail infra.
. Appellant also called a series of character witnesses, who testified that he had a reputation in the neighborhood for being "peaceful.”
. On cross-examination, however, Curley admitted that he told the grand jury that he could not say that appellant was not the shooter.
. A photograph of one of the two doors to the interview room, introduced at both the suppression hearing and at trial, shows that the door had a sign on it that refers to using the "VRS system as a backup” to another system ”[w]hen conducting interviews.” However, there is no discussion in the record about whether this is a reference to recording devices. Detective Russell-Brown testified at the suppression hearing that the door in question was "an entrance door” to the interview room, and that the photograph, although "substantially show[ing] the appearance of the room as it appeared when [appellant] was taken or went into that room,” was taken "[s]ometime later” than the interview. The record does not indicate whether the sign was on the door on the day of appellant's interview, and, in any event, it appears from the videotape that appellant entered the interview room through a different door.
. At the suppression hearing, the parties told the court that they did not agree about whether Detective Russell-Brown’s words were "To the System?” or "Through the system?.” We have used appellant's interpretation in the text above.
Detective Russell-Brown denied trying to mislead appellant into thinking that he was not being recorded. She testified that appellant’s "particular attention,” as well as her own, "was simply on that device and it being a polygraph.” She testified that it was her feeling that appellant "was concerned about being polygraphed, because he also showed some concern about the polygraph chair and not wanting to sit in the polygraph chair. So I was trying to relieve his feelings about the polygraph system altogether.” Her comments about the polygraph chair appear to refer to appellant’s having said, upon first entering the interview room, that he did not want to sit in the "comfortable chair” (that was alongside the polygraph equipment) because it "feel [sic] like The First 48 chair” (an apparent reference to the television show "First 48,” which follows real-life homicide investigations and shows police interviews of criminal suspects).
. The trial court required the government to show the jury the recording of the third phone call for purposes of "completeness.”
. The trial judge based this conclusion on what he saw and heard on the video recording and on the testimony of Detective Russell-Brown, which he found to be credible.
. The government asserts that Metropolitan Police Department General Order 304.16 requires the police to record interviews in their entirety, from the time a subject first enters the interview room until the subject leaves the interview room. However, that Order applies to custodial interrogations, and as the trial court found, appellant was not in custody at the time of the first two telephone calls. See "Electronic Recording of Custodial Interrogations,” M.P.D. General Order 304.16 (Feb. 2, 2006) (noting that police have "the responsibility to electronically record interrogations for all crimes described in this directive for those who have been arrested, or whose freedom of movement has been restrained to the degree associated with a formal arrest”). Thus, even if we posit that appellant knew about General Order 304.16, that alone would not undermine his argument that he did not know that there was pre-arrest sound recording in the interview room.
. We took the same impression upon reviewing the video recording ourselves, and would reach the same conclusion even if our role were to decide the issue de novo.
. Detective Russell-Brown testified that it was not until she reviewed the videos a day or two after her interview of appellant that she saw that he had made phone calls while alone in the interview room.
.Cf. Katz,
. The trial court found that appellant "was not asking about, nor was he given, assurances about the visible camera pods in the room or surveillance generally."
. As already noted, Detective Russell-Brown asked appellant to turn off his phone early during the interview, and when he later asked whether he could use it to place another call to his mother, she reminded him, "I told you about — not up here.” Nevertheless, a few minutes later, appellant placed the second of his recorded phone calls.
This case is unlike the cases on which appellant heavily relies:
State
v.
Munn,
. Appellant acknowledges that the government did ”muster[] a certain quantum of proof that [appellant] may have aided and abetted in the murder," but emphasizes that the government did not pursue an aiding and abetting theory at trial and that the jury did not receive an aiding and abetting instruction. Therefore, appellant contends, even if the evidence was sufficient for the jury to find that appellant aided and abetted Carter’s murder (though not himself pulling the trigger), the absence of an aiding and abetting instruction means that appellant’s murder and PFCV convictions cannot stand. In the Rule 28(k) letter that he filed to address the "proper evaluation of evidentiary sufficiency claims where the jury was not instructed on a particular theory of liability,” appellant cites several cases from other jurisdictions holding that ”[b]ecause no aiding and abetting instruction was given to the jury, [defendant’s] substantive offense conviction cannot rest on that basis.”
United States v. Basey,
In
Neder,
the Supreme Court upheld a conviction for tax fraud even though the trial court’s instruction to the jury erroneously omitted the "materiality” element of the of
Here, the jury convicted appellant of the crime itself. It could hardly have reached that conclusion and have left any possibility that it would have acquitted appellant of aiding and abetting the crime. There is no element of aiding and abetting the crime that was not found by the jury, and no defense that was not rejected by it. Aiding and abetting instructions do not provide a defense. Rather, they provide an additional theory of guilt. The error was therefore entirely harmless.
Id.
at 199-200. Similarly, here, without having heard an aiding and abetting instruction, the jury convicted appellant of the first-degree murder of Carter and of PFCV and CPWL. The jury "could hardly have reached that conclusion and left any possibility that it would have acquitted appellant of aiding and abetting” those crimes,
Abozid,
In any event, because we are satisfied that the evidence was sufficient to sustain appellant's conviction as the shooter, we need not decide in this case whether a conviction may be sustained under an aiding and abetting theory where no aiding and abetting instruction was given.
. As we have frequently observed, "[a] certain amount of inconsistency in the evidence is almost inevitable at any trial, but it rarely justifies reversal.”
In re A.H.B.,
. "[C]ircumstantial evidence may be equally as probative as direct evidence.”
Head v. United States,
. Such an inference reasonably could have been bolstered by appellant’s statement, in one of his phone calls, that he thought that "Ray” (Brooks) "snitched.”
.Defense counsel emphasized to the jury that, during the videotaped interview with Detective Russell-Brown, appellant told the detective, "I know I can tell you what ... happened, and I can go home” and "[i]f I tell you the truth, it’s going to make me a snitch.” Defense counsel argued that appellant would not have made these statements about "going home” and being a "snitch” if the "truth” had been that he was the shooter. The inference that defense counsel urged the jury to draw might have been one reasonable interpretation, but the jury was not compelled to
. There also were discrepancies in Reeves’s and Brooks’s descriptions of the second man (Charlie). Reeves said that the second man had long dreads and was clean shaven; Brooks said that Charlie had low-cut hair and a small mustache. But both described the man as being about 5'5" and possibly in his late teens (Reeves said 16-17 years old, Brooks said 19-20 years old).
. Jury notes show that the jury was focused on the details of the discrepancies in the testimony. One jury note asked when Reeves was able to see the shooter wearing Nike boots. In another note, the jury asked to see photographs of Charlie Smith and David Ar-rington.