Multiple Shootings, Mutliple Defendants, Multiple Issues Leads to Affirmance in South Capitol Street Case

Bost et al. v. United States (decided February 15, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Ferren. Opinion by Chief Judge Blackburne-Rigsby. Kristina A. Crooks for Mr. Bost. E. Benton Keatley, Jeffrey T. Green, Lowell J. Schiller, Karen S. Smith, and Blair J. Greenwald for Mr. Best. Thomas T. Heslep for Mr. Williams. PDS for Mr. S. Carter. R. Trent McCotter, Jessie K. Liu, and Michael W. Khoo for Mr. O. Carter. Trial Judge: Ronna Lee Beck.

Facts: The Carter brothers (Sanquan and Orlando), along with Best, shot and killed Jordan Howe on Alabama Avenue in retaliation for the suspected theft of Sanquan’s bracelet. Sanquan was arrested shortly after that shooting and played no role in subsequent events. The following day, a group of Howe’s associates shot and wounded Orlando. In retaliation for that, Bost, Orlando, Best, and Williams planned to attack Howe’s funeral. The group first planned to rob Tavon Nelson for his gun. Best and Bost carried out the robbery, which turned into a shootout that left Nelson dead. The group then did a drive-by shooting of a house on South Capitol Street where Howe’s friends had gathered after the funeral, leaving three dead and several wounded.

Issue 1: Should Sanquan’s case have been tried separately from the others on the ground that he was charged in connection with only the Alabama Avenue shooting? Same as to Bost, who was charged in only the South Capitol Street shooting?

Holding 1: No. Although the issue was not “an easy one,” the charges from the Alabama Avenue and South Capitol Street shootings were properly joined under Super. Ct. Crim. R. 8(b) as part of “the same series of acts or transactions.” Although there was an intervening event — the shooting of Orlando — between the Alabama Avenue and South Capitol Street shootings, there was still a causal connection between them, which is sufficient to make the latter a “sequel” to the first crime. The DCCA rejected the government’s alternative argument that the two shootings were part of a “common scheme or plan.”

Severance was not required to prevent prejudice from the presentation of evidence as to the shootings in which Sanquan and Bost were not involved. Because both were “active participants in conspiracies to commit first-degree murder,” their complicity in the overall venture is not “de minimis.” The evidence was not “so complex or confusing that the jury could not make individual determinations about the guilt or innocence of each defendant.” And “the trial court made efforts to ensure that the jury was not confused about the charges,” by reminding the jury that Sanquan and Bost were not charged with certain offenses, instructing the jury that certain statements could not be used against one or the other, and giving a “strongly worded curative instruction,” in response to the prosecutor’s rebuttal argument, that Sanquan had no responsibility for the South Capitol Street shooting.

Issue 2: Was there a risk of a coerced verdict because a juror reported “pressure from many members of the group to change my mind regarding my vote on particular counts on which we disagree”?

Holding 2: No. The potential of coercion from the note was low, because the juror did not report pressure from the entire group, or that they disagreed on all counts. The identity of the juror was not revealed in open court, “making it less likely that the juror felt undue pressure from the rest of the jury.” The exact division of the jury was (theoretically) unknown. No verdict had been announced, and the court did not give an anti-deadlock instruction. The note did not report any improper behavior during deliberations, only that they were “spirited.” Because the coercive potential was low, the trial court appropriately gave a “neutral, even ‘bland,’ instruction” in response, asking them to resume deliberations and remain civil. An anti-deadlock instruction would have been premature “as there was no indication that the jury was deadlocked at the time of the note.”

Issue 3: Was Best’s trial counsel ineffective for failing to move to suppress Best’s videotaped interrogation on Miranda grounds?

Holding 3: No. Best’s attorney reasonably believed that the factual allegations supporting the motion suppress “were not true.” In addition, the motion to suppress would have been futile because the incriminating portions of the video came in response to questioning by Best’s mother, not police.

Issue 4: Was a mistrial required due to the prosecutor’s conduct during opening — referencing the “Equal Justice Under Law” inscription on the Supreme Court building; asserting that the government’s role was to “fairly enforc[e] the criminal laws”; and decrying “vigilante justice” — and closing — characterizing certain government witnesses as “heroes,” one of whom was doing “God’s work”; asserting that the jury should be “proud” of the police investigation; presenting a blown-up photo of a murder victim that elicited an emotional response in the courtroom; and pleading that the victims’ families were asking for “justice” rather than vengeance?

Holding 4: No. The prosecutor’s comments during opening statement “did not appear to cross the line of permissible opening statements, as the comments were not argumentative.” Even if they were improper, they were “not so grave as to warrant a mistrial.” The trial court’s curative instruction after the openings to base their verdicts on evidence rather than emotion was an appropriate response.

The prosecutor’s statements in closing that the jury should be proud of the police and characterizing certain witnesses as heroes were “not improper when considered in context.” These statements did not “urge the jurors to place themselves ‘in the position of the victim,’ nor did the statements rise to the level of an appeal ‘to the jury’s emotions.’” The prosecutor’s comment about the families asking for justice rather than vengeance “may have appealed to the sympathy of the jurors,” but did not rise to the level of improperly “asking the jurors to ‘send a message to the defendant[s]’ or to the community with their verdicts.” The use of the photograph was not improper because it was admitted into evidence.

Issue 5: Should the trial court have instructed the jury on withdrawal from a conspiracy because Williams left the vehicle before the South Capitol Street shooting, saying, “Y’all about to go commence. Y’all can let me out right here”?

Holding 5: No. To withdraw from a conspiracy, one must act to “disavow” or “defeat the purpose” of the conspiracy. Simply leaving the scene is insufficient to establish withdrawal.

Of Note:

• The DCCA rejected an argument based on a malfunctioning courtroom “husher,” reasoning that there was no evidence any of the jurors actually overheard any of the bench conferences.

• The DCCA also rejected an argument for a change of venue due to adverse pretrial publicity because a change of venue is generally unavailable in Superior Court, and the jurors empanelled had not been influenced by media reports on the case. 

• The DCCA held that Best’s non-verbal “confession” to his mother, and a verbal confession to a friend, were properly admitted as statements against penal interest. 

• The DCCA rejected a number of other issues summarily. Although the court “question[ed] whether the government needed to present testimony from four mothers of the victims,” it ruled that this did not show that the jury decided the case based on emotion. The court held the trial judge did not improperly curtail cross-examination of a cooperating witness. And the court held that the trial court did not err in precluding evidence that the cooperator fired a gun in 2007. DG

Read the full opinion here.

Two iPhone Snatchings On Metro Should Have Been Tried Separately

Alazajuan Gray & Clifton Smith v. United States (decided October 20, 2016).

Players: Associate Judges Fisher and Beckwith, Senior Judge Newman.  Majority opinion by Judge Fisher. Opinion concurring in part and dissenting in part by Judge Beckwith. Matthew Leefer for Mr. Gray.  Marie Park for Mr. Smith.  Trial Judge: Herbert Dixon.

Facts: This case involves two separate Metro robberies.  First, on September 21, 2012, at around 11:00 p.m., three black men, including Mr. Gray and Mr. Smith, approached the complainant, Gerald McIntosh, as he was riding the train downtown from the Silver Spring Station. Mr. Gray brandished a gun and took an iPhone and $20 from Mr. McIntosh, and as he left the train, he warned Mr. McIntosh not to snitch.

A week later, on September 28, Mr. McIntosh saw Mr. Gray and Mr. Smith again, this time at the Fort Totten Station.  When Mr. McIntosh saw the two men walking towards him, he took off running to the station manager’s kiosk.  Mr. Gray and Mr. Smith chased him.  When they reached the kiosk, Mr. Smith yanked open the kiosk door and asked Mr. McIntosh whether he was snitching.  Mr. McIntosh replied that indeed he was, so Mr. Smith punched him in the face.  The station manager broke it up and Mr. Gray and Mr. Smith ran away.  Metro police responded to the scene and arrested Mr. Gray and Mr. Smith after a showup.  At trial, officers described Mr. Gray as a black man with short hair who was wearing a blue and yellow hat and a dark blue or dark colored shirt.

An hour before Mr. Gray and Mr. Smith confronted Mr. McIntosh at Fort Totten, Katherine Takai boarded a yellow line train at Pentagon City heading downtown.  Three black men standing together on the train piqued her interest.  As the train reached Gallery Place, one of the men snatched her phone, and when she tried to chase him, the other two blocked her way.  Later that night, police officers found the phone in a park outside the Fort Totten Station, where police had detained Mr. Smith during the showup.  Ms. Takai was not able to identify the robbers either in a photo array or at trial. She could only testify that the guy who snatched her phone had short hair and was wearing a light blue shirt, and one of the guys who blocked her way was wearing a white t-shirt and had dreadlocks.

The robberies were tried together, and appellants were convicted of (among other crimes) armed robbery of Mr. McIntosh and unarmed robbery of Ms. Takai.

Mr. Smith and Mr. Gray raised a number of issues on appeal, the two most prominent being:

Issue 1: Whether the government erred in joining the two robberies and whether the trial court erred by denying severance.

Ruling: The court did not decide the issue of whether the government erred by joining the two offenses, although it had “serious doubts that the robberies in this case were properly joined.” The Court instead ruled that the trial court reversibly erred by refusing to sever the robbery cases. The Court reasoned that the evidence of the two robberies failed to satisfy the mutual admissibility requirement of other crimes evidence in joint trials, given that none of the evidence of the September 21 robbery was admissible to prove the September 28 robbery.  The government argued that the evidence was mutually admissible to prove the identity of the assailants.  The Court was “doubtful” that it should “consider this argument” because the prosecutor below argued that the government was not planning to use the similarities between the robberies to prove the identities of the assailants.  Even so, the Court found that it was not proper identity evidence, given the key differences between the two robberies, including one was an armed robbery by force designed to humiliate the complainant, while the other was a stealthy snatching after which the robbers ran away. 

The Court ruled that the general taking of cell phones on the Metro is far too commonplace to be probative of identity.  It also rejected the government’s argument that the earlier robbery was necessary to put the later robbery in context because the first robbery “did not explain any aspect” of the second robbery.  Finally, the Court concluded that the evidence of the first robbery was highly prejudicial because “the much stronger evidence” of that robbery “would necessarily alter the jury’s perception” of the later robbery.  With the introduction of the evidence regarding the earlier robbery, the “simple phone snatching” now looked like “the work of an experienced gang of robbers.”  The Court therefore vacated appellants’ unarmed robbery convictions.

Issue 2: Whether there was sufficient evidence to convict Mr. Gray of the unarmed robbery of Ms. Takai.

Ruling: Yes.  The majority acknowledges that the evidence was “not overwhelming,” but reasoned that the evidence was sufficient because Mr. Gray matched Ms. Takai’s description—African American male with a blue shirt.  Mr. Gray admitted to being at Gallery Place and that he later travelled with Mr. Smith—who also matched Ms. Takai’s description of one of the robbers.  There was video of Mr. Gray and Mr. Smith at Fort Totten together that suggested “more than simultaneous presence.” And the jury knew that Mr. Gray and Mr. Smith were accomplices in the robbery of Mr. McIntosh. 

Dissent: Judge Beckwith dissented.  First, Judge Beckwith noted that Ms. Takai’s description of the person alleged to have been Mr. Gray added little to the sufficiency calculus because it was both vague and imperfect: Ms. Takai said the robber was a black man wearing a light blue shirt while Mr. Gray was wearing a dark blue shirt at the time of his arrest.  Judge Beckwith found the fact that Mr. Gray was at Gallery Place inconsequential given that “Gallery Place is a busy transfer station connected to the Fort Totten station by the yellow, green, and red lines,” thus this fact did not “meaningfully bolster what can already be inferred from the fact that Mr. Gray was later seen at Fort Totten station.”  Judge Beckwith thought that the video of Mr. Gray and Mr. Smith together at Fort Totten was “worth very little, given that an hour passed between the two incidents and the later incident occurred at a different Metro station, miles away.”  Finally, Judge Beckwith explained that while the Court must consider all of the evidence before the jury when faced with a sufficiency challenge, the earlier robbery of Mr. McIntosh was very different from Ms. Takai’s robbery and thus only a weak inference could be drawn from the earlier robbery.  Moreover, consideration of the earlier robbery was improper for this particular sufficiency analysis because evidence of the earlier robbery was only helpful insofar as it raised a propensity inference—because Mr. Smith and Mr. Gray committed an earlier robbery together, it was more likely that they would rob together again—and the law forbids such inferences, especially when, as was the case here, the jury was instructed against drawing propensity inferences. 

Of Note:

• Mr. Gray argued that two of his three convictions for violating D.C. Code § 23-1328(a)(1), committing an offense during release, should merge under the Double Jeopardy Clause because they were both committed on the same day.  The Court rejected this argument but directed the trial court to “reform the judgment” to show the § 23-1328 violations as enhancements and not standalone offenses.

• Consult the opinion for the Court’s discussion of the rest of the issues, including: 
• Whether the trial court erred by not severing the contempt charge against Mr. Gray.  Answer:  it didn’t. 
• Whether the trial court plainly erred by not instructing the jury that an unarmed aider and abettor must have “actual knowledge” that the principal was armed.  Hint:  see above. 
• Whether the trial court erred by refusing to allow the defense eyewitness identification expert to testify about the accuracy of the specific identification made by McIntosh.  Hint:  same.  DH

Read full opinion here.