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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 04-CF-253, 10-CO-386, 04-CF-483, 10-CO-385, 11-CF-1130, 11-CF-1131
04-CF-287, 10-CO-396, 04-CF-297, & 10-CO-395
HARRELL E. HAGANS,
BRION X. ARRINGTON,
WARREN N. ALLEN,
AND
GARY A. LEAKS,
APPELLANTS,
V.
UNITED STATES,
APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(F-5226-00, F-5199-00, F-6780-00 & F-6595-00)
(Hon. Robert I. Richter, Trial Judge)
(Argued June 13, 2012 Decided June 5, 2014)
Veronice A. Holt for appellant Harrell E. Hagans.
Lisa H. Schertler, with whom David Schertler was on the brief, for appellant
Brion X. Arrington.
2
Matthew D. Krueger, with whom Jeffrey T. Green and Matthew J. Warren,
were on the brief, for appellant Warren N. Allen.
Matthew M. Hoffman, with whom Barbara E. Rutkowski and Nicholas J.
Kim were on the brief, for appellant Gary A. Leaks.
Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald
C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United
States Attorney at the time the brief was filed, and Michael D. Brittin and Seth P.
Waxman, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID,
Senior Judge.
GLICKMAN, Associate Judge: On April 25, 2001, appellants Harrell Hagans,
Brion Arrington, Warren Allen, and Gary Leaks were indicted for conspiring to
assault and kill members, associates, and friends of a criminal enterprise known as
the “Mahdi Brothers organization,” and for committing first-degree murder while
armed and related crimes in furtherance of that conspiracy. All four appellants
were charged with the May 17, 2000, murder of Eva Hernandez. Appellants
Arrington and Hagans were charged in addition with the February 29, 2000,
murder of Danny Webb.
While appellants were awaiting trial, several other indictments were returned
against Arrington. Two of them charged him with assault with intent to kill while
armed (“AWIKWA”) and related weapons offenses in connection with the
shootings of Antonio Tabron on January 24, 1999, and Robert Nelson on January
3
30, 2000. On the government‟s motion, these two AWIKWA indictments against
Arrington were joined for trial with appellants‟ earlier indictment. Appellants‟
joint trial commenced on September 23, 2003, and continued for ten weeks. On
December 3, 2003, the jury rendered its verdict, finding appellants guilty on all
counts as charged.
The trial court proceedings in this case were lengthy and complex, and
appellants challenge their convictions on numerous grounds. We find that some of
their claims are not without merit. Indeed, the government now concedes one error
of constitutional magnitude, involving its introduction of testimonial hearsay in
violation of appellants‟ Sixth Amendment rights of confrontation. Nonetheless, we
conclude that the errors were few in number and not consequential enough to
warrant reversal of appellants‟ convictions.
I. The Evidence at Trial
According to the government‟s evidence at trial, appellants were members of
the so-called Delafield gang, a group of men who, among other things, sold
marijuana in the area around Delafield Place in Northwest Washington, D.C. A
number of witnesses testified about the Delafield gang and its activities. Five
former members of the gang, cooperating with the prosecution in accordance with
4
plea agreements, were among the key witnesses against appellants. In 1999 and
2000, the period encompassed by the indictments, appellants Arrington and
Hagans, along with cooperating witness Kevin Evans, were the putative leaders of
the Delafield gang, while appellants Allen and Leaks and cooperating witnesses
Charles Payne, Marquet McCoy, Sean Gardner, and Jason Smith were lower-
ranking members. Gardner stored and maintained many of the gang‟s assault
weapons and other firearms, while Jason Smith specialized in stealing cars for
gang members‟ temporary use.
The shootings at issue in this case were allegedly committed in the course of
a violent feud between the Delafield gang and a rival drug gang led by five
brothers—Abdur, Nadir, Rahammad, Malik, and Musa Mahdi—who lived in the
1300 block of Randolph Street in Northwest Washington, D.C. A number of
former members and associates of the Mahdi brothers‟ organization testified about
the shootings pursuant to cooperation plea agreements. (None of the Mahdi
brothers themselves appeared as a witness at appellants‟ trial. However, as we
shall discuss, the jury heard redacted versions of factual proffers to which four of
the brothers had assented when they pleaded guilty to federal charges.) It was
unclear how the feud began—it may have started with the shooting some time prior
to 1996 of a Delafield gang member named Steve St. John—but it began to
5
escalate in 1999 with the shooting of a Mahdi gang member named Antonio
Tabron.
A. The Shooting of Antonio Tabron on January 24, 1999, and its
Aftermath
The principal testimony about this shooting was provided by Delafield
cooperator Kevin Evans. On the evening of January 24, 1999, according to Evans,
Arrington informed him that Antonio Tabron was parked in front of Arrington‟s
house near an alley in the 300 block of Decatur Street. The two men proceeded to
the alley, where they encountered Steve St. John, whom Tabron supposedly had
shot in 1996. Arrington handed his 9-millimeter Ruger handgun to St. John so he
could retaliate. Shaking, St. John said he could not do it. Arrington took back his
gun, fired a number of shots at Tabron‟s car, and continued to shoot as he backed
into the alley and disappeared from Evans‟s sight. Tabron‟s car swerved onto the
sidewalk and stopped in a front yard on Decatur Street. Police called to the scene
found Tabron, who was wounded in the leg, hiding behind a house there.
As various witnesses, including cooperating Mahdi and Delafield gang
members, testified, the shooting of Tabron initiated a series of retaliatory actions.
On the night following the shooting, Tabron‟s brother Antoine drove to the
Delafield neighborhood with Musa and Nadir Mahdi and others. They shot at a
6
group of men near the corner of Delafield Place and Fourth Street but did not hit
anyone. Evans testified that he witnessed this shooting from his apartment window
with Arrington and Hagans. According to Evans, Arrington identified the shooters
as Mahdi gang members and said the Delafield gang needed “to get some guns and
put a stop[] to it.”
A month later, on February 28, 1999, masked gunmen attacked and shot
Delafield gang member William Ray on the street shortly after he left a meeting
with Arrington, Hagans, Evans, and Charles Payne to go sell marijuana.1 The
shooting left Ray paralyzed. The Delafield gang attributed the shooting to the
Mahdis; Ray told Evans he believed it was in retaliation for the shooting of
Tabron. A few days after that, in early March, Antoine Tabron and Nadir Mahdi
attempted to shoot Payne after following him home from a nightclub. 2 Payne
escaped without injury because their guns jammed. Sometime after this, according
to Payne and Evans, another Mahdi gang member shot at them while they were in
Evans‟s car.
1
Payne and Evans witnessed the shooting and testified about it at trial.
2
Payne and Tabron both testified about this incident.
7
B. The Shooting of Robert Nelson on January 30, 2000
The primary witness to the next charged shooting was Evans. Early on the
morning of January 30, 2000, as he and Arrington left The Palace nightclub and
walked to their cars, a white car pulled up and a man got out. Evans saw Arrington
reach into the trunk of his car, pull out a .45-caliber gun, and begin shooting at the
man, who fell to the ground. Shots then rang out from other quarters, and
Arrington stopped shooting, closed the trunk of his car, and fled on foot.3
Arrington told Evans the next day that he was shooting at Robert Nelson, a Mahdi
gang member whom Evans had not recognized. Nelson sustained bullet wounds in
his hip, groin, and leg, but he survived.
C. The Murder of Danny Webb on February 29, 2000
Evans and Payne testified that on the morning of February 29, 2000, Payne,
at Arrington‟s instruction, drove Arrington, Hagans and Evans into Mahdi
territory. As they came to the corner of Thirteenth and Taylor Streets, Hagans
noticed Danny Webb, a Mahdi gang member, and pointed him out to the others.
3
Two cooperating former Mahdi gang members, Hooker and Tabron,
testified that Nadir Madhi later told them it was he and another Mahdi who had
returned Arrington‟s fire.
8
Arrington declared they should “light him up.” Payne pleaded with them not to
hurt Webb, who was his friend, but Arrington and Hagans ordered him to pull up
to Webb and stop the car, which he did. While Payne remained seated, Arrington,
Hagans and Evans exited the vehicle. The three men shot at Webb, chasing him
into an alley before eventually returning to their car and driving off. A neighbor
saw Webb flee down the alley and collapse at his front porch. Webb suffered nine
gunshot wounds and died later that day.4
D. Further Shootings in the Wake of Webb’s Murder
The murder of Webb was followed in the next several weeks by a number of
shooting incidents involving Delafield and Mahdi gang members.5 Not long after
Webb‟s funeral, three of the Mahdi brothers drove with other members of their
gang to the Delafield neighborhood and surprised a group that included three of the
appellants—Arrington, Hagans, and Allen—as well as Evans, Payne, and Marquet
McCoy. There was a brief exchange of gunfire, in which no one was injured.
Next, on March 12, 2000, Hagans and Arrington, accompanied by Evans, fired on
4
As part of their cooperation plea agreements, Evans and Payne each had
pleaded guilty to second-degree murder for their participation in Webb‟s shooting.
5
Testimony about these incidents was provided by cooperating witnesses
from both gangs.
9
a car in which they thought Mahdi gang members were riding. One of the
vehicle‟s occupants, who was not a member of the Mahdi organization, was
injured.
Two months later, on May 10, 2000, Jason Smith drove Hagans and
Arrington in a stolen car to the 3900 block of Fourteenth Street, where the three
men fired shots at suspected Mahdi gang members, apparently including
Rahammad Mahdi. In revenge, Abdur and Nadir Mahdi returned to Delafield
territory that night and shot at Payne and McCoy, wounding the latter. According
to Payne, members of the Delafield gang, including all of the appellants here,
discussed the need to retaliate against the Mahdis. Approximately four days later,
Arrington and Hagans armed themselves with assault rifles and, with Payne
driving, went looking for Mahdi gang members. When they arrived, eventually, at
the intersection of Fourteenth and Monroe Streets, Northwest, Arrington and
Hagans got out and started shooting at an individual who fled on foot down
Monroe Street. (Payne, who recounted this incident at trial, could not tell who the
targeted individual was and did not know if anyone was injured in the shooting.)
10
E. The Murder of Eva Hernandez and Shooting of Gloria Flores-Bonilla
on May 17, 2000
At around 5:00 in the afternoon on May 16, 2000, Payne drove Arrington,
Hagans, and Leaks in Evans‟s burgundy Chevy Caprice down Fourteenth Street on
what was apparently a reconnaissance expedition to “see,” as Payne testified, “if
there was anything out.”6 From James Hamilton‟s front porch at 3924 Fourteenth
Street,7 the Caprice was observed by Nadir Mahdi. He left the porch, ran after the
car, and started shooting at it with a handgun.8 Its occupants, being without their
weapons, did not return his fire. They drove off unhurt, though the vehicle was hit
by several bullets. Payne recounted that on their way back home, Arrington and
Hagans vowed revenge, saying that they were “going to go back down there and
light them [Mahdis] up.” Arrington stated that he would have Jason Smith steal
some cars so they could return to Fourteenth Street to retaliate.
6
Evans was not with them. He had been arrested on May 9, and was not
released until May 19, 2000.
7
Hamilton, one of several witnesses who testified about this incident at
trial, allowed the Mahdi gang to use his porch to deal drugs.
8
At trial, both Payne and Hamilton described the incident and identified
Nadir Mahdi as the shooter. Nadir Mahdi admitted he was the shooter to David
Tabron, a gang member who also testified. In addition, as we discuss below, the
jury heard that Nadir Mahdi admitted to this shooting when he pleaded guilty in
federal court.
11
Later that night, Smith, Hagans, Arrington, and Payne went out and stole
two Honda Accords, one gray and the other burgundy.9 In a meeting with Allen
and Leaks at an alley near Hagans‟s house, it was agreed that Payne and Smith
would drive the group in the two Accords to Fourteenth Street, where appellants
would emerge from the vehicles and shoot Mahdi gang members. The six men
then went to Sean Gardner‟s apartment building to obtain firearms for Allen and
Leaks.
Thus it came to pass, according to the government‟s witnesses,10 that early
in the morning on May 17, 2000, Payne and Smith drove Arrington, Hagans,
Allen, and Leaks to Fourteenth Street to retaliate against the Mahdis. Payne drove
Arrington and Hagans in the gray Accord, and Smith followed them with Allen
and Leaks in the second car. The six men were heavily armed, with handguns,
assault rifles, and a shotgun. After arriving on Fourteenth Street, the cars stopped
9
The cars‟ owners testified they had parked them on the street between 7:00
and 8:00 that evening. When the police found the abandoned vehicles several
hours later, their ignitions had been pulled out, which was the method Smith
testified he had used to steal them.
10
The primary testimony at trial about appellants‟ actions was provided by
Payne and Smith (who each had pleaded guilty to second-degree murder for their
involvement), and by Gardner, who did not accompany appellants but saw them
just before they drove off to Fourteenth Street and again when they returned from
the shootings there.
12
at the house where they had seen Nadir Mahdi on the porch earlier in the day.
Appellants proceeded to fire in its direction; Payne testified that the shooting lasted
“a couple of minutes,” during which he saw some movement in the area at which
they were firing. The shooting caused widespread damage to the targeted house
and nearby cars and buildings.11
Eva Hernandez, a woman who lived with her family next door to the
targeted house, at 3922 Fourteenth Street, had just returned home from the
laundromat with her two sons and was unloading her car when the shooting started.
She was shot in the neck and died on the front steps of her house. According to
subsequent analysis, the bullet and bullet fragments recovered from her body were
fired by one of the assault rifles, a Mac-90. Gloria Flores-Bonilla, who lived a
couple of doors down at 3928 Fourteenth Street, was sitting in her bed when she
was grazed in the back by a .45-caliber bullet that came through her window.
11
At the start of the shooting, Smith was grazed on the head, apparently by
broken glass or shrapnel. He got out of the car and started running, firing his gun
as he did so until the weapon jammed. He left the area and eventually made his
way back to his own neighborhood on foot. In Smith‟s absence, Leaks took over
the wheel of the burgundy Accord.
13
In a few minutes, the shooting stopped and appellants drove back to the alley
behind Gardner‟s building, where they dropped off Arrington and Hagans.12 Allen,
Leaks, and Payne took the stolen Accords and left them in an alley next to Rock
Creek Cemetery. They then walked back to Gardner‟s building. Shortly after they
rejoined Arrington and Hagans there, Smith reappeared; displaying his bloody
head wound, he explained why he had run away on Fourteenth Street. 13 At
Arrington‟s direction, Allen, Leaks, and Payne returned to the stolen Accords to
wipe them down and to dispose of expended shell casings remaining in the cars by
throwing them into the cemetery.
12
On the way, Leaks inadvertently crashed the burgundy Accord into the
back of the gray Accord when Payne stopped the car because Arrington wanted to
shoot someone getting out of a parked truck. Both automobiles were damaged in
the collision.
13
Before the six men dispersed, they met with Gardner and told him what
they had done on Fourteenth Street (though at this juncture they did not yet know
whether they had shot anyone). Gardner recounted their incriminating admissions
at trial. Some of the participants in the raid on Fourteenth Street subsequently
admitted their involvement to others who also were to become prosecution
witnesses: Arrington spoke about it with Evans and Antonio Hardie (who bought
marijuana from him); Leaks and Allen admitted their complicity to McCoy; and
Payne told what happened to Evans and his future wife, Tamika Payne (both of
whom recounted his statements at trial; they were admitted as prior consistent
statements to rebut charges of fabrication motivated by his subsequent cooperation
with the prosecution).
14
Just a few hours later that same morning (before 8 a.m.), the police found the
Accords by the cemetery where they had been abandoned. From the rear door of
the gray Honda, they obtained Hagans‟s fingerprint. The police also recovered
shell casings from the vehicles and, eventually, from the cemetery.
F. The Shooting of Arrington on May 26, 2000
The warfare between the Delafield and Mahdi gangs continued after May
17, 2000. Of relevance for present purposes, on the afternoon of May 26, 2000,
Abdur and Nadir Mahdi ambushed Arrington as he was working on his car parked
on Sheridan Street. Arrington sustained a gunshot wound in the left side of his
chest.14 He later told Evans, McCoy, and Hardie that he had managed to fire back
at his assailants, one of whom he identified as a Mahdi.
G. The Roxboro Place Shooting on June 3, 2000
Over Arrington‟s objections, the trial court permitted the government to
present evidence of a shooting on June 3, 2000, in an alley off of Roxboro Place,
14
Abdur Mahdi admitted the shooting to members of his gang who testified
at appellants‟ trial. Nadir Mahdi admitted his involvement in his guilty plea
proffer.
15
Northwest, even though it was not part of the Delafield gang‟s feud with the Mahdi
organization and no charges arising out of this incident were included in the
indictments in this case. The evidence was admitted solely for its relevance in
establishing Arrington‟s possession of two firearms that had been used (according
to ballistics evidence and expert testimony) in the Hernandez, Webb, and other
Mahdi-related shootings for which Arrington was on trial—a Ruger handgun and a
Mac-90 assault rifle.15 Given this limited purpose, and to avoid undue prejudice to
Arrington, the jury was not told that two persons were killed in the June 3
shooting. The government introduced its evidence concerning the incident through
multiple witnesses, the most important being Delafield cooperators Evans and
Smith. Evans had pleaded guilty to one count of assault with intent to kill while
armed for his own participation in the Roxboro Place shooting.
As Evans testified, he was selling marijuana on Delafield Place shortly
before noon on June 3, 2000, when Arrington drove up in a Cadillac that Smith had
stolen the previous evening.16 Arrington asked Evans to come with him to help
15
The trial court also permitted the government to introduce evidence of
another shooting unrelated to the Delafield-Mahdi feud for the same evidentiary
purpose. As no issue is raised on appeal about this ruling, we refrain from
summarizing the evidence of this other shooting incident.
16
Smith testified to having stolen the car.
16
him jumpstart Arrington‟s own car, an RX-7. Evans got in the Cadillac and saw
three guns in the vehicle: a nine millimeter Ruger, a black .45 caliber pistol, and a
Mac-90.
When Arrington and Evans arrived at Arrington‟s car, they saw a burgundy
Mazda drive up the street and turn into an alley immediately in front of them.
Arrington told Evans that this Mazda had been following him all morning and that
he wanted to find out why. The pair proceeded to follow the Mazda. They saw it
stop at the end of the alley, behind Roxboro Place, and watched a pedestrian walk
up to it and transact some business—apparently a drug buy—at its window.
According to Evans, Arrington then exited the Cadillac with his Ruger and
immediately started shooting at the Mazda. Evans followed suit, firing the .45
caliber handgun he found in the Cadillac at an occupant of the Mazda who fled on
foot. Arrington returned to the Cadillac, retrieved the Mac-90, and continued
shooting with it. When Arrington finally stopped shooting, he and Evans ran back
17
to the Cadillac and drove to the vicinity of Delafield Place, where Arrington
dropped Evans off.17
In the alley where the shooting occurred, police found and collected what a
mobile crime scene officer described as “a tremendous amount of firearm
evidence.” A firearms examiner who had analyzed this evidence, comparing it to
the ballistics evidence recovered by police from the Mahdi-related shootings,
testified that it included (1) nine shell casings expelled by the same Ruger used in
the shootings of Webb, Tabron, Vance, and Arrington; (2) twenty-five shell
casings and four bullets or bullet fragments from the Mac-90 used in the shooting
of Hernandez and in the shooting on 14th and Monroe Streets on May 14 or 15;
and (3) one .45-caliber shell casing expelled from the same gun used in the Webb,
Nelson, Vance, and Flores-Bonilla shootings.
The day after the Roxboro Place shooting, the police found the stolen
Cadillac parked near Rock Creek Cemetery. Among the items of evidence found
17
Evans‟s account of the incident was corroborated at trial by several
witnesses on the scene. In addition, Payne, McCoy, and Hardie testified that
Arrington had told them of his involvement in the Roxboro Place shooting.
18
inside the vehicle were a burnt cigarette with Arrington‟s DNA on it, and a cassette
tape bearing Jason Smith‟s thumbprint.
II. Appellants’ Claims of Error
In seeking reversal of their convictions, some or all appellants challenge
several rulings respecting the government‟s evidence at their joint trial. The
rulings, in the order we shall discuss them, allowed the government to introduce
(1) the Mahdi brothers‟ guilty plea proffers, (2) extrajudicial statements of non-
testifying co-defendants, (3) evidence of Arrington‟s involvement in the uncharged
Roxboro Place shooting, and (4) contingently, Jason Smith‟s prior consistent grand
jury testimony. Appellants also contend the court erred (5) by allowing the
government in its closing arguments to make improper reference to Charles
Payne‟s grand jury testimony. Finally, appellants Allen and Leaks argue that (6)
the trial court abused its discretion in denying their motions for separate trials
because the evidence against them was minimal compared to the evidence against
their co-defendants; and that (7) the government did not present sufficient evidence
that either of them had a specific intent to kill in connection with the shootings of
Hernandez and Flores-Bonilla, the mens rea required to support their convictions
for first-degree murder and AWIKWA.
19
A. The Mahdi Plea Proffers
In 2001, the Mahdi brothers were indicted on multiple criminal charges
related to their gang‟s narcotics distribution conspiracy. Four of the five brothers
eventually pleaded guilty to the conspiracy in federal district court, and Nadir and
Rahammad Mahdi also pleaded guilty to having attempted to kill Arrington and his
associates.18 In tendering their guilty pleas, the Mahdi brothers agreed to factual
proffers prepared by the government. They did not agree to cooperate with the
government, however, and they asserted their Fifth Amendment privileges not to
testify at appellants‟ trial.
Over appellants‟ objections, the trial court allowed the government to
introduce redacted versions of the Mahdi brothers‟ plea proffers in evidence as
statements against penal interest.19 As presented to the jury in their redacted form,
the plea proffers described the Mahdi organization‟s drug-distribution operations
18
The fifth brother, Abdur Mahdi, was convicted after trial. See United
States v. Mahdi, 598 F.3d 883 (D.C. Cir. 2010).
19
The trial court redacted the proffers of Nadir and Rahammad Mahdi by
(1) replacing references to “Brion Arrington and his associates” with “Brion
Arrington and others” and (2) removing references to specific shootings allegedly
perpetrated by Arrington and his associates and substituting the phrase “acts of
violence against members of the Mahdi organization.”
20
and other criminal activities, including numerous acts of violence that its members
had committed against rival drug dealers unrelated to the Delafield organization.
In addition, Nadir and Rahammad Mahdi‟s redacted proffers stated that they and
other Mahdi gang members had conspired to kill “Arrington and others, because
they believed that Arrington and others were responsible for acts of violence
against members of the Mahdi organization.” Nadir Mahdi‟s proffer described
how (1) on May 16, 2000, he and other gang members were sitting out on a front
porch on Fourteenth Street when he saw and shot at a car containing Arrington and
others; and (2) on May 26, 2000, he and other members of the Mahdi gang shot
and wounded Arrington with the intent to kill him.
Before the proffers were read into the record, the trial court informed the
jury that the four Mahdi brothers had pleaded guilty in district court and had
admitted, under oath, the criminal activity described in the proffers. After the
proffers were read, the trial court explained to the jury that they were admitted only
to show what Nadir and Rahammed Mahdi believed and the background of the
alleged relationship between the Mahdi and Delafield gangs, and that the proffers
were not evidence that Arrington “or anyone else” (other than the Mahdis) “did
anything.”
21
Appellants objected to the admission of the plea proffers on Confrontation
Clause grounds. In light of the Supreme Court‟s subsequent decision in Crawford
v. Washington20 and this court‟s decisions thereafter in Morten v. United States21
and Williams v. United States,22 the government concedes, correctly, that the
admission of the plea proffers at appellants‟ trial violated their Sixth Amendment
right of confrontation and hence was an error of constitutional magnitude. As
such, and because the claim of error was preserved by timely and specific
objections, “reversal is required unless it is shown „beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.‟” 23 The burden
on the government to establish harmlessness beyond a reasonable doubt is a heavy
one, but it is not necessarily insurmountable. “„In some cases, the properly
admitted evidence of guilt is so overwhelming, and the prejudicial effect of the
20
541 U.S. 36, 53-54 (2004) (holding that the prosecution‟s introduction in
evidence of a testimonial statement from a witness who does not appear at trial
violates the Confrontation Clause of the Sixth Amendment unless the witness is
both unavailable to testify and the defendant had a prior opportunity for cross-
examination).
21
856 A.2d 595, 600 (D.C. 2004) (holding that appellants‟ right of
confrontation was violated by the admission of declarations against penal interest
made by non-testifying co-conspirators when they entered guilty pleas).
22
858 A.2d 978, 981 (D.C. 2004) (same).
23
Morten, 856 A.2d at 600 (quoting Chapman v. California, 386 U.S. 18,
24 (1967)).
22
[improperly admitted evidence] is so insignificant by comparison, that it is clear
beyond a reasonable doubt that the improper use of the [evidence] was harmless
error.”‟24 The factors that bear on whether a Confrontation Clause violation was
harmless include “the strength of the government‟s case, the degree to which the
statement was material to a critical issue, the extent to which the statement was
cumulative, and the degree to which the government emphasized the erroneously
admitted evidence in its presentation of the case.”25
In Morten and Williams, where we held that the Confrontation Clause
violation was not harmless beyond a reasonable doubt, the erroneously admitted
plea proffers were made by the appellants‟ co-conspirators, and they provided
substantial and direct proof of both the conspiracy and the substantive charges
against the appellants.26 In this case, neither of those things was so: The
24
Morten, 856 A.2d at 600-01 (quoting Schneble v. Florida, 405 U.S. 427,
429 (1972)).
25
United States v. Reifler, 446 F.3d 65, 87 (2d Cir. 2006); see also id. at 90
(concluding that the unconstitutional admission of co-conspirators‟ guilty plea
allocutions to establish two essential elements of a conspiracy charge was harmless
beyond a reasonable doubt, given, inter alia, “the brevity of the government‟s
mention of the plea allocutions, the purely cumulative character of the statements,
and the strength of the government‟s case”).
26
The appellants in Morten and Williams were charged with having
conspired, as members of the Stanton Terrace Crew, to kill members of a rival
(continued…)
23
improperly admitted extrajudicial statements were not those of appellants‟ co-
conspirators, but rather were made by members of the rival gang; and the
statements did not directly incriminate appellants or prove any of the charges
against them. Nonetheless, appellants claim, the Mahdi plea proffers were as
prejudicial as the extrajudicial statements in Morten and Williams, and for much
the same reasons.
First, appellants argue, the plea proffers tended to prove the existence of the
charged conspiracy by showing its “mirror-image,” or what the prosecutor called
in his rebuttal argument “the other side of the equation.” That the Mahdis
conspired to retaliate against “Arrington and others” for their acts of violence
implied, it is said, that “Arrington and others” had conspired to commit and
committed such acts (and, perhaps, that Arrington was one of the leaders of the
conspiracy). Moreover, appellants contend, Nadir Mahdi‟s admission that he shot
at “Arrington and others” on May 16, 2000, established a motive for appellants—
(continued…)
gang, the Parkland Crew, and with substantive crimes in furtherance of that
conspiracy. To prove both the conspiracy and the substantive offenses, the
government relied heavily on out-of-court declarations against penal interest by
two members of the Stanton Terrace Crew. These declarations were contained in
the transcripts of their plea colloquies when they pleaded guilty shortly before trial,
and in the videotape of a statement given by one of them to the police.
24
Arrington, in particular—to commit the shooting that night in which Eva
Hernandez was killed and Flores-Bonilla was wounded.27 Finally, appellants argue
that the description of the May 16 shooting in Nadir Mahdi‟s proffer served to
bolster the credibility of Charles Payne, a key prosecution witness.28
27
In his rebuttal argument, the prosecutor asked the jury, “[W]hat happened
on May 16, seven hours before Eva Hernandez [was killed]. Nadir Mahdi came
off the porch? Is that true? On this evidence it is unquestionably true. We got a
guilty plea from the man who did it for goodness sake.” It must be noted that the
prosecutor proceeded immediately to remind the jury that Nadir Mahdi‟s guilty
plea was not the only evidence of this: “You have heard from numerous witnesses,
you heard from live witnesses who told you that Nadir Mahdi did that.”
28
As the prosecutor told the jury, “[i]f you believe Charles Payne—forget
about all the other evidence, if you believe Charles Payne alone, you have
sufficient evidence beyond a reasonable doubt to convict these four defendants of
what happened to Eva Hernandez.” The prosecutor cited the consistency of
Payne‟s testimony with the facts recounted in Nadir Mahdi‟s plea proffer as one
reason to find Payne credible. In his initial closing argument, for instance, the
prosecutor stated:
Nadir M. Mahdi pled guilty to [the May 16 shooting] in
federal court the date, February 21st, 2003. Less than a
year ago. Charles Payne came to the grand jury in
September [of] the year 2000. So when Charles Payne
sits on the witness stand and tells you I drove through
that block with Brion Arrington and others, you saw his
testimony, that‟s what we would ask you to consider first.
But remember Nadir Mahdi pled guilty to doing just that.
Just like Charles Payne tells you. Something Charles
Payne could have absolutely no way of knowing.
25
In response, the government contends that the improper admission of the
plea proffers did not prejudice appellants because: (1) the proffers themselves
were “entirely cumulative of other evidence presented by multiple, live witnesses
at trial;” (2) the issues the proffers addressed were “peripheral; none of them
provided any direct proof at all of appellants‟ guilt of the charged conspiracy or
substantive offenses;” and (3) “although the government made use of the proffers
in its closing and rebuttal arguments, they were hardly the central focus of the
government‟s case, which presented overwhelming evidence of appellants‟ guilt
through the consistent testimony of numerous independent witnesses, corroborated
by extensive firearms and other forensic evidence.”29
Considering the record of appellants‟ ten-week trial in its entirety, we
conclude that the government has carried its burden of establishing that the
erroneous admission of the Mahdi plea proffers was harmless beyond a reasonable
doubt. For the following reasons, we are satisfied that the proffers did not
prejudice appellants.
29
Brief of Appellee at 76.
26
To begin with, the government is correct in emphasizing that, unlike the
testimonial hearsay of the defendants‟ coconspirators in Morten and Williams, the
Mahdi plea proffers were not directly probative of any of the crimes charged in this
case. The proffers did not assert the existence of the Delafield criminal
organization or appellants‟ involvement in a conspiracy of any kind; nor did they
mention any of the shootings with which appellants were charged. Although the
proffers stated that Nadir and Rahammad Mahdi “believed” Arrington and others
were responsible for (unspecified) acts of violence against the Mahdi organization,
the proffers set forth no basis for that belief and were not offered or relied upon as
evidence of its truth. To the contrary, the trial court instructed the jury that the
proffers were “not any evidence” that Arrington or his co-defendants “did
anything.” Thus, even if the proffers‟ description of a Mahdi conspiracy against
“Arrington and others” implied the existence of a “mirror image” conspiracy by
Arrington and others against the Mahdi organization, the jury was inoculated
against drawing that implication.
The government is also correct in stating that it relied on abundant
admissible and probative evidence wholly apart from the plea proffers to prove the
existence of the Mahdi and Delafield gangs, the feud between them, appellants‟
conspiracy, and appellants‟ commission of each of the shootings charged in their
27
indictments—evidence that included the live eyewitness testimony of a slew of
witnesses associated with each of the two gangs. For the most part, the Mahdi plea
proffers added nothing of consequence to this evidence; they were cumulative at
best.
Citing Morten, appellants argue that the Mahdi plea proffers were
qualitatively superior to the cooperating witnesses‟ in-court testimony because, in
contrast to that testimony, the proffers were read to the jury without disclosure of
“the advantages [the Mahdi defendants] secured by pleading guilty and
incriminating” Arrington and others.30 But even setting aside the fact that the
Mahdi brothers did not incriminate appellants (and thus their proffers were
decidedly inferior, from the prosecution‟s perspective, to the cooperating
witnesses‟ in-court testimony), this case is not comparable to Morten. Here, unlike
in Morten, the jury was informed that the proffers were statements adopted as part
of guilty pleas.31 Thus, appellants were in a position to argue, and the jury was in a
position to understand, the possible motivations of the Mahdi brothers, including
30
Morten, 856 A.2d at 601.
31
In Morten, the jury was told only that the transcribed statements had been
made in an “official proceeding” of an unspecified kind. Id. It was not disclosed
that the statements were made pursuant to plea agreements.
28
the incentive to curry favor with the government to gain a more lenient sentence.32
Moreover, as the government points out, appellants were free to impeach the
Mahdi brothers with their plea agreements or in any other permissible way, even
though they did not testify.33
What we must focus on is Nadir Mahdi‟s proffer and the support it alone of
the four proffers provided to the government‟s proof of appellants‟ commission of
the shooting on May 17, 2000, in which Eva Hernandez was killed and Gloria
Flores-Bonilla was wounded. Nadir Mahdi‟s proffer did not add to the mass of
incriminating evidence directly; it did not say anything at all about the May 17
shootings. But what the proffer did do was describe the incident that, according to
Payne, precipitated the attack on Fourteenth Street. Nadir Mahdi‟s admission to
having shot at Arrington and his associates on the afternoon of May 16
corroborated Payne‟s testimony on this point and helped establish a motive for
appellants to retaliate.
32
Making that very point, Hagans‟s counsel asserted in closing argument
that plea proffers were “not worth the paper they‟re printed on because the
government makes the proffer, they put down what they want, you either sign it or
you don‟t.”
33
See Watkins v. United States, 846 A.2d 293, 298 (D.C. 2004) (citing
Federal Rule of Evidence 806, which permits the impeachment of a non-testifying
declarant whose hearsay statement has been admitted in evidence).
29
We are not persuaded, however, of the importance of this contribution by
Nadir Mahdi to the evidence against appellants. As summarized above, appellants‟
involvement in the May 17, 2000, raid was established at trial by multiple
witnesses in addition to Payne, including: (1) Smith, who, like Payne, admitted to
having participated in the raid himself; (2) Gardner, who witnessed appellants‟
activities immediately before the raid, and talked with them about it immediately
afterward; (3) Evans and Hardie, to whom Arrington admitted his involvement;
and (4) McCoy, to whom Leaks and Allen did likewise. In addition, the
government presented the evidence that Hagans‟s fingerprint was found on the
door of one of the stolen Accords and corroborative ballistics evidence.
There likewise was substantial corroboration at trial, apart from Nadir
Mahdi‟s plea proffer, of Payne‟s testimony about the May 16, 2000, incident in
which Nadir shot at Arrington. As previously mentioned, two of Nadir Mahdi‟s
own associates (James Hamilton and David Tabron) confirmed that he committed
the May 16 shooting, and Kevin Evans and Tamika Payne testified to Payne‟s prior
consistent statements about the incident (given before he had any reason to
fabricate).34 While Payne, testifying pursuant to a cooperation plea agreement and
34
Based on a physical description given by a neighbor, Hagans argued that
the shooter was Joseph Hooker, not Nadir Mahdi. The government argued that the
(continued…)
30
facing the prospect of a potentially lengthy sentence for the crimes to which he had
pleaded guilty, was hardly a disinterested witness, his detailed testimony was not
materially undermined or contradicted despite appellants‟ strenuous efforts to
discredit him.35
Appellants argue that the critical importance of the Mahdi plea proffers to
the government‟s case against them, and thus the likelihood of prejudice from their
admission in evidence, is shown by the prosecutors‟ reliance on the proffers in
(continued…)
description was unreliable, but in any case, because Hooker was a Mahdi gang
member himself, it was scarcely material whether he instead of Nadir Mahdi was
the shooter, and the attempt to undercut Payne on this point did not affect his
credibility significantly. Payne‟s account of the May 16 shooting, and in particular
his testimony as to who was present with him in the car, was otherwise
uncontradicted.
35
It appears that Payne made a compelling witness, one credibly motivated
not only by his admitted hope of some leniency at his sentencing, but also by
sincere remorse and a genuine desire to accept responsibility. He haltingly
described, for instance, how he tried not to watch as Arrington, Hagans, and Evans
repeatedly shot his friend, Danny Webb, over his protestations. His testimony,
which extended over hundreds of pages of transcript, was remarkably consistent,
both internally and with the other testimonial and physical evidence presented at
trial. When the prosecutor asked the jury in closing argument and rebuttal to
believe Payne, he emphasized “first and primarily his testimony day after day in
this courtroom, with four lawyers questioning him[,] [d]irect, non-evasive,
straightforward.”
31
their closing and rebuttal arguments.36 We do not agree. We recognize that “[a]
prosecutor‟s stress upon the centrality of particular evidence in closing argument
tells a good deal about whether the admission of the evidence was meant to be, and
was, prejudicial.”37 In this case, however, and unlike in Morten, the erroneously
admitted plea proffers were far from central or critical to the case that the
government laid out. In several hours of argument, spanning some 240 pages of
transcript, we count only seven instances in which the prosecutors mentioned the
proffers, two in the initial closing argument and five in the rebuttal. Far from
being the centerpiece, fulcrum, linchpin or the like, the proffers were essentially
cumulative and peripheral. The prosecutors cited them as just one helpful but by
no means essential piece of evidence that supported the government‟s case.
So, to take appellants‟ chief example, the prosecutors did cite Nadir Mahdi‟s
plea proffer as evidence that corroborated Payne‟s testimony about the May 16
shooting. But it was not the only such corroboration, the prosecutor emphasized,
nor did it outshine all the rest. The prosecutors also cited the testimony of
Hamilton and other witnesses to the incident, and that of Tamika Payne, to whom
36
The United States was represented at trial by two prosecutors; one made
the government‟s initial closing argument and the other gave the rebuttal.
37
Morten, 856 A.2d at 602 (internal quotation marks and brackets omitted).
32
Payne had described what happened; and ballistic and other physical evidence
supporting Payne‟s account that Nadir Mahdi left the porch and shot at Arrington
and the others in the car Payne was driving. Nadir Mahdi‟s plea proffer did not
become key evidence against appellants merely because the prosecutors invoked it
as one of many pieces of evidence corroborating Payne‟s testimony.38
In sum, we conclude that the government has overcome the high bar set by
the Chapman standard of harmlessness for constitutional error.39 We are
38
The prosecutors also mentioned Nadir Mahdi‟s plea proffer when they
discussed the May 26 gunfight between Arrington and Mahdi gang members. But
that event was important primarily because it generated ballistics evidence (a shell
casing from Arrington‟s 9-millimeter Ruger handgun) linking Arrington to other
shootings; Nadir Mahdi‟s admission to having shot Arrington in the incident was
only marginally significant in this connection, and it was cumulative evidence of
the shooting at most. The plea proffer was not part of the evidence tying Arrington
to the Ruger.
Finally, at the tail end of the rebuttal argument, the prosecutor made brief
references to the plea proffers as supporting the government‟s contentions that the
Mahdi Brothers criminal enterprise existed and that the Mahdis were “at war” with
the Delafield organization. But, as we have said, these facts were proved virtually
beyond peradventure by other evidence at trial, including the well-corroborated
testimony of several cooperating witnesses from both gangs.
39
See Chapman v. California, 386 U.S. 18, 24 (1967).
33
persuaded that there is no reasonable possibility the improper use at trial of the
Mahdi guilty plea proffers contributed to appellants‟ convictions.40
B. Extra-Judicial Statements of Co-Defendants
Appellants present two distinct but related claims of error in the admission
of the testimony concerning their out-of-court admissions. One of the claims
concerns whether this evidence should have been excluded because the jury was
instructed on vicarious liability. The other claim focuses on whether one witness‟s
testimony, recounting admissions made by appellant Leaks, was sufficiently
redacted to avoid prejudice to the other appellants.
Although we address these two claims separately, they are related in that
each claim invokes the same underlying evidentiary limitation, in multiple
defendant trials, on the permissible use of statements made by one defendant that
come within the party opponent exception to the rule against hearsay. (Because
the statements at issue in this case were non-testimonial, we focus solely on the
rule against hearsay and not on the Confrontation Clause.) When such a statement
is not independently admissible against the non-declarant co-defendants, care must
40
See Morten, 856 A.2d at 601.
34
be taken to ensure that it is considered as evidence only against its maker and not
against the other defendants in violation of the general prohibition against the use
of hearsay. As we explain below, in cases where defendants may be convicted on
a theory of vicarious liability, admitting party opponent statements might make it
possible for all defendants to be convicted based on statements that are hearsay as
to all but one of them, an unacceptable outcome that we rejected in Akins v. United
States.41 This concern is not alleviated by an effective redaction of the statement
because the statement need only implicate one defendant to create the problem
recognized in Akins. Further, aside from the issue of vicarious liability, admitting
a confession of one defendant, as the statement of a party opponent, may conflict
with the rule against hearsay to the extent the confession implicates other
defendants. Even when the confession is introduced with an appropriate limiting
instruction, it may have to be redacted efficaciously to prevent the jury from using
it improperly against the non-declarant co-defendants.
41
679 A.2d 1017, 1031 (D.C. 1996).
35
1. The Vicarious Liability Problem
Appellants contend that because the jury was given a Pinkerton instruction
on the vicarious liability of all co-conspirators for substantive crimes committed by
any of them in furtherance of the conspiracy,42 the trial court erred in admitting
certain of their out-of-court statements under the hearsay exception for statements
of party opponents,43 even with redactions and limiting instructions.44 Admission
of the extrajudicial statements, appellants argue, violated this court‟s holding in
Akins v. United States that “in a joint conspiracy trial where the government relies
on a theory of vicarious liability, statements may not be introduced under the
statements of party opponent exception to the rule against hearsay—or any other
42
See Pinkerton v. United States, 328 U.S. 640 (1946); see also Gordan v.
United States, 783 A.2d 575, 582 (D.C. 2001).
43
See Chaabi v. United States, 544 A.2d 1247, 1248 n.1 (D.C. 1988).
44
Specifically, appellants cite (1) Leaks‟s admission to McCoy that “[he]
and five others” were involved in the May 17 shooting; (2) incriminating
statements made by Arrington to Payne, Gardner, and Evans, and by Arrington and
Hagans to Smith, regarding the May 17 shooting; (3) testimony of McCoy that
Arrington asked him to “handle” Payne‟s “snitching” in order to prevent Payne
from testifying; (4) Gardner‟s testimony that, shortly after the shooting on May 17,
he heard an unidentified conspirator say the group “rode through, seen [sic]
someone standing on the porch, started firing and left;” and (5) Arrington‟s
statements, recounted by Hardie, that he did not notice when someone approached
him with a gun on May 26 because he was working on his car, and that he was
“lucky he had his own gun on him” so he could shoot back.
36
hearsay exception that is not reliability-based—unless they are admissible as
coconspirators‟ statements in furtherance of the conspiracy.”45
The reason for this rule is that a vicarious liability instruction may undercut
the condition under which a properly redacted party opponent statement may be
admitted in a joint trial—namely, the condition, on which the jury must be
instructed, that the statement is to be considered as evidence only against its maker
and not against the other defendants.46 The problem arises when the prosecution
proves that the defendants in a joint trial were engaged in a conspiracy and relies
on a party opponent statement to prove that the defendant who made it committed
a substantive crime in furtherance of the conspiracy. If the jury accepts that proof
and finds the declarant defendant guilty of the substantive crime, vicarious liability
renders the other defendants guilty of it as well on the same evidence, including the
45
Akins v. United States, 679 A.2d 1017, 1031 (D.C. 1996).
46
Under traditional rules of hearsay, a defendant‟s extrajudicial statement,
offered solely as the admission of a party opponent and not under any other
hearsay exception, is inadmissible against a co-defendant. (Keith) Thomas v.
United States, 978 A.2d 1211, 1222 (D.C. 2009). Moreover, if the statement is
testimonial in nature and the declarant defendant does not testify at trial, the
statement is also inadmissible against a co-defendant under the Confrontation
Clause of the Sixth Amendment. Id. at 1222-23. As we discuss further below,
even with an appropriate limiting instruction, redaction of the statement may be
necessary to remove incriminating references to co-defendants at a joint trial. Id.
at 1223-24.
37
hearsay evidence that could not be considered against them, even if they were not
personally involved in the crime themselves. In this way, the vicarious liability
instruction may contradict and vitiate the limiting instruction under which the
hearsay was admitted.47
Akins framed its rule against the admission of party opponent hearsay in
joint conspiracy trials not merely as an application of traditional rules of evidence,
but specifically to protect the Confrontation Clause rights of the non-declarant
defendants as those rights were understood in the era before the Supreme Court
decided Crawford v. Washington.48 While the Akins rule as stated is no longer a
47
See Akins, 679 A.2d at 1031 (declaring that “no limiting instruction can
cure” the problem); but see id. at 1037 (“We need not decide whether any limiting
instruction, combined with the Pinkerton charge, would set too contradictory a
mental task before the jury.”) (Farrell, J., concurring); id. at 1037-39 (Schwelb, J.,
concurring in part and dissenting in part); Erskines v. United States, 696 A.2d
1077, 1080 n.4 (D.C. 1997) (explaining that, in view of the separate opinions of
Judges Farrell and Schwelb, the decision in Akins “left open the question whether a
more pointed limiting instruction than the one given in Akins” could avoid the
problem in a case in which a vicarious liability instruction is given).
48
541 U.S. 36 (2004). See Akins, 679 A.2d at 1030 (citing Ohio v. Roberts,
448 U.S. 56, 66 (1980), for the proposition, later overruled in Crawford, that the
Confrontation Clause is not violated by the admission of incriminating
extrajudicial statements under “a recognized hearsay exception based on the
statements‟ presumed reliability”).
38
good fit with Confrontation Clause principles,49 it retains its logic and validity
under non-constitutional rules of evidence.50 Hence we consider Akins applicable
even where no Confrontation Clause issue is presented because, as in the present
case, the hearsay at issue—appellant‟s statements to fellow gang members and
associates—was not testimonial in nature.51
However, although appellants objected on other grounds to the introduction
of their out-of-court statements, an objection under Akins was never made at trial.
We do not mean to suggest that appellants needed to cite Akins by name to
preserve their objection for appellate review; but “appellants‟ failure to either cite
to Akins or object that the combination of the admission of [their co-defendants‟]
redacted statements and the Pinkerton instruction would violate their . . . rights
49
This is primarily because, per Crawford, the Confrontation Clause applies
to testimonial hearsay regardless of whether it falls within an exception (reliability-
based or otherwise) to the rule against hearsay, but not at all to non-testimonial
hearsay. See Davis v. Washington, 547 U.S. 813, 821 (2006).
50
See (Keith) Thomas, 978 A.2d at 1225 (“Whether or not it is testimonial,
a defendant‟s extrajudicial statement directly implicating a co-defendant is equally
susceptible to improper use by the jury against that co-defendant.”).
51
See id. at 1226-27; see also Perez v. United States, 968 A.2d 39, 77 n.43
(D.C. 2009) (“Because the statement was made not to police, but to a perceived
ally who was not then a government informant or witness, it was not testimonial
and there was no right to cross-examination under the Confrontation Clause.”).
39
meant that the trial court was not fairly apprised that appellants sought relief based
on that claim.”52 Accordingly, we review appellants‟ claim of an Akins violation
only for plain error.53
Under the established four-part test for plain error, an
appellant must demonstrate not merely that there was an
error, but also that the error was “clear” or “obvious”—
“so egregious and obvious as to make the trial judge and
prosecutor derelict in permitting it, despite the
defendant‟s failure to object.” In addition, the appellant
must demonstrate that the error affected his substantial
rights by showing a reasonable probability that it had a
prejudicial effect on the outcome of his trial. Lastly,
even if the appellant succeeds in those demonstrations, he
also must show that the error seriously affected the
fairness, integrity or public reputation of the judicial
proceeding.54
Importantly, “it is inherent in the nature of plain error review that appellant must
make that showing based on the record on appeal.”55
52
Baker v. United States, 867 A.2d 988, 1001-02 (D.C. 2005) (internal
quotation marks omitted).
53
Id. at 1002.
54
Comford v. United States, 947 A.2d 1181, 1189-90 (D.C. 2008) (footnotes
omitted).
55
Lowery v. United States, 3 A.3d 1169, 1173 (D.C. 2010).
40
We cannot find plain error on the record here. For one thing, the record does
not show clearly that the Akins rule was violated by the admission of the hearsay
statements at issue here. There is every reason to suppose that at least some of
those statements would have been “alternatively admissible” under a reliability-
based hearsay exception (as contemplated by the Akins rule)—namely the
exception for statements against penal interest.56 Some of the statements also may
have been admissible under the exception for statements by co-conspirators during
the course of and in furtherance of the conspiracy (as also contemplated by
Akins).57 And one of the statements in issue, Arrington‟s alleged request that
56
Akins, 679 A.2d at 1033. As we explained in (Keith) Thomas, 978 A.2d
at 1227:
The exception, a species of “statement against interest,”
provides that if the declarant is unavailable as a witness,
the rule against hearsay does not exclude “a statement
which at the time of its making so far tended to subject
the declarant to criminal liability that a reasonable person
in the declarant‟s position would not have made the
statement unless believing it to be true.” The premise of
this exception is that reasonable people usually do not
make statements against their penal interest unless the
statements are true; the statements are reliable, and
therefore admissible, precisely insofar as they genuinely
increase the declarant‟s exposure to criminal sanction.
(Footnotes omitted.)
41
McCoy prevent Payne from testifying, does not appear to have been hearsay at
all.58
In any event, in order to establish that the asserted error affected their
substantial rights (the third requirement of plain error), appellants must show a
reasonable probability that, but for the admission of their extrajudicial statements
under the party opponent exception, the outcome of the trial would have been
different.59 They cannot make such a showing here. The statements were
cumulative of other direct, compelling evidence of each appellant‟s personal
involvement in the substantive crimes with which he was charged; we are
confident that no appellant was found guilty of any offense in which he did not
(continued…)
57
See Butler v. United States, 481 A.2d 431, 439-41 (D.C. 1984); United
States v. Carson, 455 F.3d 336, 367 (D.C. Cir. 2006) (recognizing that statements
recounting past violent acts to fellow conspirators may fall within the exception for
co-conspirator hearsay where they keep the co-conspirators informed or
motivated).
58
See Jenkins v. United States, 80 A.3d 978, 993 (D.C. 2013) (explaining
that statements between conspirators not offered for the truth of the matter asserted
are non-hearsay verbal acts).
59
See (Michael) Thomas, 914 A.2d 1, 21 (D.C. 2006).
42
participate based on a theory of vicarious liability for the acts of another.60 For this
reason too, appellants‟ claim that the admission of their co-appellants‟ extrajudicial
statements was plain error falls short.
2. The Redaction Issue
Appellants‟ second party opponent hearsay claim is specific to cooperating
witness Marquet McCoy‟s testimony recounting admissions by appellant Leaks.
Before calling McCoy to the witness stand, the government informed the trial court
and defense counsel that Leaks had told McCoy “chapter and verse” about the May
17 shootings, among other things “naming all five of his accomplices,” but that
“for Bruton reasons” the government had instructed McCoy to limit his testimony
about Leaks‟s admissions so as to implicate only “Leaks and [unnamed] others.”
On the stand, McCoy testified that a few days after the May 17 raid, Leaks
gave him a detailed account of it and admitted having been “present and involved”
himself. The prosecutor asked McCoy whether Leaks had said who went with him
on the raid; McCoy confirmed what he had indicated earlier in his testimony, that
60
Cf. Baker, 867 A.2d at 1003 (finding insufficient prejudice for reversal
under plain error review where the co-defendant‟s statement was “both vague and
cumulative of much weightier evidence”).
43
Leaks had indeed named his confederates. The prosecutor then inquired how many
there were. “It was him [i.e., Leaks] and five others,” McCoy responded. Defense
counsel objected and moved to strike the witness‟s answer as being violative of the
Bruton doctrine because it plainly referred to Leaks‟s co-defendants. The trial
court declined to strike the testimony but repeated its earlier instruction to the jury
that a statement by a defendant could only be used against that defendant. McCoy
then went on to testify to what Leaks told him about how the May 17 shootings
had occurred.
On appeal, Allen argues that Leaks‟s statement to McCoy incriminated him
by unavoidable inference even though it was redacted so as not to identify him by
name—for it would have been obvious to the jury that the “five others” whom
Leaks mentioned could only have been Leaks‟s three co-defendants (Arrington,
Hagans, and Allen) and the government‟s two cooperating witnesses (Payne and
Smith). We understand Arrington and Hagans to join in this contention.
Accordingly, Allen asserts (on their behalf as well as his own) that because the
hearsay statement was inadmissible against Leaks‟s co-defendants,61 the trial court
61
Despite the references in the trial court to Bruton v. United States, 391
U.S. 123 (1968), appellants properly do not complain of a Confrontation Clause
violation. Leaks‟s statement, made in casual conversation to a fellow gang
member, was not testimonial. See note 51, supra. The government does not
(continued…)
44
erred in admitting it without severing their trials from that of Leaks pursuant to
Criminal Rule 14.62
Appellants‟ argument is not without merit. Rule 14 “requires that the trial
court take appropriate steps to minimize the prejudice inherent in codefendant
confessions which are inadmissible against the nondeclarant defendant.”63 “[T]he
remedial options under Rule 14 when one defendant‟s extrajudicial statement
directly inculpates a co-defendant are the same as under the Confrontation Clause:
unless the government agrees to forego any use of the statement, it must be
redacted to eliminate all incriminating references to the co-defendant, or the co-
(continued…)
suggest, however, nor do we think, that appellants failed to preserve their non-
constitutional claim predicated on the inadmissibility of Leaks‟s statement against
them under traditional hearsay principles.
62
Super. Ct. Crim. R. 14 (providing, in pertinent part, that “[i]f it appears
that a defendant . . . is prejudiced by a joinder of defendants . . . for trial together,
the Court may . . . grant a severance of defendants or provide whatever other relief
justice requires”).
63
(Keith) Thomas, 978 A.2d at 1223 (quoting Carpenter v. United States,
430 A.2d 496, 502 (D.C. 1981) (en banc)). It is not suggested that the portions of
Leaks‟s statement implicating persons other than himself in the May 17 shooting
could have been admitted against Leaks‟s co-defendants under the hearsay
exception for statements against penal interest. See Williamson v. United States,
512 U.S. 594, 599-601 (1994); (Keith) Thomas, 978 A.2d at 1228-29.
45
defendant‟s motion for severance must be granted.”64 Without adequate redaction,
a limiting instruction cautioning the jury to consider the statement only against its
maker “is not a sufficient prophylaxis.”65
Here, of course, the statement was redacted; instead of identifying those
whom Leaks had named as his confederates, McCoy referred to them only in
neutral terms as “five others.” Thus, as it was summarized to the jury, the
statement did not directly incriminate Leaks‟s co-defendants on its face. This is
important, because
a defendant‟s extrajudicial statement normally may be
admitted in evidence in a joint trial (with an appropriate
limiting instruction, we emphasize) so long as the
statement, as redacted if necessary, does not incriminate
a non-declarant co-defendant on its face, either explicitly
or by direct and obvious implication. A statement
satisfying that condition normally is admissible (with the
limiting instruction) even though it alludes non-
specifically to the declarant‟s confederates and the non-
declarant co-defendant may be linked to it by other,
properly admitted evidence of his guilt.66
64
Id. at 1224 (internal quotation marks omitted).
65
Id.
66
Id. at 1235.
46
But, as we have emphasized, these principles “are guidelines for the mine run of
cases, not ironclad rules for every case no matter what the circumstances.” 67 There
is a particular circumstance in this case that takes it out of “the mine run”—
namely, the fact that the jury was informed that Leaks in fact had identified his
confederates in the statement that McCoy reported. In other words, it was revealed
to the jury that the statement had been redacted to omit the identities of the other
participants in the May 17 shooting.
When a defendant‟s extrajudicial statement is redacted by replacing the co-
defendants‟ names with neutral pronouns or other generic terms (such as “others”),
the substitution must be accomplished artfully, so as not
to indicate to the jury that the statement originally
contained actual names. An obvious redaction would
imply too strongly that the statement implicated the non-
declarant co-defendant by name.68
67
Id.
68
Id. at 1237; see, e.g., Gray v. Maryland, 523 U.S. 185, 193 (1998)
(explaining that when the jury is aware that names have been deleted, the
substituted language “will not likely fool anyone;” the jurors “would know
immediately” whose names had been removed); United States v. Jass, 569 F.3d 47,
56 (2d Cir. 2009) (“[A] redacted statement in which the names of co-defendants
are replaced by neutral pronouns, with no indication to the jury that the original
statement contained actual names, and where the statement standing alone does
not otherwise connect co-defendants to the crimes, may be admitted without
(continued…)
47
Transparently redacted statements “continue to incriminate the non-declarant
defendant „directly‟ and „facially,‟” to the extent that a limiting instruction alone
usually cannot be deemed an effective remedy.69
We therefore cannot approve the redaction of Leaks‟s statement. The
admission in this joint trial of McCoy‟s testimony summarizing what Leaks told
him was error. That does not mean, however, that any of Leaks‟s three co-
appellants are entitled to a new trial. We are persuaded by the government‟s
alternative argument that, in light of the mass of other evidence of their
involvement in the May 17 shootings, which we have summarized above, the error
did not have a substantial impact on the jury‟s verdict and thus was harmless.70
C. The Evidence of the Roxboro Place Shooting
In deciding whether to admit evidence of the uncharged Roxboro Place
shooting, the trial court had to evaluate and balance the government‟s assertions of
(continued…)
violating a co-defendant‟s Bruton rights.”) (internal quotation marks omitted;
emphasis added).
69
(Keith) Thomas, 978 A.2d at 1234 (quoting Gray, 523 U.S. at 196).
70
See Kotteakos v. United States, 328 U.S. 750, 765 (1946).
48
relevance against claims of prejudice raised by Arrington and Hagans. Ultimately,
the court ruled evidence of the Roxboro Place incident admissible only for the
limited purpose of showing Arrington‟s possession of firearms used to commit the
shootings charged in the indictment;71 and then only on condition that the jury not
be informed anyone was killed in the assault.72 The court overruled Arrington‟s
objections that the government‟s true and improper purpose in presenting the
Roxboro shooting evidence was to demonstrate his alleged propensity to commit
violent crimes with firearms, and that even with the court‟s restrictions, the
evidence was substantially more prejudicial than probative. The court also rejected
Hagans‟s motion that he be tried separately from Arrington so that, in cross-
examining Evans and other government witnesses, he would be permitted to elicit
the fact that the Roxboro shooting resulted in a double homicide. Arrington and
Hagans renew their contentions on appeal, and we address them in turn.
71
The court rejected the government‟s alternative rationales that Arrington‟s
involvement in the Roxboro shooting was otherwise probative of his identity as
one of the shooters in the Webb and Hernandez homicides, his motive to kill
members of the Mahdi gang, and his intent to kill Webb and the Mahdis.
72
This condition was adhered to at trial. The government did not elicit
from its witnesses that anyone was killed on Roxboro Place, and that fact was not
brought out on cross-examination either. Although the jury heard that one person
in the Mazda was shot and wounded (by Evans, it should be noted, not Arrington),
it further heard that this person was able to run from the scene and later spoke with
the police. The jury had no reason to infer that his wounds were fatal.
49
1. Admission of the Roxboro Place Shooting Evidence as Proof
that Arrington Possessed Firearms Used in the Webb and
Hernandez Murders and Other Charged Shootings
Evidence of an uncharged crime is inadmissible for the purpose of proving
the defendant‟s criminal disposition to commit the type of offense for which the
defendant is on trial.73 But the evidence of the Roxboro Place shooting was not
offered or admitted for such an improper purpose.74 It was offered and admitted
for a purpose we repeatedly have held to be legitimate, namely, to prove that a
defendant, Arrington, possessed weapons that recently had been used to commit
the crimes with which he was charged.75 A defendant‟s possession of a weapon
not long before or after it was used to commit a homicide for which he is on trial
73
See, e.g., Jenkins v. United States, 80 A.3d 978, 998 (D.C. 2013) (citing
Drew v. United States, 331 F.2d 85, 89-90 (D.C. Cir. 1964)).
74
The trial court instructed the jury that it was permitted to use the Roxboro
shooting evidence “only for the limited purpose of helping you decide whether a
defendant had the means to commit an offense charged in the indictment,” and not
“to conclude that the defendant has a bad character or . . . a criminal personality.”
The court added that “[t]he law does not allow you to convict a defendant simply
because you believe he may have done bad things not specifically charged as
crimes in this case.”
75
See, e.g., Jenkins, 80 A.3d at 999 (upholding admission of evidence that
defendant had committed an uncharged homicide with the same weapon used eight
days later to commit the murder for which the defendant was on trial); Jones v.
United States, 27 A.3d 1130, 1146 (D.C. 2011) (upholding admission in
prosecution for murder of evidence that the defendant had used the murder weapon
to commit an uncharged armed robbery).
50
“is some evidence of the probability of his guilt, and is therefore admissible.”76
Admissible evidence may be excluded, of course, if its probative value is
substantially outweighed by the danger of unfair prejudice.77 “This balancing of
probative value and prejudice is committed to the discretion of the trial judge, and
this court will review it only for abuse of that discretion.”78
We cannot conclude that the trial court abused its discretion here. As the
trial court noted, the Roxboro Place evidence (along with the evidence of a second
uncharged shooting, to which appellants raise no objection on appeal) was
“virtually [the] only evidence” that did not depend entirely on the credibility of
cooperating gang members that tied Arrington to the Webb and Hernandez
murders and other charged shootings. Independent witnesses and forensic DNA
and ballistic analysis corroborated Evans and Smith and linked Arrington to guns
used in the charged offenses. The probative value of this evidence was
considerable.
76
Busey v. United States, 747 A.2d 1153, 1165 (D.C. 2000) (internal
quotation marks omitted).
77
Id.
78
Id.
51
Arrington argues, however, that the trial court abused its discretion by
allowing the government to introduce far more evidence of his participation in the
violent Roxboro shooting than was necessary or appropriate given the limited
purpose for which it was admitted; in reality, he contends, “[t]he only purpose of
evidence that Arrington fired at an occupied car in the Roxboro alley was to show
Arrington‟s alleged propensity to shoot people.”79 We do not agree. It is true that
other crimes evidence should omit, where possible, unnecessary details of the
defendant‟s violence and use of a weapon; the admission of other crimes evidence
for a valid purpose is not a license to go overboard and use the evidence in an
improper manner.80 This was why the trial court precluded evidence that two
persons were killed in the Roxboro Place shooting, a fact both immaterial and
prejudicial. But the violent details of the shooting that the court allowed the
government to introduce were not superfluous.81 They were necessary for a
coherent presentation. The shell casings and bullets that police found at the scene
would have meant little absent proof that Arrington fired the guns that produced
79
Brief for Appellant Arrington at 53.
80
See Jones, 27 A.3d at 1145.
81
The trial court offered to restrict the government‟s proof if Arrington were
to stipulate to his possession of the Ruger handgun and the Mac-90 assault rifle on
June 3, 2000. However, Arrington refused to do so.
52
them.82 And the government hardly would have been able to persuasively establish
that Arrington fired those guns without explaining the circumstances in which he
did so. A truncated account that withheld this information from the jury would
have eviscerated the legitimate probative value of the Roxboro Place evidence.
The evidence of Arrington‟s wanton violence against the occupants of the
Mazda was undeniably prejudicial as well as probative. “[B]ut unfair prejudice is
minimized where the evidence is admitted for a valid purpose and has substantial
probative value, the prosecution does not present or argue it improperly, and the
court correctly instructs the jury on the permissible use it may make of the
evidence.”83 Those conditions were satisfied here: The probative value of the
Roxboro Place evidence was substantial; we do not agree with Arrington that the
prosecution “exploited the evidence to prejudice the jury against him;”84 and the
court properly instructed the jury on the limited use it could make of the evidence.
82
Cf. Jones, 27 A.3d at 1144 (noting lower court‟s recognition that
evidence of defendant‟s possession of murder weapon in an uncharged robbery
would have “little meaning” if the government were precluded from establishing
that the weapon was fired in the robbery).
83
Jenkins, 80 A.3d at 999.
84
Id.
53
On this record, we do not find undue prejudice or an abuse of the trial court‟s
discretion.
2. The Restriction of Hagans’s Cross-Examination and the Denial
of His Severance Motion
The decision to keep from the jury the fact that the Roxboro Place assault
resulted in two deaths was for Arrington‟s benefit. Hagans claimed that it
prejudiced him, however, by restricting his cross-examination of Evans and other
government witnesses for bias. Specifically, he argued, the court‟s ruling
prevented him from impeaching Evans with the fact that by cooperating with the
prosecution, he escaped being charged with two murders (instead of the single
count of assault with intent to kill while armed to which he had pleaded guilty). In
addition, Hagans argued, the ruling affected his cross-examination of Smith and
Payne regarding testimony they gave in other proceedings falsely implicating him
in the murders at Roxboro Place. Hagans moved the court to sever his trial from
that of Arrington so that he could pursue his desired cross-examination without
hindrance. The trial court, weighing the advantages of a joint trial against what it
considered to be the minimal impact of its ruling on Hagans‟s ability to cross-
examine the government‟s witnesses, denied his request.
54
We conclude that the trial court did not err, either in placing limitations on
Hagans‟s cross-examinations or in denying his request for severance. Hagans had
the right, guaranteed by the Sixth Amendment, to an opportunity for effective
cross-examination of the witnesses against him for bias. However, this does not
mean “cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish.”85 The court has discretion to impose reasonable limits on
bias cross-examination, so long as it does not preclude a “meaningful” degree of
cross-examination that allows the defense to pursue the proposed line of cross-
examination in sufficient depth to elicit the “nature and extent” of the witness‟s
bias.86 The limitation at issue here did not prevent Hagans from “meaningfully”
cross-examining Evans, Smith, and Payne. All three witnesses were heavily
85
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quoting Delaware v.
Fensterer, 474 U.S. 15, 20 (1985)).
86
Longus v. United States, 52 A.3d 836, 850-51 (D.C. 2012). As the court
elaborated in that case,
In determining what is “meaningful” cross-examination,
we have been solicitous of a defendant‟s right to
effectively expose a witness‟s various biases to the jury.
Thus, we have said, “[t]o make cross-examination based
upon witness bias effective (and thus satisfy the Sixth
Amendment), defense counsel must be „permitted to
expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of
the witness.‟” A trial court ruling therefore infringes on
the Sixth Amendment right to confrontation when it
(continued…)
55
impeached with their plea deals, and Hagans was able to confront them with their
prior inconsistent statements, including Evans‟s past denials of involvement in the
Roxboro shooting and Payne‟s alleged efforts to protect Evans by falsely
implicating Hagans in the incident. We recognize that the assault with intent to kill
charge to which Evans pleaded guilty was much less serious than the initial murder
charges and carried with it the possibility of significantly less jail time. However,
even without revealing the possible murder charges against Evans, Hagans
obtained his acknowledgement that his favorable plea deal saved him from having
to serve “more time than [he] could ever[] [have] lived to serve.” Eliciting the fact
that two people were killed in the Roxboro Place assault would have added little if
any value to Hagans‟s cross-examinations in our view. We conclude that his Sixth
Amendment right of confrontation was not infringed.
We review the trial court‟s denial of Hagans‟s severance motion for abuse of
discretion, which requires Hagans to show “not only prejudice, but manifest
(continued…)
precludes the defense from pursuing a line of
examination that is necessary to enable the jury to fully
evaluate the witness‟s credibility. It is not enough that
the possibility of bias be mentioned; counsel must be
permitted to present the nature and extent of the bias.
Id. (internal citations omitted).
56
prejudice” to his defense from the joinder of his trial with that of Arrington.87 As
our discussion of his constitutional claim makes clear, he has not made that
showing. In light of the “long-standing presumption that defendants jointly
charged with a criminal offense should be tried together,” it was well within the
trial court‟s discretion to impose the modest restriction it did on Hagans‟s
elicitation of evidence prejudicial to Arrington rather than grant Hagans a separate
trial.88
D. Contingent Ruling on the Admissibility of Smith’s Prior Consistent
Grand Jury Testimony
In his direct examination, Jason Smith testified that he was taking Haldol,
Cogentin, and Risperdal, but only, he stated, to help him sleep. On cross-
examination by Hagans‟s counsel, Smith denied having been prescribed the
medications because he had reported “hearing voices” or “see[ing] things that are
not there.” To impeach Smith, Hagans proposed to call Dr. Benjamin Adewale,
the chief psychiatrist at the D.C. Jail, to testify that he had prescribed the
87
Mercer v. United States, 724 A.2d 1176, 1193 (D.C. 1999).
88
Cf. Boone v. United States, 769 A.2d 811, 817-18 (D.C. 2001) (upholding
denial of severance where the trial court limited a defendant‟s cross-examination of
a witness about his plea deal in a previous case, so as to avoid disclosing that one
of the persons the witness had agreed to testify against in that case was also the
defendant‟s co-defendant in the current case).
57
medications because Smith had been having auditory hallucinations and
manifesting other psychotic symptoms. It was Dr. Adewale‟s opinion, though he
could not be certain, that these symptoms were triggered by sexual abuse Smith
had suffered while he was at the Jail.89
Hagans sought to present Dr. Adewale‟s testimony not only to show that
Smith had told a lie on the witness stand in claiming his medications were just a
sleep aid, but also to establish that the medications were prescribed because Smith
suffered from hallucinations. As the trial court recognized, the main thrust of the
latter impeachment would be not merely to prove that Smith had lied on the
witness stand; rather, it would be to suggest that Smith‟s testimony at trial was the
product of, or influenced by, his hallucinations and therefore not worth crediting.
The government argued that Smith‟s prior consistent grand jury testimony (given
before he was incarcerated and hence before he was sexually assaulted) should be
admissible to counter such a suggestion. The trial court agreed, concluding that
89
The mental health counselors who evaluated Smith when he was admitted
to the Jail did not note any signs of mental illness in his intake records, and Smith
had no known history of psychosis before he was sexually assaulted there.
58
this would “fairly put[] the hallucination issue before the jury and prevent[] it from
taking on more value than its worth.”90
Given the court‟s ruling, the defense decided not to present testimony that
Smith suffered from hallucinations. In lieu of calling Dr. Adewale as a witness,
the parties agreed to a stipulation, which Hagans‟s counsel read to the jury, that
“the psychiatrist who treated Jason Smith at the D.C. Jail would testify that the
medications Haldol, Cogentin and Risperdal were prescribed for Jason Smith to
treat his mental health condition and not to assist him as a sleep aid.”
In this court, appellant Leaks (joined by the other appellants) argues that the
trial court erred in ruling that Smith‟s prior consistent statements would be
admissible to rehabilitate him if the defense presented evidence that he had
hallucinations. Appellants further argue that the court violated their Sixth
Amendment confrontation rights by restricting their ability to impeach Smith with
such evidence. Because appellants did not invoke the Confrontation Clause in the
90
The court emphasized that Hagans had an “absolute right” to put Smith‟s
hallucinations before the jury. It was cognizant of this court‟s decision in Brown v.
United States, 766 A.2d 530, 538-39 (D.C. 2001), holding that a witness‟s
credibility may be impeached by evidence the witness has a mental disorder with
symptoms including visual and auditory hallucinations.
59
trial court and opted not to present Dr. Adewale‟s testimony about Smith‟s
hallucinations, it is arguable that they forfeited these claims.91 The government
does not urge us to decide that issue, however, and we need not do so, because we
are satisfied that the court did not err as claimed.
A trial court has “broad discretion” to permit a party to introduce a witness‟s
prior consistent statement to rebut a suggestion that the witness‟s testimony at trial
is a recent fabrication, provided the court finds the prior statement was made when
the asserted or implied motive or other reason for the alleged fabrication did not
exist.92 Typically, this means the prior statement must have been made before the
claimed motive or influence arose.93
91
See Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006) (“Because
counsel objected at trial to the admission of the statement on purely evidentiary
grounds and did not raise a Confrontation Clause objection, we must review the
claim for plain error.”) (footnote omitted); Butler v. United States, 688 A.2d 381,
386-88 (D.C. 1996) (holding that the defendant failed to preserve his challenge to
an in limine ruling that impeachment of the arresting officers for bias would open
the door to evidence of the defendant‟s prior arrests, where the defendant chose to
forego the bias impeachment and the trial court was never called upon to decide
precisely what evidence the government would be allowed to present in rebuttal);
see also Brisbon v. United States, 894 A.2d 1121, 1130-31 (D.C. 2006).
92
Rowland v. United States, 840 A.2d 664, 679 (D.C. 2004); see also, e.g.,
Mason v. United States, 53 A.3d 1084, 1090-92 (D.C. 2012). D.C. Code § 14-102
(b) (2013 Repl.) provides that prior consistent statements are “not hearsay,” and
are admissible as “substantive evidence,” when properly offered “to rebut an
express or implied charge against the witness of recent fabrication or improper
(continued…)
60
The trial court properly applied these principles in connection with Hagans‟s
proffered evidence that Smith was taking antipsychotic drugs to suppress his
hallucinations. The court reasonably could find, as it did, that the evidence Smith
had suffered from hallucinations would suggest to the jury that his testimony
against appellants contained hallucinatory fabrications. Based on Dr. Adewale‟s
expert opinion and Smith‟s available mental health records, the court reasonably
could find as well that Smith‟s hallucinations were probably caused by his sexual
assault at the D.C. Jail, which occurred sometime after Smith testified before the
grand jury.94 A more-likely-than-not finding was sufficient for these purposes, as
preponderance of the evidence is the “standard . . . traditionally used in deciding
(continued…)
influence or motive.” This statutory provision is substantively identical with
Federal Rule of Evidence 801 (d)(1)(B).
93
That temporal priority is a requirement under the Federal Rules of
Evidence. See Tome v. United States, 513 U.S. 150, 167 (1995) (holding that
Federal Rule of Evidence 801 (d)(1)(B) “permits the introduction of a declarant‟s
consistent out-of-court statements to rebut a charge of recent fabrication or
improper influence or motive only when those statements were made before the
charged recent fabrication or improper influence or motive”). However, we have
held that “there is no such per se rule in this jurisdiction.” Reed v. United States,
452 A.2d 1173, 1181 n.8 (D.C. 1982).
94
See Mason, 53 A.3d at 1090 n.4 (“Though the common phrase is „recent‟
fabrication or contrivance, the term „recent‟ is misleading. It is not required to be
near in point of time to the trial, but only that the alleged contrivance be closer to
the trial in point of time than the consistent statement.”) (quoting MCCORMICK,
EVIDENCE § 47, at 228 n.36 (6th ed. 2006)).
61
preliminary fact questions” relating to the admissibility of “virtually all”
evidence.”95 The court therefore could find Smith‟s prior consistent grand jury
testimony to be admissible to rebut the suggestion that Smith‟s in-court testimony
was the product of his hallucinations.
Taking issue with this conclusion, appellants primarily argue that Smith‟s
prior consistent statements were inadmissible because Dr. Adewale‟s testimony
suggested only that Smith was delusional, not that he was “deliberately lying.”96
But we have never held that the use of prior consistent statements to rehabilitate a
witness is limited to charges of deliberate lying, and appellants do not provide us
with a sound rationale for adopting such a limitation. Historically, we think, the
rule has been more broadly understood; McCormick on Evidence states:
[A]t common law under the prevailing temporal priority
doctrine, if the attacker has charged bias, interest, corrupt
influence, contrivance to falsify, or want of capacity to
observe or remember, the prior consistent statement is
deemed irrelevant to refute the charge unless the
consistent statement was made before the source of the
bias, interest, influence or incapacity originated. If the
95
Devonshire v. United States, 691 A.2d 165, 169 (D.C. 1997).
96
Brief for Appellant Leaks at 39 (asserting that the rule permitting the
introduction of prior consistent statements “relates only to charges of recent
fabrication—that is, to charges that a witness is deliberately lying”).
62
statement was made later, proof of the statement does not
assist the jury to evaluate the witness‟s testimony
because the reliability of the consistent statement is
subject to the same doubt as the trial testimony.97
In other words, under the “prevailing doctrine,” an attack based on the witness‟s
impaired mental condition at the time of trial may be answered with proof that the
witness made consistent statements before the impairment developed.98 This
proposition makes sense, and we see no reason to reject it.
97
Kenneth S. Broun et al., 1 MCCORMICK ON EVIDENCE § 47, at 314 (7th
ed. 2013); see also Tome, 513 U.S. at 156 (“The applicable principle is that the
prior consistent statement has no relevancy to refute the charge unless the
consistent statement was made before the source of the bias, interest, influence or
incapacity originated.”) (quoting E. Cleary, MCCORMICK ON EVIDENCE § 49, at 105
(2d ed. 1972)); R. Park & T. Lininger, THE NEW WIGMORE, A TREATISE ON
EVIDENCE: IMPEACHMENT AND REHABILITATION § 9.4, at 344 (2012 ed.) (stating
that Tome “should not be read to categorically prohibit the use of consistent
statements in . . . cases where the asserted basis for inaccuracy is „incapacity,‟”
even though the concept of the declarant‟s incapacity is not specifically mentioned
in Federal Rule of Evidence 801 (d)(1)(B)).
98
Admittedly, it is rare for a witness‟s prior consistent statements to be
offered to rebut impeachment based on the witness‟s impaired mental condition.
But it happened at the trial in Lowery v. Commonwealth, 566 S.W.2d 750 (Ky.
1978). In that case the Supreme Court of Kentucky held that a prior consistent
statement could be used to rehabilitate a prosecution witness who was impeached
with the fact that he had been drinking shortly before he took the stand and had
been “locked up for being drunk.” The court reasoned:
Evidence of the present lack of sobriety of a witness is
doubtless admissible. It tends to discredit his testimony
because it involves a diminution of his trustworthiness in
respect to his present ability to recollect and
(continued…)
63
Thus, we hold that there was no abuse of discretion in the trial court‟s
evidentiary ruling. Furthermore, that ruling did not infringe appellants‟ Sixth
Amendment rights to cross-examine the government‟s witnesses and present
evidence impeaching them. The ruling at issue did not curtail those rights in any
way; it did not limit appellants‟ cross-examination of Smith, nor did it prevent
them from calling Dr. Adewale to complete Smith‟s impeachment. Allowing the
government to introduce admissible evidence in rebuttal was not an infringement
of appellants‟ Sixth Amendment rights, even if it dissuaded appellants from
exercising them.
E. Prosecutorial Argument Regarding Payne’s Grand Jury Testimony
Appellants contend that the government, with the trial court‟s sanction,
improperly bolstered Payne‟s credibility by referring to grand jury testimony that
(continued…)
communicate . . . . Once the present ability of the
witness to recollect and communicate is discredited,
consistent statements made before the onset of the
malady become relevant and probative. They tend to
support the accuracy of the testimony by showing that the
story was the same before the fogging of the memory and
the thickening of the tongue.
Id. (internal citations omitted). We think this reasoning is sound.
64
was not in evidence. For the reasons that follow, we conclude that appellants are
not entitled to relief on this ground.
From Payne‟s direct examination at trial, the jury learned that he had
appeared before the grand jury on two days, September 13 and 15, 2000, to testify
about the shooting of Eva Hernandez as well as the encounter with Nadir Madhi
earlier that day that might have instigated the shooting. The government did not
elicit any further details of that testimony. During Payne‟s cross-examination,
however, the jury learned that his trial testimony arguably diverged from his grand
jury testimony on four specific points: the color of the stolen Honda Accord that
Payne drove to and from Fourteenth Street on May 17, 2000; how he and Leaks
cleaned the car; the particular weapon Hagans fired during the incident; and
whether Evans was at the D.C. Jail or in a half-way house on May 17. No other
purported inconsistencies between Payne‟s grand jury and trial testimony were
identified. On redirect, Payne confirmed his grand jury testimony as to which car
he was driving notwithstanding his mistake in the grand jury about its color. The
jury heard nothing further about the content of the testimony.99
99
The jury did learn, though, that Payne had no deal with the government
when he appeared before the grand jury, and that he did not enter into his
cooperation plea agreement until December 2001.
65
The government subsequently moved to introduce forty-five pages of
Payne‟s grand jury transcripts in evidence to rebut what it viewed as an implied
charge by Hagans‟s counsel of recent fabrication, namely that the government had
“bought and paid for” Payne‟s testimony with the financial benefits he gained from
having been placed in the Witness Protection Program.100 Although the trial court
agreed that the suggestion of recent fabrication had been made, it denied the
government‟s request. The court indicated, however, that further emphasis by the
defense on the monetary benefits Payne received might open the door to rebuttal
argument based on Payne‟s prior consistent grand jury testimony. Later, after
certain defense counsel sought to discredit Payne in their closing arguments by
citing how much the government had paid on his behalf when he was in the
Witness Protection Program, the government moved to reopen the evidence to
introduce his grand jury testimony. The trial court declined to reopen the evidence
but ruled there was “certainly a record” enabling the government to argue that
Payne identified who was involved in the May 17 raid in which Hernandez was
killed “before anyone got a cent or there was any protection.”
100
Payne requested witness protection after he testified in the grand jury.
Eventually, he and Tamika Payne entered the Witness Protection Program and
were relocated. While they were in the Program, the government disbursed
approximately $81,000 to cover their living expenses.
66
In the government‟s closing and rebuttal arguments, the prosecutor referred
to Payne‟s grand jury testimony primarily to make three points: (1) that Payne‟s
account of the events surrounding the murder of Hernandez had been corroborated
by a great deal of independent evidence; (2) that Payne‟s testimony at trial had not
been impeached; and (3) that his testimony had not been influenced by the benefits
he had received from the Witness Protection Program and his cooperation plea
agreement.
As to the first point, the prosecutor argued that when Payne appeared in the
grand jury, he had no “control” over the other facts that would come to light “that
tell you that what he‟s saying is the truth”—he could not have known that Nadir
Mahdi would plead guilty two years later, that other witnesses would emerge and
confirm his testimony, or that the police would acquire forensic and other
corroborative evidence. Hagans‟s counsel objected to this line of argument on the
ground that the government was “arguing prior consistent statements that are not in
evidence . . . . This whole argument is what [Payne] told the grand jury is the same
as what he is telling you here today.” The court overruled this objection, stating
that the government‟s argument “meets the force of the impeachment that will be
argued and that has been suggested.”
67
As to the second point, the prosecutor argued that
Charles Payne when he first testified, I submit to you,
didn‟t talk about a single significant fact that wasn‟t true.
His appearances over those two days at one time did he
lie about anything significant that mattered[?] Such as
who was responsible, how did the shootings occur, where
did they happen, when, who was involved?
There was no objection to this argument.
Lastly, as to the third point, in rebuttal the prosecutor argued that Payne‟s
witness protection payments and plea agreement “could not have influenced” his
trial testimony, as had been suggested by the defense in closing, because Payne
gave the same testimony to the grand jury long before either motive to fabricate
arose. There was no objection to this argument either.
In reviewing a challenge to prosecutorial argument, we consider whether the
prosecutor‟s statements were in fact improper, and if they were, whether the
defendant suffered “substantial prejudice.”101 Appellants claim that the
prosecutors‟ references to Payne‟s grand jury testimony were improper because
that testimony had not been admitted in evidence (the trial court having denied the
101
Fearwell v. United States, 886 A.2d 95, 102 (D.C. 2005).
68
government‟s requests to introduce some forty-five pages of grand jury transcript).
We do not agree. “[I]t is improper for an attorney to make an argument to the jury
based on facts not in evidence or not reasonably inferable from the evidence.”102
But even without having Payne‟s grand jury transcript to read, the jury heard that
Payne testified for two days in the grand jury about the shooting of Eva Hernandez
and the earlier encounter with Nadir Mahdi; it heard the defendants impeach
Payne‟s trial testimony regarding those events with only a few minor
inconsistencies in his grand jury testimony; and it heard the government
rehabilitate Payne with other portions of that testimony. From all that it heard, the
jury surely could infer quite reasonably and permissibly that Payne‟s testimony
before the grand jury was consistent in all material respects with his testimony at
trial. Defense counsel undoubtedly would have cross-examined Payne about any
material deviation, had there been any.
Thus, the question before us is not whether the prosecutors argued facts
outside the evidence, but whether they made a legally improper argument. On that
score, appellants contend the prosecutors used Payne‟s grand jury testimony
improperly to bolster the credibility of his testimony at trial.
102
Id. at 101 (internal quotation marks and brackets omitted).
69
The general rule is that “[p]rior consistent statements may not be used to
bolster an unimpeached witness;” the rationale being that “mere repetition does not
imply veracity.”103 And impeachment with a prior inconsistent statement does not
automatically render it permissible to introduce and argue prior consistent
statements to rehabilitate the witness, for generally speaking, “evidence of
additional consistent statements does not remove the inconsistencies.”104 As we
already have seen, though, the general rule has its exceptions; among them, that
prior consistent statements may be used to rehabilitate a witness when (1) there is
an express or implied charge of recent fabrication, or (2) the witness has been
impeached with a portion of a statement and the rest of the statement “contains
relevant information that could be used to meet the force of the impeachment” (a
rule-of-completeness concept).105
Two of the prosecutors‟ references to Payne‟s grand jury testimony, to
which no contemporaneous objection was even made, fit comfortably within one
103
Daye v. United States, 733 A.2d 321, 325 (D.C. 1999) (quoting Reed v.
United States, 452 A.2d 1173, 1179 (D.C. 1982), and Warren v. United States, 436
A.2d 821, 836 (D.C. 1981)).
104
Id. (quoting Warren, 436 A.2d at 836).
105
Reed, 452 A.2d at 1180.
70
or the other of these exceptions. First, to rebut Payne‟s impeachment with a few
inconsistencies on minor points culled from his grand jury testimony, it was
permissible on this record for the prosecutor to argue (pursuant to the “rule of
completeness” exception) that Payne did not testify falsely or inconsistently in the
grand jury “about anything significant.”106 As we have said, this was a fact fairly
inferable from the evidence. Second, to refute the suggestion that Payne lied about
appellants to get the monetary benefits of being in the Witness Protection Program,
it was permissible (under the “recent fabrication” exception) for the prosecutor to
respond that Payne incriminated appellants in his grand jury testimony months
“before one dime was ever spent on his behalf.”107 The prosecutor‟s additional
assertion that Payne‟s grand jury testimony could not have been influenced by his
plea agreement fifteen months later is perhaps more debatable, inasmuch as Payne
concededly was hoping to reduce his sentencing exposure and “salvage something”
106
Appellants assert that the prosecutor improperly vouched for the truth
and content of Payne‟s grand jury testimony when he “submit[ted]” to the jury that
Payne “didn‟t talk about a single significant fact that wasn‟t true.” We disagree; in
context, this was argument, based on the evidence, that Payne had not been
impeached, not an expression of the prosecutor‟s personal opinion of Payne‟s
credibility.
107
This is so even though Payne may have had other motives to lie to the
grand jury. See Mason v. United States, 53 A.3d 1084, 1091-93 (D.C. 2012)
(holding that “a prior consistent statement, made when a witness had a motive to
lie, may be admitted to rebut a charge of fabrication alleged to have been
motivated by a more recent, and different, motive”).
71
even when he appeared before the grand jury.108 But the jury was well aware of
Payne‟s motives when he testified in the grand jury, and the prosecutor did not
dispute them. We cannot say that the prosecutor‟s limited point about Payne‟s plea
agreement was improper.109
That brings us to the government‟s assertions that Payne could not have
foreseen all the corroboration there would be following his grand jury appearance.
To the extent these assertions served to enhance the credibility of Payne‟s grand
jury testimony, they were in tension with the general rule against using prior
consistent statements to bolster a witness‟s in-court testimony. On the other hand,
the trial court, in overruling the defense objection, deemed this argument to be a
permissible rejoinder to the previously implied and anticipated impeachment of
Payne—by which we presume the court meant the suggestions that the government
had “bought and paid” for Payne‟s testimony through the Witness Protection
108
Cf. Daye, 733 A.2d at 327 (“This court . . . has rejected the argument that
impeachment with the fact of immunity provides the basis for admitting prior
consistent statements of a witness accused of having a bias to shift blame to others
from the beginning.”).
109
Cf. Mason, 53 A.3d at 1093 (“Where the jury has been exposed to the
witness‟s motive to fabricate both before and after the prior consistent statement
was made, the better rule is to allow counsel to argue their inferences to the jury
and let jurors weigh the evidence.”).
72
Program. And as we have noted, by the time the prosecutor stood up to make the
government‟s rebuttal argument, the trial court had ruled explicitly that the
government could use Payne‟s grand jury testimony to rebut the implied charge of
recent fabrication. Since a prior consistent statement is substantive evidence when
used for that purpose,110 it would seem that it was ultimately permissible for the
government to argue the credibility of Payne‟s grand jury testimony.
More important, the prosecutors did not contend that Payne‟s prior
consistent testimony reinforced his credibility under the flawed logic that
“repetition implies veracity,” nor did they explicitly urge the jury to rely on the
truth of what Payne said in the grand jury as distinct from his testimony at trial.
Rather, the government‟s main point was simply that Payne was corroborated by
powerful, independent evidence. This certainly was a valid and permissible point
to make; and the prosecutors emphasized it in both the initial closing argument and
the rebuttal argument, usually without referring to Payne‟s grand jury testimony at
all. The references to that testimony were tangential to their theme and were only
a small part of the argument made on behalf of Payne‟s credibility.
110
D.C. Code § 14-102 (b).
73
Thus, we consider it by no means clear that the prosecutors improperly
bolstered Payne with his grand jury testimony, as appellants contend. We are
satisfied that the prosecutors committed no serious impropriety, if there was any at
all. Moreover, we readily conclude that appellants suffered no substantial
prejudice as a result of any inappropriate bolstering that may have occurred.111 As
we have observed in the past, “only in a case where the government‟s proof of
guilt was „marginal‟ have we thought the prejudice from this impermissible
bolstering enough to warrant reversal without more.”112 This was not such a case.
The proof of each appellant‟s guilt was relatively strong, as the government backed
up the testimony of Payne and several other cooperating witnesses with testimony
from a host of corroborating expert and lay witnesses.113 We are confident that the
111
The applicable test is “whether we can say „with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error[.]‟” Washington v.
United States, 884 A.2d 1080, 1088 (D.C. 2005) (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)).
112
Daye, 733 A.2d at 327; accord Porter v. United States, 826 A.2d 398,
410 (D.C. 2003).
113
So, for example, appellant Allen (who has taken the lead on appeal in
making the claim of improper bolstering) argues inter alia that the case against him
was weak and depended on Payne, “whose motives were suspect,” and that without
his grand jury testimony to reinforce his credibility, the jury “could have wondered
if Payne fabricated details of his testimony in cooperation with the government.”
(continued…)
74
references to Payne‟s grand jury testimony in the prosecutors‟ arguments made no
difference to the outcome.
F. Denial of Separate Trials for Appellants Allen and Leaks
Both Allen and Leaks claim the trial court abused its discretion in denying
their motions for separate trials. They assert severance was required pursuant to
Criminal Rule 14114 because the disparate charges and weight of the evidence
against their co-defendants Arrington and Hagans “created a high risk of
prejudicial spillover and invited the jury to convict [them] on a guilt-by-association
theory.”115 Specifically, Allen and Leaks complain, while they were charged with
(continued…)
Brief of Appellant Allen at 35. This is unpersuasive. While Payne unquestionably
was a key prosecution witness, there was no evidence he fabricated details of his
testimony; rather, his testimony at trial was amply corroborated, and he was one of
several witnesses who testified that Allen (along with the other defendants) was a
Delafield gang member who actively took part in the May 17 shooting. Jason
Smith, himself a participant in that shooting, testified to Allen‟s involvement in it;
Sean Gardner reported watching Allen and the others prepare immediately before
the shooting and dispose of the evidence afterward; and Marquet McCoy testified
that both Allen and Leaks remorsefully told him of their participation in the
shooting.
114
Super. Ct. Crim. R. 14.
115
Brief of Appellant Leaks at 41; see also Brief of Appellant Allen at 43
(contending that the “disparate charges and evidence” against Allen and his co-
defendants necessitated that he be tried separately).
75
a single incident (the May 17, 2000, raid resulting in the murder of Hernandez and
wounding of Flores-Bonilla), the jury in their joint trial with Arrington and Hagans
heard a great deal of prejudicial testimony about numerous other violent crimes,
charged and uncharged, in which they were not involved. Allen further argues that
even with regard to the May 17 shooting, the disproportionately greater evidence
against his co-defendants was prejudicial to him and might have been excluded had
he been tried separately.116
Under Criminal Rule 14, a trial court may grant severance if it appears that a
defendant will be prejudiced by joinder, but “[t]his discretionary authority is to be
exercised with caution;” in view of the strong policy reasons and longstanding
presumption in favor of joint trials, a court “should grant a severance under Rule
14 only if there is a serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a reliable judgment
116
Leaks presents the additional argument that the joinder for trial of
Arrington‟s indictments for the Tabron and Nelson shootings with the original
indictment was improper under Superior Court Criminal Rule 8 (b). On its merits,
we think this claim of misjoinder to be doubtful at best, but we need not decide it.
The Rule 8 (b) objection was not made below; the argument is made for the first
time on appeal. Even assuming Leaks has not waived the objection, he has not
made the demonstration of plain error that might justify relief on this ground. See
Taylor v. United States, 603 A.2d 451, 455 (D.C. 1992); see also Howerton v.
United States, 964 A.2d 1282, 1290 (D.C. 2009).
76
about guilt or innocence.”117 We will reverse a trial court‟s denial of a motion for
severance “only upon a clear showing that it has abused its considerable
discretion.”118 To demonstrate such an abuse, an appellant must show “manifest
prejudice.”119
Allen and Leaks have not made that showing. In the first place, that they
were not accused of having participated in any violent incidents besides the May
17 shooting does not mean substantial evidence of those other incidents would
have been excluded had they been tried separately. In addition to the shooting,
they were charged with having joined a conspiracy to assault and kill members,
associates, and friends of the Mahdi brothers‟ organization. “In a conspiracy case,
wide latitude is allowed in presenting evidence, and it is within the discretion of
the trial court to admit evidence which even remotely tends to establish the
conspiracy charged.”120 Even if Allen and Leaks had been tried separately,
117
Moore v. United States, 927 A.2d 1040, 1056 (D.C. 2007) (quoting
Zafiro v. United States, 506 U.S. 534, 539 (1993)).
118
Coleman v. United States, 948 A.2d 534, 544 (D.C. 2008) (internal
quotation marks omitted).
119
Id. at 544-45 (internal quotation marks omitted).
120
Castillo-Campos, 987 A.2d 476, 493 (D.C. 2010) (internal quotation
marks omitted) (holding that appellant was properly joined in a conspiracy trial,
(continued…)
77
considerable evidence of the charged substantive offenses in which they did not
participate would have been relevant and admissible to establish the existence of
the conspiracy. The evidence also would have been admissible to establish the
motive for the May 17 shootings. In addition, evidence of the Roxboro Place
shooting could have been admissible in separate trials of Allen and Leaks to prove
their alleged accomplice Arrington‟s possession of the weapons used in the May
17 raid. Allen and Leaks argue that had they been tried separately, the trial court
likely would have excluded some of this evidence of their co-conspirators‟ violent
actions as substantially more prejudicial than probative. But we have no reason to
doubt that much of the evidence still would have been introduced, permissibly, for
the legitimate purposes mentioned.121
(continued…)
even though fifty-three of the charged overt acts occurred before the first overt act
with which he was charged).
121
We think it clear, moreover, that the proof of Arrington‟s and Hagans‟s
commission of the May 17 shootings would have been relevant and admissible in
separate trials of Allen and Leaks. Allen argues that his co-defendants‟ self-
incriminating statements to other Delafield gang members would have been
excluded in a separate trial as hearsay or as being prejudicially inflammatory. But
at least some of the alleged statements likely were admissible against Allen under
the penal interest exception to the rule against hearsay, and since those statements
did not mention Allen, we are confident they were not unfairly prejudicial to him.
78
Even if that were not so, and Allen and Leaks might have had a better
chance of being acquitted had they been tried separately, that would not suffice to
demonstrate error in the denial of severance.122 In general, “[a] defendant is not
entitled to severance merely because the evidence against a codefendant is more
damaging than the evidence against him.”123 It is true that “in some cases, „where
the evidence of a defendant‟s complicity in the overall criminal venture is de
minimis when compared to the evidence against his codefendants,‟” we have
recognized the possibility of a “spillover effect” that might be so prejudicial as to
call for severance.124 But the evidence that Allen and Leaks entered the charged
conspiracy and participated in the May 17 shootings was far from de minimis,
given that Payne and Smith described on the witness stand how the two defendants
joined with them in the venture from start to finish; Gardner described seeing them
prepare for the attack and dispose of incriminating evidence afterwards; and
122
See Roy v. United States, 871 A.2d 498, 504 (D.C. 2005).
123
Hargraves v. United States, 62 A.3d 107, 116 (D.C. 2013) (quoting
Christian v. United States, 394 A.2d 1, 21 (D.C. 1978)).
124
Id. (quoting Christian, 394 A.2d at 21); see also, e.g., Catlett v. United
States, 545 A.2d 1202, 1209 (D.C. 1988) (“Disparity of the evidence may pose a
risk of prejudice requiring reversal, but only where the evidence of a defendant‟s
complicity in the overall criminal venture is de minimis when compared to the
evidence against his codefendants.”) (internal quotation marks omitted).
79
McCoy testified that Allen and Leaks each regretfully acknowledged their
involvement to him.
Ultimately, the issue of “spillover” prejudice turns on “whether the evidence
presented was so complex or confusing that the jury would have been unable to
make individual determinations about the guilt or innocence of each defendant.”125
We conclude this was not such a case. The non-involvement of Allen and Leaks in
any substantive crimes other than the May 17 shootings was clear; there is “no
indication that the evidence was too unwieldy for the jury to keep straight or that
jurors were unable to make individual determinations about each appellant‟s guilt
or innocence as to the substantive offenses with which each was charged.”126 To
minimize the danger of jury confusion, the government presented its evidence, as it
did in Castillo-Campos, “incident by incident, having witnesses return to the stand
multiple times to offer their testimony as to particular incidents and their
participants, rather than having each witness testify at one sitting to all incidents of
which he had knowledge.”127 The trial court instructed the jury to consider the
125
Hargraves, 62 A.3d at 117 (internal quotation marks, brackets and
ellipses omitted).
126
Castillo-Campos, 987 A.2d at 493.
127
Id.
80
uncharged-crime evidence only in determining whether Arrington had the means to
commit the charged offenses.128 The court also instructed the jury that “[e]ach
defendant is entitled to have his guilt or innocence as to each of the crimes charged
to him determined from his own conduct and from the evidence which applies to
him as if he were being tried alone;” and that “[t]he guilt or innocence of any one
defendant of any of the crimes charged should not control or influence your
verdicts as to any other defendant.” In view of all these factors, we are confident
“[t]he jury clearly did not find [Allen or Leaks] guilty of anything based on the
evidence of his co-defendants‟ greater culpability.”129 The trial court did not abuse
its discretion in denying their severance motions.
G. Sufficiency of the Evidence against Allen and Leaks
Leaks and Allen contend the government presented insufficient evidence
that they had a specific intent to kill to support their convictions for the armed first-
128
As previously mentioned, to reduce the potential for unfair prejudice, the
court also excluded evidence that anyone was killed in the Roxboro incident.
129
Hargraves, 62 A.3d at 117.
81
degree murder of Hernandez130 and the AWIKWA of Flores-Bonilla.131
Arrington‟s declaration that they were “going to go back down there and light them
[the Mahdis] up” was, Leaks argues, “ambiguous at best” and only indicated a plan
to shoot up the Mahdis‟ neighborhood, not a specific plan to kill anyone.
Moreover, Leaks asserts, “[t]here was no evidence that any persons were in view,
or that any of the Delafield members specifically shot at any person,” during the
attack on May 17, 2000; rather, he says, “the evidence was that they shot at a
house,” and while “they could reasonably have believed [the house] to have been
occupied,” that would not be enough to show the requisite specific intent to kill.132
Allen, who adopts Leaks‟s arguments, asserts in addition that there was no
evidence he actually fired a weapon that evening (as there was with respect to each
of the other appellants).
130
“First-degree premeditated murder is murder committed with the specific
intent to kill after premeditation and deliberation.” Kitt v. United States, 904 A.2d
348, 353 (D.C. 2006).
131
“To prove the AWIKWA charges . . . the government had to show
beyond a reasonable doubt that [appellants]: (1) made an assault on the
[complainant]; and (2) did so with specific intent to kill; (3) while armed.” Nixon
v. United States, 730 A.2d 145, 148 (D.C. 1999).
132
Brief of Appellant Leaks at 49.
82
When reviewing a sufficiency challenge, “[w]e view the evidence in the
light most favorable to the government, recognizing the province of the trier of fact
to weigh the evidence, determine the credibility of the witnesses and to draw
reasonable inferences from the testimony.”133 A “conviction will be overturned
only where there has been no evidence produced from which guilt may reasonably
be inferred.”134
The evidence in this case showed that appellants, including Leaks and Allen,
agreed upon and carried out a plan of retaliation for Nadir Mahdi‟s attempt to kill
Arrington and his comrades earlier that day. They decided to go to Fourteenth
Street to shoot Mahdi gang members. They armed themselves for the purpose with
massive, lethal firepower, including two assault rifles. Upon arriving on the scene,
they immediately unleashed an indiscriminate attack that lasted for minutes, firing
a hail of bullets in the direction of the house where Nadir Mahdi had been seen.135
133
Dickerson v. United States, 650 A.2d 680, 683 (D.C. 1994).
134
Lewis v. United States, 767 A.2d 219, 222 (D.C. 2001).
135
Allen‟s assertion that there was no evidence he fired a weapon is
incorrect. Although Payne and Smith testified they did not see whether he did so,
Gardner testified that Allen told him he fired the shotgun twice before it jammed,
and the police found two expended shotgun shell casings in the stolen Accord in
which Allen had ridden. But even if Allen did not shoot, the remaining evidence
(continued…)
83
Hernandez was in plain sight out on the street close to that house when she was
gunned down in the fusillade.136 Flores-Bonilla was inside her neighboring house
when she was wounded by a bullet that came in through her window. Based on
this evidence, we think the jury was entitled to find that appellants all set forth on a
mission to Fourteenth Street to kill Mahdi gang members they found there, and that
their intent to do so extended to the killing of Hernandez and wounding of Flores-
Bonilla if only because each of those bystander victims was in the wide zone of
lethal danger appellants intentionally created by their barrage of gunfire in their
attempt to carry out their mission. As the trial court instructed the jury, “if a
person intentionally creates a kill zone to ensure the death of his primary victim[,]
you may infer, from the method used, an intent to kill others concurrent with the
intent to kill the primary victim.”137 Further, the doctrine of transferred intent, on
(continued…)
supported a finding that he shared the intent to kill Mahdi gang members when he
joined in the undertaking to do so.
136
For this reason, we reject Leaks‟s assertion that there was no evidence
appellants saw and deliberately shot at anyone during the attack. The jury readily
could have found that Hernandez was visible to appellants, and that at least one
appellant deliberately fired on her.
137
See, e.g., Freeman v. United States, 912 A.2d 1213, 1219 (D.C. 2006)
(“Even though appellant . . . merely fired in [the decedent‟s] direction, this court
has held that causing another person to be in a „zone of harm‟ is sufficient to
establish a specific intent to kill.”); Nixon v. United States, 730 A.2d 145, 149
(D.C. 1999) (“[W]here the means employed to commit the crime against a primary
(continued…)
84
which the jury also was instructed, allowed appellants to be held liable for the
death of Hernandez and wounding of Flores-Bonilla even though the appellants
intended to kill Madhis.138 We conclude, therefore, that the evidence was sufficient
for the jury to find that Leaks and Allen possessed the requisite intent to kill to
support their convictions of first-degree murder while armed and AWIKWA.
H. Cumulative Effect of the Errors
Appellants argue that the combined prejudicial effect of the errors in this
case warrants reversal of their convictions even if no single error alone was grave
enough to require such relief. We have recognized that multiple errors must be
evaluated in light of their cumulative impact on the fairness of the trial.139
Assessing whether the cumulative impact of several errors mandates reversal is not
(continued…)
victim created a zone of harm around that victim, the factfinder can reasonably
infer that the defendant intended that harm to all who are in the anticipated zone.”)
(quoting Ruffin v. United States, 642 A.2d 1288, 1298 (D.C. 1994)).
138
See O'Connor v. United States., 399 A.2d 21, 24 (D.C. 1979) (noting that
the doctrine of transferred intent “provides that when a defendant purposely
attempts to kill one person but by mistake or accident kills another, the felonious
intent of the defendant will be transferred from the intended victim to the actual,
unintended victim”).
139
See Foreman v. United States, 792 A.2d 1043, 1058 (D.C. 2002).
85
conceptually difficult when the same evaluative standard applies to each error. For
example, when all the errors are non-constitutional and preserved for appellate
review, and the traditional Kotteakos standard therefore applies to each of them,
we readily apply that standard to the combination of errors: We must be satisfied
that the errors en masse did not “substantially” influence the jury‟s verdict in order
to affirm the judgment on appeal.140 Similarly if the errors all were unpreserved,
their aggregate impact would have to amount to plain error before the court might
exercise its discretion to grant relief.141 And presumably, if the errors all are
constitutional and preserved, so that the Chapman standard applies to each error,
we would have to reverse unless we could say that even in combination they were
harmless beyond a reasonable doubt.
The present case is not so simple; we have identified (or assumed arguendo)
preserved constitutional error in the admission of the Mahdi plea proffers;
preserved non-constitutional error in the introduction of Leaks‟s inculpatory
140
Id. at 1058-59 (citing the test for harmless non-constitutional error set
forth in Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
141
See Euceda v. United States, 66 A.3d 994, 1011 (D.C. 2013) (“We review
all of these claims and their cumulative effect for plain error because Mr. Euceda's
trial counsel did not object in any of these matters.”); United States v. Necoechea,
986 F.2d 1273, 1282-83 (9th Cir. 1993) (“[A]ll of the errors Necoechea raises are
subject to plain error review. Therefore we review the cumulative impact of the
possible plain errors for plain error.”).
86
statements to McCoy; and (possible) unpreserved error in the admission of party-
opponent statements and the joinder of indictments for trial. Each type of error is
subject to a different test (Chapman, Kotteakos, plain error) for determining
whether it requires reversal. This court has never addressed how to evaluate the
cumulative impact of such a mixed bag of errors, and there is little pertinent
authority elsewhere. The Supreme Court has yet to confront the issue. As for the
federal appellate courts, it appears that only the Tenth Circuit has delved into the
question. It has concluded that “[i]f any of the errors being aggregated are
constitutional in nature, the cumulative error must be harmless beyond a
reasonable doubt, in accordance with Chapman;”142 and that if there are both
preserved and unpreserved errors, a two-stage process of evaluation should be
followed.143 It is unclear how other appellate courts would approach the
problem.144
142
United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002) (citing United
States v. Rivera, 900 F.2d 1462, 1470 n.6 (10th Cir. 1990) (en banc)).
143
The Tenth Circuit has described this process as follows:
[W]hen there are both preserved and unpreserved errors,
cumulative-error analysis should proceed as follows:
First, the preserved errors should be considered as a
group under harmless-error review. If, cumulatively,
they are not harmless, reversal is required. If, however,
they are cumulatively harmless, the court should consider
(continued…)
87
For now, however, we need not grapple with the enigmas of the cumulative
error doctrine. Our assessment of the strength of the government‟s case and the
innocuousness (as we have discussed) of the few errors we have found or assumed
(continued…)
whether those preserved errors, when considered in
conjunction with the unpreserved errors, are sufficient to
overcome the hurdles necessary to establish plain error.
In other words, the prejudice from the unpreserved error
is examined in light of any preserved error that may have
occurred. For example, the defendant may not be able to
establish prejudice from the cumulation of all the
unpreserved errors, but factoring in the preserved errors
may be enough for the defendant to satisfy his burden of
showing prejudice. If so, the fourth prong of plain-error
review must then be examined.
United States v. Caraway, 534 F.3d 1290, 1302 (10th Cir. 2008).
144
See, e.g., United States v. Warman, 578 F.3d 320, 349 n.4 (6th Cir. 2009)
(finding it unnecessary to decide whether to consider harmless and plain errors
“together or separately”); United States v. Baker, 432 F.3d 1189, 1224 (11th Cir.
2005) (stating that “because the defendants did not preserve any of their
constitutional evidentiary claims, we review the aggregate effect of the district
court‟s constitutional and non-constitutional errors under the Kotteakos standard
for each defendant”); United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.
2004) (“To the extent that we have found that any claimed error of the district
court was harmless, or that claimed error did not rise to the level of plain error, we
conclude that the cumulative effect of such claimed errors is also harmless because
it is more probable than not that, taken together, they did not materially affect the
verdict.”). The Fifth Circuit has declared that cumulative error of any kind
“justifies reversal only when errors „so fatally infect the trial that they violated the
trial‟s fundamental fairness.‟” United States v. Delgado, 672 F.3d 320, 344 (5th
Cir. 2012) (en banc) (citing United States v. Fields, 483 F.3d 313, 362 (5th Cir.
2007)).
88
arguendo convinces us that, even in combination, and even applying a Chapman
standard across the board, there is no reasonable possibility the errors affected the
outcome of appellants‟ trial.145
III. Conclusion
For the foregoing reasons, we affirm appellants‟ convictions and the
judgment of the Superior Court.
So ordered.
145
In this respect, we may echo a passage from an opinion of the First
Circuit:
The cumulative error doctrine is inapposite here. While
we have uncovered a few benign bevues . . . the errors
were not portentous; they were few and far between; they
possessed no special symbiotic effect; they occurred in
the course of a two-month trial; and the government‟s
case was very strong. Consequently, the errors, in the
aggregate, do not come close to achieving the critical
mass necessary to cast a shadow upon the integrity of the
verdict.
Considering the trial‟s length, complexity, and hard-
fought nature, the [trial] court‟s handling of it evokes our
admiration. Appellants‟ focus on cumulative error does
not change the picture.
United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993).
Harrell E. Hagans, Brion X. Arrington, Warren N. Allen and Gary A. Leaks v. United States
Court: District of Columbia Court of Appeals
Date filed: 2014-06-05
Citations: 96 A.3d 1
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