Tawanda Sheffield, Steven D. Lewis, and Allen Butler v. United States

Notice: This opinion is subject to formal revision before publication in the
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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 11-CF-1145, 11-CF-1284, 11-CF-1644, & 12-CO-40

TAWANDA SHEFFIELD, STEVEN D. LEWIS, and ALLEN BUTLER, APPELLANTS,

v.

UNITED STATES, APPELLEE.

Appeals from the Superior Court
of the District of Columbia
(CF1-24022-09, CF1-18224-09, & CF1-28939-08)

(Hon. William M. Jackson, Trial Judge)

(Argued June 5, 2014 Decided March 12, 2015)

Michael L. Spekter for appellant Tawanda Sheffield.

Sydney J. Hoffmann for appellant Steven D. Lewis.

Thomas T. Heslep for appellant Allen Butler.

David P. Saybolt, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello,
and Kevin Flynn, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and
NEBEKER, Senior Judge.

NEBEKER, Senior Judge: In this consolidated appeal, appellants Allen Butler

and Steven D. Lewis appeal from their convictions for the lesser-included offense
 2

of second-degree murder while armed (D.C. Code § 22-2403, -4502) and various

accompanying weapon convictions. Appellant Tawanda Sheffield also appeals her

convictions for two counts of obstruction of justice (D.C. Code § 22-722 (a)(6))

and one count of perjury (D.C. Code § 22-2402 (a)(1)). Appellants raise ten issues

on appeal, asserting violations of their Fourth Amendment rights, Miranda rights,

and confrontation rights, and also asserting, among other claims, Brady violations,

improper rebuttal testimony, a prejudicial jury demonstration, and insufficient

evidence to support the various convictions. We have limited our consideration to

the stronger issues presented, and any arguments not directly addressed are deemed

to not warrant such treatment, especially not reversal of any convictions on this

record on appeal. For the reasons stated below, we affirm in part and remand for

vacatur of one of Sheffield’s obstruction of justice convictions and adjustment of

Sheffield’s sentence as may be necessary.

I. Factual Overview

A. The Murder and Bloody Pants Evidence

On December 11, 2008, around 8:00 a.m., in the District of Columbia,

Butler and Lewis forcefully entered the home of Franklin Johnson, a known drug
 3

dealer, in an attempted robbery. The home, a short drive away from Prince

George’s County Hospital, was occupied by Johnson; the sister of Johnson’s

girlfriend, Donna Galloway; Johnson’s one-year-old child; and two other children,

J.B. (age five), and L.B. (age six). Butler and Lewis, wearing black masks

covering all but their eyes, forced their way into the home. Once inside, the men

began shooting, killing Johnson and wounding J.B. Butler was also shot in his leg

during the encounter. Forensic analysis revealed that Johnson was shot ten times

at close range, and the bullets recovered were consistent with having been fired by

two guns. Butler and Lewis fled the scene in a burgundy mini-van with Georgia

tags.

At 8:37 a.m., Butler was admitted to Prince George’s County Hospital for

treatment of a gunshot wound to his leg. During the course of treatment, the

Hospital staff removed his pants and placed them in a hospital biohazard bag by

Butler’s bed. Pursuant to Maryland law, see Md. Code Ann., Health–Gen.

§ 20-703, the Hospital staff contacted the Prince George’s County Police

Department (PGPD) to report the “walk-in shooting victim” and two PGPD

detectives responded to the Hospital to investigate the shooting. During the

investigation, Butler presented different accounts of how he had been shot, first

claiming to be a victim of a robbery and then that he had been shot by his friend’s
 4

boyfriend. As a result, the investigation was transferred back and forth between

the first PGPD detectives to respond and the PGPD robbery suppression team.

PGPD investigators ultimately asked Butler to join them in canvassing the

area of the alleged crime. While Butler was in the process of being discharged,

PGPD Detective Gurry retrieved the bag of clothes by Butler’s bed, walked to the

car, and placed the bag in the trunk of the car. Detective Gurry then drove to the

entrance of the Hospital and Detective Pettus came out pushing Butler in a

wheelchair. Although Butler claims that he twice asked for his clothes back, the

trial court did not credit this testimony.1 For over one and one-half hours the

detectives canvassed the area of Butler’s alleged encounter, but Butler was not able

to direct the detectives to the scene of the alleged shooting. Finally, the detectives

drove Butler to the PGPD District III station, where he was picked up by

Lavangela Smith, the woman who had rented the burgundy mini-van used in the

get-away and with whom Butler lived and had an intimate relationship. PGPD

detectives logged Butler’s clothes into PGPD property, where they remained until

the following day when they were released to the homicide detectives from the

Metropolitan Police Department (MPD) who were investigating the D.C.

1
The trial court’s finding regarding Butler’s testimony is important to our
discussion, infra, of the detectives’ lawful access to Butler’s clothing with regard
to the plain view doctrine.
 5

murder. On December 14, 2008, Butler was arrested, pursuant to a warrant, in

connection with the murder of Johnson. Later, in 2009, DNA testing of Butler’s

pants revealed the presence of Butler’s blood and Johnson’s blood. On February

12, 2009, Lewis was also arrested.

B. Obstruction of Justice and Perjury Convictions

There was evidence that Butler had asked appellant Sheffield to provide an

alibi. On December 11, at 12:45 a.m. there were two calls between Butler and

Sheffield. Then, at 4:38 p.m. Sheffield texted appellant Butler’s cousin, Tarik

Butler, “I guess use me but its ok I’m a soldier.” Later that night there was a third

call between appellant Butler and Sheffield. Additionally, Damon White, a

government jail house informant, testified that Butler told him that he had spoken

with two sisters, appellant Sheffield and Keisha Sheffield, who were going to

testify before the grand jury on his behalf. Keisha Sheffield later testified before

the grand jury that Butler had asked her and her sister to provide an alibi by

testifying that they all were at a club together at the time of the murder.

On December 13, 2008, MPD detectives contacted appellant Sheffield and

asked her to come to their headquarters for an interview. Sheffield voluntarily
 6

provided a videotaped statement in which she asserted that the night before the

murder she had driven Butler to her home in Riverdale, Maryland around 11:45

p.m., and that Butler had remained with her until he left the next morning, around

9:30 a.m. On October 15, 2009, Sheffield repeated this assertion before a grand

jury, maintaining this account despite being presented with evidence establishing

that at 8:37 a.m. on December 11, 2008, Butler was at Prince George’s County

Hospital being treated for his gunshot wound.

C. Brady Disclosures and Young Rebuttal

At trial Butler introduced a stipulation explaining that on December 11,

2008, six-year-old L.B.—an eyewitness to Johnson’s shooting—told police that he

recognized one of the assailants as “Gangsta,” whom he had previously seen with

the decedent in the Parkwood area, but that this information was not disclosed to

the defense until April 8, 2011. The stipulation also stated that L.B.’s description

of Gangsta was disclosed on April 21, 2011, and that L.B.’s videotaped statement

was disclosed on April 28, 2011. On June 3, 2011, after trial had begun, the

government notified the defense that police had discovered a man named Gary

Young, Jr., who went by the nickname “Gangsta” and was an associate of Johnson

at the time of his death. The government called Young and, with the court’s
 7

permission, asked him to put on the black ski mask recovered from Lewis and

stand next to a redacted photo of Lewis wearing the black mask, to show that the

two men looked similar and that L.B. could easily have confused one man for the

other.

II. Analysis

A. Butler’s Motion to Suppress the Clothing, the DNA Results, and His
Statements to Police

Butler argues that we should vacate his conviction for the lesser-included

offense of second-degree murder while armed2 and various accompanying weapon

convictions because the trial court erred by failing to suppress (1) his seized

clothing, (2) the forensic test results showing Johnson’s blood on his pants, and (3)

his statements to police. The trial court concluded that the “seizure [fell] within

the meaning of the Fourth Amendment,” but that it was reasonable under the plain

view exception to the warrant requirement or, alternatively, that Butler consented

2
We find no merit to Butler’s argument that it was error to instruct the jury
on second-degree murder as a lesser-included offense of felony murder while
armed because the jury could reasonably acquit Butler of felony murder by finding
that he did not commit the underlying burglary felony, which is consistent with
Butler’s defense theory that he was at Johnson’s home simply to buy drugs. There
was sufficient evidence from which the jury could find that Butler formed the
intent to kill on impulse while in Johnson’s home.
 8

to the search by falsely claiming to be a gunshot victim. Additionally, the trial

court held that once the police lawfully had the pants in their possession, they had

a right to transfer the pants to D.C. police and conduct forensic testing without a

warrant. Finally, the trial court found that Butler’s statements were a “voluntary”

and “intelligent waiver of his Miranda rights” because Butler had “initiated

statements to the officers and [ ] was not prompted in any way.”

Our review of “a trial court’s ruling on a motion to suppress tangible

evidence requires that the facts and all reasonable inferences therefrom must be

viewed in favor of sustaining the trial court’s ruling.” Holt v. United States, 675

A.2d 474, 478 (D.C. 1996) (internal citation and quotation marks omitted). The

trial court’s determination of probable cause is a conclusion of law that we review

de novo. Prince v. United States, 825 A.2d 928, 931 (D.C. 2003). We review the

trial court’s finding that Butler initiated discussion with police for clear error.

See Morris v. United States, 728 A.2d 1210, 1219 (D.C. 1999).

1. The Seizure of Butler’s Clothing

The facts surrounding this issue present two ways of resolving it. One is that

the Fourth Amendment is not implicated due to the fact that the PGPD viewed
 9

Butler not as a criminal suspect, but a victim of a shooting. If the Amendment is

not implicated, there is no occasion to deal with the Amendment’s requirement that

a warrant based on probable cause was necessary. The other way to resolve the

issue is to hold or assume that the Amendment is implicated, and that a warrant

was either required or that an exception to the requirement applies. Either way, the

result would be the same: the constable did not blunder and the trial judge did not

err in denying the motion to suppress. To assume that the Amendment is

implicated leads to a conundrum: what could be the probable cause for a warrant,

as Butler was not then a criminal suspect for any offense, including a false

report. Thus, no warrant could issue and the pants remain corroborative evidence

of the reported robbery and assault. It is unnecessary even to consider, as the trial

judge did, that Butler’s report amounted to a waiver because the elements of a

waiver are not present. Nor, as we will see, would a warrant be necessary when

the PGPD transferred the pants to MPD.

Assuming that the Fourth Amendment did apply, the trial court did not err in

admitting the evidence. In Holt, supra, we upheld investigators’ initial search of

the appellant’s clothing in a public hospital and the subsequent seizure of the

clothing incident to his lawful arrest. 675 A.2d at479-81. Just as in this case, the

appellant in Holt was voluntarily admitted to a public hospital with a gunshot
 10

wound, during treatment his clothing was removed and placed in a bag in his room,

and there was no indication that he asked to secure his clothes in a locker. Id. at

480. The police inspected Holt’s clothing to determine that it was consistent with a

lookout description call to police, and subsequently seized the clothing incident to

arrest. Id. at 477-78. We held that the search was lawful as the appellant “had no

reasonable expectation of privacy in the appearance of his publicly worn clothing”

under the circumstances. Id. at 480-81 (quoting Katz v. United States, 389 U.S.

347, 361 (1967) (alteration in original) (“‘[W]hat a person knowingly exposes to

the public . . . is not a subject of Fourth Amendment protection’ because the

exposure withdraws any expectation of privacy.”)). Other courts have upheld

similar searches, finding that there is no reasonable expectation of privacy in

personal effects in an emergency room. See, e.g., People v. Sutherland, 415

N.E.2d 1267, 1271 (Ill. App. Ct. 1980); State v. Smith, 559 P.2d 970, 976 (Wash.

1977) (en banc); Wagner v. Hedrick, 383 S.E.2d 286, 291-92 (W. Va. 1989).

The reasoning in Holt alone, however, will not suffice to uphold the officers’

collection of Butler’s clothing in this case because the Fourth Amendment protects

against unreasonable seizures of property in which the individual has a possessory

interest, even if a privacy or liberty interest is not at issue. For the purposes of the

Fourth Amendment, a “‘seizure’ of property occurs when there is some meaningful
 11

interference with an individual’s possessory interests in that property.” United

States v. Jacobsen, 466 U.S. 109, 113 (1984). Although we have previously held

that a party seeking to suppress evidence unlawfully seized “must first prove that

he had a legitimate expectation of privacy in . . . the item seized,” In re B.K.C., 413

A.2d 894, 899 (D.C. 1980), subsequent United States Supreme Court decisions

have contrarily held that the Fourth Amendment protects against unreasonable

seizures of property even when a privacy or liberty interest is not at issue, see, e.g.,

United States v. Jones, 132 S. Ct. 945, 952 (2012) (“[T]he Katz reasonable-

expectation-of-privacy test has been added to, not substituted for, the common-law

trespassory test.”); United States v. Flores-Montano, 541 U.S. 149, 154-55 (2004);

United States v. Padilla, 508 U.S. 77, 80-81 (1993); Soldal v. Cook Cnty., Ill.,

506 U.S. 56, 65-66 (1992).

In Soldal, supra, the Supreme Court noted that none “of the Court’s prior

cases supports the view that the Fourth Amendment protects against unreasonable

seizures of property only where privacy or liberty is also implicated,” explaining

that “the absence of a privacy interest notwithstanding, ‘[a] seizure of the article

. . . would obviously invade the owner’s possessory interest.’” 506 U.S. at 65-66

(alterations in original) (quoting Horton v. California, 496 U.S. 128, 134 (1990));

see also Flores-Montano, supra, 541 U.S. at 154 (“[T]he Fourth Amendment
 12

‘protects property as well as privacy.’”) (quoting Soldal, supra, 506 U.S. at 62);

United States v. Jones, 625 F.3d 766, 770 (D.C. Cir. 2010) (same); United States v.

Davis, 657 F. Supp. 2d 630, 636 (D. Md. 2009) (“[T]o challenge a seizure, a

defendant need only establish that the seizure interfered with his constitutionally

protected possessory interests. The infringement of privacy rights, while often a

precursor to a seizure of property, is not necessary to such challenge.”), aff’d, 690

F.3d 226 (4th Cir. 2012); Jones v. State, 648 So. 2d 669, 675 (Fla. 1994) ( “[E]ven

if we were to find that Jones’[s] privacy interests were in no way compromised,

there clearly was a meaningful interference with his constitutionally protected

possessory rights when his effects were seized without a warrant.”); People v.

Hayes, 584 N.Y.S.2d 1001, 1002 (N.Y. Sup. Ct. 1992) (concluding that the

defendant’s property rights were violated when his belongings were removed from

a hospital without a warrant). Therefore, despite our holding in Holt that an

individual entering a public hospital with a gunshot wound has no reasonable

expectation of privacy in their appearance, we recognize Butler’s separate

possessory interest in his clothes and address for the first time whether under these

circumstances a seizure of such property violates the Fourth Amendment.

It is undisputed that Butler’s clothing was removed from his hospital room

without a warrant. Warrantless seizures are “subject to only a few specifically
 13

established and well-delineated exceptions.”3 Katz, supra, 389 U.S. at 357; see

also, e.g., Martin v. United States, 952 A.2d 181, 186 (D.C. 2008). However, the

“plain view” exception to the warrant requirement “permits law enforcement to

seize objects if (1) the officer is lawfully present in the location where the

observation is made[;] (2) the officer has lawful access to the item[;] and

(3) the object’s incriminating nature is immediately apparent,” Davis, supra,

657 F. Supp. 2d at 637; see also Horton, supra, 496 U.S. at 136-37;

Porter v. United States, 37 A.3d 251, 256-57 (D.C. 2012), or it is clear to the law

enforcement officer that the object is or contains evidence of a crime, United States

v. Pindell, 336 F.3d 1049, 1055 (D.C. Cir. 2003). The discovery of evidence in

plain view need not be inadvertent. Horton, supra, 496 U.S. at 130. In the instant

case, these plain view criteria are satisfied, even though the incriminating nature of

the bloody pants was not as immediately apparent as their evidentiary value in

relation to Butler’s original claim that he was a victim.

First, the police were lawfully in Butler’s hospital room on official business

to investigate a reported shooting because they were contacted by the hospital staff

to report the “walk-in shooting victim” and later returned to investigate the crime

3
The trial court relied on a theory of plain view and alternatively implied
consent to justify the seizure. We affirm without relying on the ground of consent.
 14

reported by Butler. Second, the officers had lawful access to Butler’s clothing

because, as we held in Holt, supra, there is no expectation of privacy in clothing in

a public hospital where one’s appearance upon arrival is public. 675 A.2d at 48.

The officers, therefore, did not invade Butler’s privacy interest by noting Butler’s

bloody clothes in the biohazard bag by his bed.

Finally, the importance of Butler’s clothing was immediately apparent

because the officers had “probable cause to believe that [it] contained evidence of a

crime.” Pindell, supra, 336 F.3d at 1055. “[W]hen a container is not closed, or

transparent, or when its distinctive configuration proclaims its contents, the

container supports no reasonable expectation of privacy and the contents can be

said to be in plain view.” Davis, supra, 657 F. Supp. 2d at 638 (internal citation

and quotation marks omitted). Additionally, “[t]he circumstances under which an

officer finds the container may add to the apparent nature of its contents.” Id.

Detective Gurry testified that he regularly responded to gunshot wound calls at

hospitals and that it was standard practice to ask for the hospital bag containing the

victim’s property. The detectives knew that Butler had a gunshot wound in his leg,

an area of the body that is usually covered by clothing, and that he was claiming to

be the victim of a shooting. They photographed Butler’s bleeding wound, saw the

red biohazard bag containing his bloody clothing by his bed, and were told by the
 15

nurse and Butler that the bag contained Butler’s clothes. It was readily apparent

that the bloody clothes were evidence of a crime, regardless of whether Butler was

a victim or a suspect. We conclude, therefore, that if Butler’s pants were seized

while he was a patient at Prince George’s County Hospital, the seizure was lawful

pursuant to the plain view exception to the warrant requirement.4

2. The Search Yielding Johnson’s DNA

The extraction of blood from Butler’s clothing and the subsequent forensic

testing of the blood are both searches subject to scrutiny under the Fourth

Amendment. The Supreme Court has held in several instances that “the

government’s use of scientific technology to reveal information that is not visible

to the naked eye or routinely exposed to the public constitutes a search.”

See Davis, supra, 657 F. Supp. 2d at 644 (listing the Court’s technology cases).

4
Because the assumed seizure was lawful, there is no merit to Butler’s
assertion that transfer of his clothes from PGPD to MPD violated his Fourth
Amendment rights. To hold otherwise would nonsensically submit lawfully
obtained evidence to redundant Fourth Amendment assessments at each point of
transfer between governmental units. As the Ninth Circuit has explained, a
warrant requirement for transfers would cause “complex procedural barriers to
cooperation between state and federal law enforcement authorities” and is
unnecessary because “examination by another law enforcement agency is not a
sufficiently distinct intrusion into the defendants’ privacy to trigger the
requirements of the Fourth Amendment.” United States v. Romero, 585 F.2d 391,
396 (9th Cir. 1978).
 16

However, the Court has held more specifically that “clothing or other belongings

may be seized upon arrival of the accused at the place of detention and later

subjected to laboratory analysis,” the results of which are admissible at trial.

United States v. Edwards, 415 U.S. 800, 804 (1974). In upholding the

reasonableness of these types of searches, the Court explained that “it is difficult to

perceive what is unreasonable about the police’s examining and holding as

evidence those personal effects of the accused that they already have in their lawful

custody.” Id. at 806.

The D.C. Circuit, in a pre-1971 case binding on this court, see M.A.P.

v. Ryan, 285 A.2d 310, 312 (D.C. 1971), similarly affirmed a warrantless search

and seizure incident to arrest where police seized defendant’s clothing and

conducted forensic testing of the clothing at the Federal Bureau of Investigation to

reveal paint chips and other debris from the crime scene, see Robinson v. United

States, 283 F.2d 508, 509-10 (D.C. Cir. 1960). The court explained that the search

and seizure were “proper, since probable cause [of guilt] had already appeared, and

appellants were validly under arrest.” Id. at 509. Although Edwards and Robinson

were decided in the context of a search and seizure incident to a lawful arrest, the

same rationale applies with equal force in this case of a plain-view seizure in
 17

which Butler’s arrest nonetheless preceded the testing of his assumed lawfully

seized clothes.5

The additional privacy considerations that usually arise in cases involving

DNA testing are not present in this case. The blood samples were collected from

Butler’s lawfully seized pants and therefore did not require any bodily intrusion.

This distinguishes the case from those in which DNA collection requires “the type

of ‘severe, though brief, intrusion upon cherished personal security’ that is subject

to constitutional scrutiny.” Cupp v. Murphy, 412 U.S. 291, 295 (1973) (quoting

Terry v. Ohio, 392 U.S. 1, 24-25 (1968)) (holding that scraping dried blood from

underneath the suspect’s fingernails constituted such a search). Additionally,

while DNA results identifying both Butler and Johnson were admitted into

evidence, Butler argues that it was the tests yielding DNA from Johnson that were

the “crucial link in obtaining the conviction.” Having established that Butler’s

clothing was lawfully seized, it is absurd that Butler would have any legitimate

expectation of privacy in the decedent’s blood on his pants that would warrant

suppression of the victim’s DNA at trial. As to Butler’s DNA evidence, as a

detainee his expectation of privacy “necessarily [is] of a diminished scope” and the

5
Butler was arrested pursuant to an arrest warrant three days after PGPD
seized his clothing and well before any testing of his pants commenced in 2009.
 18

Supreme Court has upheld the analysis of an arrestee’s DNA as a form of

identification that is reasonable under the Fourth Amendment. Maryland v. King,

133 S. Ct. 1958, 1978 (2013) (quoting Bell v. Wolfish, 441 U.S. 520, 557 (1979)).6

Courts most often decide Fourth Amendment questions by a traditional

method of matching the facts of previously reported decisions with facts of the

pending case. This is true whether the pending decision favors the defendant or the

government. Such an approach, like a river course or electricity, is one of taking

the path of least resistance. While case matching may be helpful in deciding

reasonableness of police conduct, when we have so many published decisions

going both ways on similar questions of reasonableness, it seems that judges often

decide which ones to follow based on subjective, rather than objective,

reasonableness. But we cannot avoid recognizing that reasonableness is the

overarching and underlying principle for these decisions. In this opinion we do a

fair amount of case matching, but on these unique facts (feigning victimhood,

discovery of its falsity, plain view of the tell-tale pants, and convergence of inter-

police department investigations) we find nothing unreasonable in the police

6
No claim is presented here that the DNA testing went to matters other than
identification so as to intrude upon Butler’s privacy interest in information about
medical conditions, hidden traits, or similar information that can be gleaned from
DNA.
 19

reaction to any or all of what was done. In sum, the search and assumed seizure of

Butler’s clothing did not violate his Fourth Amendment rights.

3. Butler’s Statements to Police

Butler argues that it was error for the trial court to deny his motion to

suppress the statements he made to the officers who drove him to be processed at

the central cellblock, alleging that he was in medical distress and that he should

have been re-advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966),

pursuant to Edwards v. Arizona, 451 U.S. 477 (1981). The prophylactic rule of

Edwards, supra, does not apply when “the accused himself initiates further

communication, exchanges, or conversations with the police.” 451 U.S. at 485; see

also Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) (“[T]he Miranda

safeguards come into play whenever a person in custody is subjected to either

express questioning or its functional equivalent”). After considering all of the

evidence, the trial court found that Butler’s statements were a “voluntary” and

“intelligent waiver of his Miranda rights” because he was “clearheaded and did not

appear to be under any type of distress or disoriented,” and that there was no

coercive conduct or even interrogation by police during the drive. In fact, the court

found that Butler had “initiated statements to the officers, and [ ] was not prompted
 20

in any way,” when he told the officer “there were some things he wanted to get off

his chest.” On the facts found by the trial court, which Butler does not allege were

clearly erroneous, we find that Butler’s claim lacks merit and we affirm the trial

court’s denial of the motion to suppress. See Bean v. United States, 17 A.3d 635,

638-39 (D.C. 2011) (“‘[A]ny factual finding anchored in credibility assessments

derived from personal observations of the witnesses is beyond appellate reversal

unless those factual findings are clearly erroneous.’”) (quoting Stroman v. United

States, 878 A.2d 1241, 1244 (D.C. 2005)).

B. Butler’s Claim that Dr. Pierre-Louis’s Expert Testimony Violated His
Confrontation Rights

Butler claims for the first time on appeal that his confrontation rights were

violated by the expert testimony of Dr. Pierre-Louis, the District’s Chief Medical

Examiner, arguing that she did not perform the autopsy herself and some of her

expert opinions were derived from reading the autopsy report and notes. “When a

defendant fails to object to the admission of certain testimony, and then further

develops that testimony on cross-examination, he will not be heard to argue on

appeal that its admission constituted reversible error.” Sobin v. District of

Columbia, 494 A.2d 1272, 1275 (D.C. 1985). Dr. Pierre-Louis was qualified as an

expert in the field of forensic pathology and she testified that she had reviewed the
 21

autopsy file, which was not offered into evidence, and would be offering her own

independent conclusions. Butler’s counsel stated that he did not object to the

expert using the autopsy report and drawing her own conclusions and did not raise

any hearsay objections to particular testimony or confrontation objections. In fact,

during cross-examination Butler’s counsel elicited the expert’s testimony on the

number of wounds and bullets recovered from Johnson’s body, evidence of soot

and stippling indicating shots fired at close range, and he relied on this testimony

during closing argument. Butler cannot contest Dr. Pierre-Louis’s expert

testimony, when he failed to object, further developed it on cross-examination, and

relied on it during closing arguments. Id. In any case, Butler cannot demonstrate

whether Dr. Pierre-Louis relied on the autopsy report or autopsy photographs, and

neither this court nor the Supreme Court has decided whether autopsy reports are

testimonial; Butler therefore cannot show plain error. See Euceda v. United States,

66 A.3d 994, 1012 (D.C. 2013).

C. Butler and Lewis’s Asserted Brady Violations

Butler and Lewis claim that the trial court abused its discretion by denying

their motions for mistrial based on two asserted violations of Brady v. Maryland,

373 U.S. 83 (1963). We reverse a trial court’s denial of motion for mistrial “only
 22

if it appears irrational, unreasonable, or so extreme that the failure to reverse would

result in a miscarriage of justice.” Coleman v. United States, 779 A.2d 297, 302

(D.C. 2001) (internal citation and quotation marks omitted). Whether an appellant

has established a Brady violation is a mixed question of fact and law, and we

therefore review the trial court’s legal conclusions de novo and its findings of fact

for clear error. Miller v. United States, 14 A.3d 1094, 1120 (D.C. 2011) (quoting

United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993)).

As to the first asserted Brady violation regarding L.B.’s identification of one

of the shooters as Gangsta, the government concedes that the identification was

inadvertently not disclosed until about six weeks before trial. Butler and Lewis,

however, did not move for a continuance and it was not until June 2, 2011—during

the second week of trial—that they moved for a mistrial on the ground that they

had searched for Gangsta with no success. The trial court denied the motion,

finding that the late disclosure could have been remedied by a continuance to

permit further investigation, and ordered the government to identify the steps it had

taken to identify Gangsta and further steps it could take.

The trial court did not abuse its discretion by denying the motion given

Butler’s and Lewis’s strategic decisions to not request a continuance before trial
 23

and their failure to establish any resulting prejudice. During its opening statement,

the government did not make any mention of Gangsta and it told the jury that they

would not hear from any eyewitness to the murder who could identify the shooters.

By contrast, Butler’s and Lewis’s opening statements, defense theories, and closing

arguments made use of the Brady information by refuting the government’s

assertion that there were no eyewitnesses who could identify the shooters and

alleging police bias.

Butler’s and Lewis’s second asserted Brady violation is the mid-trial

discovery that Gangsta was actually Young. On June 3, 2011, the government told

Butler and Lewis that their lead detective had discovered (the night before) a man

named Gary Young, Jr., who went by the nickname Gangsta, was an associate of

Johnson at the time of his death, and looked similar to the description of Gangsta.

Butler and Lewis renewed their motions for a mistrial, which the court denied

because trial counsel were extremely experienced and had chosen not to raise the

Gangsta issue until trial had started, the available remedies were limited, and

Young and L.B. were available for interview and to testify. We affirm the trial

court’s denial of Butler’s and Lewis’s renewed motions for a mistrial because the

court’s findings are not plainly wrong or without factual support, and furthermore,

because the government’s immediate disclosure of the information upon discovery
 24

mid-trial does not constitute the “suppression” required for a Brady violation.

Miller, supra, 14 A.3d at 1107 (quoting Brady, supra, 373 U.S. at 87).

D. Lewis’s Claims of Improper Rebuttal Testimony and Prejudicial Jury
Demonstration

Lewis claims that the trial court committed plain error by allowing Young’s

rebuttal testimony and permitting the government to conduct the ski mask

demonstration for the jury. “Rebuttal evidence refutes, contradicts, impeaches, or

disproves an adversary’s evidence.” Beynum v. United States, 480 A.2d 698, 704

(D.C. 1984). The government called Young in rebuttal to Butler’s and Lewis’s use

of L.B.’s testimony that the shooter was or looked like Gangsta and L.B.’s

December 2008 statement that Gangsta was the shooter. Young testified that

others had used the nickname “Gangsta” to refer to him, but that he was so close to

Johnson that he could not be the killer, thereby contradicting L.B.’s December

2008 statement to police and refuting Butler’s and Lewis’s suggestions that Young

was not Gangsta. The trial court, therefore, did not commit plain error in allowing

this rebuttal testimony. Given Lewis’s failure to object, the strong evidence

against him, and the equivocal nature of both L.B.’s and Young’s testimony, we

are satisfied that the rebuttal testimony did not prejudice Lewis’s “substantial

rights” or “seriously affect . . . the fairness, integrity or public reputation” of the
 25

proceedings. United States v. Olano, 507 U.S. 725, 732 (1993) (internal citation

and quotation marks omitted).

Additionally, during Young’s rebuttal testimony, the court permitted Young

to conduct a demonstration for the jury over Lewis’s objection. The government

asked Young to put on a black ski mask recovered from Lewis and stand next to a

cropped photo depicting Lewis alone, also wearing a mask. We review the trial

court’s admission of demonstrative evidence for abuse of discretion. See Lloyd v.

United States, 64 A.3d 405, 409 (D.C. 2013). “The court may permit the

introduction or use of a demonstrative aid if it is sufficiently explanatory or

illustrative of relevant testimony in the case to be of potential help to the trier of

fact.” Id. (internal citation and quotation marks omitted). However, otherwise

relevant evidence “‘may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.’” Johnson v. United States, 683

A.2d 1087, 1099 (D.C. 1996) (quoting Fed. R. Evid. 403). Here, the ski mask

demonstration was illustrative of L.B.’s relevant testimony that the shooter he saw

in a mask looked like Gangsta. The demonstration was more probative than it was

prejudicial because it could help the jury determine whether Lewis, around the

time of the shooting, met L.B.’s description of the shooter as someone who looked
 26

like Gangsta. The trial court, therefore, did not abuse its discretion by permitting

the demonstration.

E. Lewis’s and Sheffield’s Claims of Insufficient Evidence to Support Their
Convictions

Both Lewis and Sheffield challenge the sufficiency of the evidence to

support their convictions. The standard for overturning convictions for evidentiary

insufficiency is a demanding one, under which “appellants face a difficult burden.”

Bolden v. United States, 835 A.2d 532, 534 (D.C. 2003) (per curiam). We “review

the evidence in the light most favorable to the government, giving full play to the

right of the jury to determine credibility, weigh the evidence, and draw justifiable

inferences of fact, and making no distinction between direct and circumstantial

evidence.” Curry v. United States, 520 A.2d 255, 263 (D.C. 1987).

1. Lewis’s Claim of Insufficient Evidence

Lewis challenges the sufficiency of the evidence to support his convictions

of second-degree murder while armed, assault with intent to kill while armed, and

the related weapons offenses, arguing that there was not enough evidence to

identify him as one of the two shooters. Although no eyewitness identified Lewis
 27

as the second shooter, the government introduced sufficient evidence from which

the jury could find him guilty. This evidence includes Lewis’s discussion on the

day of the murder with his neighbors Kenneth Williams and Lisa Thompson

regarding a trip “uptown” where his companion had been shot and how he had

taken the companion to the hospital. Additionally, the burned burgundy van, used

to get away from the murder, was found near Lewis’s apartment complex. Call

records also show communications between Butler, Lewis, and Smith on the day of

the murder, and Smith testified about Butler’s call from Lewis’s cell phone the

morning of the murder. Furthermore, cell tower location records suggest that

Butler and Lewis were together in the late-night hours leading up to the murder

and while fleeing away from the murder along Interstate 295 to Prince George’s

County Hospital. Finally, White testified that Lewis admitted to him that Lewis

had been on the scene of the shooting, another person there had left his DNA, and

Lewis had taken the other person to the hospital. Given this evidence and the

additional circumstantial evidence presented by the government, the jury had

sufficient evidence from which to conclude that Lewis was one of the shooters, and

therefore we find no merit to Lewis’s claim.
 28

2. Sheffield’s Claim of Insufficient Evidence

Sheffield contends that there was insufficient evidence to support her perjury

conviction and the obstruction of justice conviction arising from her grand jury

testimony. These charges arose from Sheffield’s testimony before the grand jury

in which she continuously affirmed that she and Butler were in constant company

from about 12:20 a.m. until 9:30 a.m. on the day of the murder. To prove perjury,

the government was required to establish that Sheffield “made a false statement of

material fact under oath with knowledge of its falsity.” Gaffney v. United States,

980 A.2d 1190, 1193 (D.C. 2009) (citing D.C. Code § 22-2402). Sheffield claims

that her statements were not false or made with intent to obstruct the investigation

because she simply testified that she told investigators that when Butler left that

morning she looked at her cable box and it said it was 9:30 a.m., without

commenting on the accuracy of the cable box. However, during the grand jury

proceedings, she repeatedly affirmed that Butler was with her until 9:30 a.m., at

times without qualification that this was simply the time on the cable box;

moreover, she did so despite being confronted with evidence that Butler had

arrived at Prince George’s County Hospital at 8:37 a.m. and cell phone and cell

tower evidence that at 9:30 a.m. Butler was in D.C. while she was in Riverdale,

Maryland. Sheffield’s repeated affirmations that Butler was with her until 9:30
 29

a.m., when she was aware that he was actually at the Hospital by 8:37 a.m.,

sufficiently establishes that she testified falsely about a material fact with

knowledge of the falsity.

To prove obstruction of justice the government was required to show that

Sheffield “(1) obstructed or impeded or endeavored to obstruct or impede the due

administration of justice in an official proceeding, and (2) did so with the intent to

undermine the integrity of the pending investigation.” Smith v. United States,

68 A.3d 729, 742 (D.C. 2013) (citing D.C. Code § 22-722 (a)(6)). “The intent

required for obstruction of justice often must be inferred from the context and

nature of the alleged criminal conduct.” Id. (internal citation and quotation marks

omitted). Sheffield’s consistently false grand jury testimony in the face of

uncontroverted evidence to the contrary and the prosecutor’s repeated warnings are

sufficient evidence that she intentionally “endeavored to obstruct or impede the

due administration of justice” in the proceedings against Butler. However, the

government concedes that Sheffield’s second obstruction of justice charge, based

on her statement to police on December 13, 2008, must be vacated because there

was not yet an “official proceeding,” which is a required element of the crime. For

this reason, we remand for vacatur of this obstruction of justice conviction and

adjustment of Sheffield’s sentence as may be necessary.
 30

Contrary to Sheffield’s claim, her convictions for obstruction of justice and

perjury do not merge under the test of Blockburger v. United States, 284 U.S. 299

(1932), because perjury, unlike obstruction of justice, does not require proof of an

official proceeding or intent to undermine the proceeding, but rather a knowing

false, material statement made under oath, compare D.C. Code 22-722 (a)(6), with

D.C. Code § 22-2402. Cf. Riley v. United States, 647 A.2d 1165, 1168 n.8

(D.C. 1994) (holding that obstruction of justice and subornation of perjury do not

merge). Additionally, the trial court did not commit plain error by joining

Sheffield’s indictments to those of Butler and Lewis for the underlying crimes

because her false alibi for Butler constituted the “same series of acts or transactions

constituting an offense or offenses.” Super. Ct. R. Crim. P. 8 (b); see also, e.g.,

Sams v. United States, 721 A.2d 945, 954 (D.C. 1998) (concluding that an

obstruction of justice count was “logically related” to the underlying substantive

charges against the appellant’s co-defendants). Nor was it plain error for the court

to decline to sever Sheffield’s case sua sponte. Sheffield failed to show “‘manifest

prejudice’” resulting from the joinder of her case with those of her co-defendants

where there was independent evidence of her guilt, and the jury was properly

instructed to consider each defendant’s guilt separately and render separate

verdicts. Sams, supra, 721 A.2d at 954 (quoting Elliott v. United States, 633 A.2d

27, 34-35 (D.C.1993)).
 31

III. Conclusion

Accordingly, for the reasons stated above, we affirm in part and remand for

vacatur of one of Sheffield’s obstruction of justice convictions and adjustment of

Sheffield’s sentence, as may be necessary.

So ordered.