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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CF-331
GARY C. DICKENS, APPELLANT,
V.
UNITED STATES, APPELLEE,
and
No. 14-CF-425
ANTWARN D. FENNER, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF3-9198-10 and CF1-9270-09)
(Hon. Jennifer M. Anderson, Trial Judge)
(Argued March 16, 2017 Decided July 20, 2017)
Jenifer Wicks for appellant Gary C. Dickens.
Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam,
Public Defender Service, was on the brief, for appellant Antwarn D. Fenner.
Stephen F. Rickard, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino,
2
Joycelyn Ballantine, and David Gorman, Assistant United States Attorneys, were
on the brief, for appellee.
Before GLICKMAN, FISHER, and THOMPSON, Associate Judges.
Opinion for the court by Associate Judge FISHER.
Separate statement of Associate Judge FISHER at page 31.
FISHER, Associate Judge: A jury convicted appellants Antwarn Fenner and
Gary Dickens of first-degree murder while armed1 and conspiracy to commit the
same.2 Mr. Fenner argues that the trial court committed reversible error when it
instructed the jury on the principles of aiding and abetting and when it struck a
small portion of his closing argument. Mr. Dickens argues that he should receive a
new trial under Super. Ct. Crim. R. 33 and the doctrine of Brady v. Maryland3 due
to the government‟s alleged failure to disclose a statement made by a witness
during the preparation of a presentence report. He also argues that we should
remand for further inquiry regarding a complaint he made about his counsel before
trial began. We affirm.
1
D.C. Code §§ 22-2101, -4502 (2012 Repl.).
2
D.C. Code § 22-1805a (2012 Repl.).
3
373 U.S. 83 (1963).
3
I. Factual and Procedural Background
On August 8, 2008, Stanley Daniels—the victim in this case—was sitting in
a Range Rover parked next to the intersection of Georgia Avenue and Newton
Place, N.W. Daniels had been the boyfriend of April Dickens, who had been
murdered by repeated stabbing a month earlier. Although appellant Dickens was
April‟s ex-husband, he and April had had sex the day before she died. Dickens
told the investigating detective that he was “100 percent sure” that Daniels had
killed April. The detective recovered Daniels‟ jeans and boots, which appeared to
have blood on them. Later DNA testing, completed after Daniels‟ death,
confirmed that the blood belonged to April.
The detective testified that appellant Dickens had been “upset” with the
length of time required to investigate his ex-wife‟s death and that he “was crying to
the point where I told him . . . don‟t do anything rash.” Witnesses had warned the
detective that Dickens had stated his intent to kill Daniels. Dickens also told his
nephew, Eddie Pitts, that he wanted to buy a gun to kill Daniels.
On the night of August 8, Eddie Pitts was with an acquaintance, Tyrone
Johnson, when he saw Daniels in the Range Rover. Pitts borrowed Mr. Johnson‟s
4
cell phone to make two calls. After the first call, Pitts asked Johnson if he had a
gun. Johnson replied that he did not. Pitts explained that “there was a guy across
the street . . . that did something to his folks[.]” During the second call, Johnson
overheard Pitts loudly and anxiously saying, “[W]here y‟all at? Hurry up.” The
record shows that two calls were placed from Johnson‟s phone to one of Dickens‟
residences around this time.
At likely the same approximate time, 4 a friend and relative of Dickens
stopped by the residence and, at Dickens‟ request, drove Fenner from the residence
to a carryout restaurant near Daniels‟ location. Dickens and Fenner were “like
brothers”; Fenner was Pitts‟ cousin. The friend testified that Fenner was wearing a
white t-shirt and jean shorts.
Dickens called Crystal Jackson, who was then his girlfriend, and hurriedly
asked her to look after the children. According to Ms. Jackson, Dickens explained
that Fenner had just been on the phone with Pitts, who had told Fenner that Daniels
was in the Range Rover.5 Ms. Jackson met Dickens on a side street near Georgia
4
The witness could not remember the exact date.
5
Pitts testified that he spoke with Dickens, not Fenner, during each of his
phone calls.
5
Avenue, where Dickens had driven with his niece and her friend. Ms. Jackson
picked up keys from Dickens and left. Dickens, Fenner, and Pitts were all near the
area where Daniels was sitting in the Range Rover.
At this point, the testimony of two witnesses differs somewhat.
Mr. Johnson testified that Fenner came up to him and Pitts. Pitts told Fenner that
Daniels was in the Range Rover. Fenner asked Pitts “which way could [Fenner] go
and where [Pitts] was going to pick him up . . . after [Fenner] was done.” Fenner
then asked where a nearby alley led, and he walked towards it. About five minutes
later, Fenner exited the alley, crossed the street, and fired several shots into the
driver‟s side of the Range Rover from a few feet away. Pitts had since left and
walked down another street. After the shooting, Fenner went back through the
alley from which he had come. Johnson testified that he did not see Dickens that
night.
Pitts testified that Dickens walked up to Johnson before the shooting and
then spoke with Johnson and Pitts. Dickens asked where Daniels was, and Pitts
pointed to the Range Rover. Pitts agreed to “go over on the corner and pick
[Fenner] up” after the shooting. Fenner arrived. Dickens crossed the street
6
towards the vehicle and identified Daniels by nodding his head. Pitts went to get
his car so he could pick up Fenner.
Steve Broido was driving on Georgia Avenue when he heard gunshots and
saw bright flashes. He told a 9-1-1 dispatcher that the shooter was wearing a white
shirt and blue jean shorts. Another witness, Juan Castillo, was standing about a
block away from the shooting. He testified that the shooter was wearing a light
gray shirt and dark jean shorts. He also remembered the shooter as having short,
“[a]lmost bald” hair, facial hair on his chin and jawbone area, and dark skin.
Police found Daniels in his Range Rover, dead from several gunshot
wounds. An expert in firearms and tool mark identification testified that the
evidence indicated that the same weapon had fired all of the shots.
After the shooting, Pitts picked up Fenner, who told him that Dickens was
still “up there.” Using cell phone records and maps created as part of his analysis,
an expert in radio frequency engineering later confirmed that Dickens‟ phone
transmitted several calls from the area during this time. Fenner also told Pitts that
he had shot Daniels, whose “brains [had flown] in the backseat of the car.” The
two men went to a strip club that was known to search customers at the door.
7
After they left the club, Fenner reached under Pitts‟ car seat and pulled up a gun,
which he concealed in the waistband of his pants. When they arrived at Pitts‟
home, Fenner hid the gun under a bush and left with his girlfriend.
When Ms. Jackson saw Dickens again later that night, he told her that he had
been on Georgia Avenue and had walked up to Daniels‟ car. Dickens also came to
Pitts‟ house the next day and bragged that he had told his children that he “was
going to get that dude that killed their mother.” At a cookout later that day, Jessie
Lawrence, a cousin of Dickens and Fenner, heard Fenner confess that he had shot
Daniels “numerous times,” including in the head.
Fenner, Dickens, and Pitts were all charged with first-degree murder while
armed and conspiracy to commit that offense. Fenner was also charged with
possession of a firearm during a crime of violence (“PFCV”). About a year before
the trial of Fenner and Dickens, Pitts pled guilty to one count of conspiracy to
commit murder. Fenner and Dickens chose to go to trial, where the government
called several witnesses, including Pitts.
After its case-in-chief, the government requested an aiding and abetting
instruction. Fenner‟s counsel argued that the instruction should apply only to
8
Dickens because “the evidence is so clearly and conclusively that it‟s my client
that‟s the principal and [that Dickens is] the aider and abettor.” The trial judge
decided to give a general aiding-and-abetting instruction that would apply to both
defendants because “nobody has testified that they . . . can identify the shooter,”
and a “reasonable juror could find . . . that even if Mr. Fenner was not the shooter,
he was an aider and abett[o]r” because “the murder was ongoing until they left the
scene.” The court noted the potential discrepancy between Johnson‟s identification
of Fenner and the testimony of Castillo, who had described a shooter with physical
characteristics that arguably better matched Dickens, who had darker skin than
Fenner and more facial hair. Indeed, after the court‟s ruling, Fenner‟s counsel
argued to the jury that Dickens was the shooter.
During its deliberations, the jury asked (1) whether a defendant had “to have
a gun in hand” to have committed first-degree murder while armed, and
(2) whether the causation element of the offense referred to just “strictly . . .
shooting Stanley Daniels” or could also “mean any act that leads to the death of
Stanley Daniels.” The trial judge answered the first question in the negative.
Responding to the second question, the judge told the jury that it could find a
defendant “guilty of first-degree murder while armed either because you are
convinced beyond a reasonable doubt that the defendant committed each and every
9
element or because you are convinced beyond a reasonable doubt that a defendant
aided and abetted another individual who committed that offense.”
The jury convicted Fenner and Dickens of conspiracy and murder.
However, it acquitted Fenner of PFCV.
II. Analysis
A. Aiding and Abetting
Appellant Fenner argues that the trial judge should have told the jury that the
aiding and abetting instruction did not apply to him. He asserts that the
government‟s evidence tended to show that he was the principal—the shooter—
and that there was insufficient evidence that he acted as an aider or abettor. He
also points to his acquittal of PFCV as proof that the jury did not believe he was
the gunman, leaving only an inappropriate aiding-and-abetting instruction to
explain his conviction of first-degree murder while armed.
“We review the trial court‟s decision to give a requested jury instruction for
abuse of discretion, viewing the instructions as a whole,” and considering “the
10
record in the light most favorable to [the requesting] party.” Washington v. United
States, 111 A.3d 16, 23 (D.C. 2015) (internal quotation marks omitted). “[T]he
central question for this court is whether [the instruction] is an adequate statement
of the law, and whether it is supported by evidence in the case.” Id. (alterations in
original). Fenner does not assert that the instruction stated the law of aiding and
abetting incorrectly, but rather that the jury would have had “to engage in an
irrational or bizarre reconstruction of the facts” to apply that legal principle to him.
See Brooks v. United States, 599 A.2d 1094, 1099 (D.C. 1991).
In the District of Columbia “all persons advising, inciting, or conniving at
the [criminal] offense, or aiding and abetting the principal offender, shall be
charged as principals and not as accessories[.]” D.C. Code § 22-1805 (2012
Repl.). “[T]he elements of aiding and abetting are” that (1) “a crime was
committed by someone,” (2) “the accused assisted or participated in its
commission,” and (3) “his participation was with guilty knowledge.” Tann v.
United States, 127 A.3d 400, 439 (D.C. 2015) (quoting Hawthorne v. United
States, 829 A.2d 948, 952 (D.C. 2003)). In order for this theory of liability to
apply, there must be joint criminal activity. “One cannot aid or abet himself.”
Brooks, 599 A.2d at 1099 (internal quotation marks and emphasis omitted). “[T]o
aid or abet another to commit a crime, it is necessary that a defendant in some sort
11
associate himself with the venture, that he participate in it as in something that he
wishes to bring about, that he seek by his action to make it succeed.” Id. (internal
quotation marks omitted).
Fenner largely relies on Brooks, where this court held that it was reversible
error to give an aiding and abetting instruction. We reasoned: “That the man who
burglarized the premises may have had an accomplice . . . does not convert him
into the aider or abettor; rather, it tends to identify him as the principal who was
aided or abetted by another.” Id. at 1100. We concluded that “Brooks was either
the principal or a non-participant. There is no evidentiary predicate for finding that
he was an aider or abettor.” Id.
In addition to distinguishing the case factually, the government argues that
the holding in Brooks has been undercut by more recent decisions of the Supreme
Court and this court. In Griffin v. United States, 502 U.S. 46 (1991), the Supreme
Court considered a challenge to a general verdict of guilty. The instructions had
permitted the jury to convict on “either one of the two objects of the conspiracy,”
but the evidence connected Griffin to only one of those objects. Id. at 48
(emphasis in original). The Court upheld the verdict, reasoning that the chance
was “remote” that “the jury convicted on a ground that was not supported by
12
adequate evidence when there existed alternative grounds for which the evidence
was sufficient.” Id. at 59-60 (quoting United States v. Townsend, 924 F.2d 1385,
1414 (7th Cir. 1991)).
The Supreme Court stressed that jurors may not be “equipped to determine
whether a particular theory of conviction submitted to them is contrary to law,” but
“[q]uite the opposite is true . . . when they have been left the option of relying upon
a factually inadequate theory, since jurors are well equipped to analyze the
evidence[.]” Griffin, 502 U.S. at 59. It held that, although the trial court could, in
its discretion, give an instruction “eliminating . . . an alternative basis of liability
that does not have adequate evidentiary support,” its “refusal to do so . . . does not
provide an independent basis for reversing an otherwise valid conviction.” Id.
at 60.
We have applied the principles of Griffin to the aiding and abetting context.
In Inyamah v. United States, 956 A.2d 58 (D.C. 2008), the appellant was convicted
of carrying a pistol without a license. There was “strong and compelling” proof
that the appellant had possessed and discarded the pistol, id. at 63, but little, if any,
evidence that he had acted to aid or abet his companion in carrying the weapon.
He argued that “the trial court‟s aiding and abetting instruction constituted
13
reversible error” because the evidence did not support that theory of liability. Id. at
59-60.
We rejected this argument, holding instead “that the Griffin principle
applies.” Inyamah, 956 A.2d at 63; see also id. at 62 (“[A] conviction generally is
sustained . . . where two correct theories of illegality are presented in the
instructions and there is sufficient evidence to convict only on one.” (internal
quotation marks omitted)). We stressed that “we [did] not agree with” the
government‟s aiding and abetting theory, but were satisfied that the “jury . . .
convicted him as a principal[.]” Id. at 62-63.
Fenner responds that his acquittal of PFCV rebuts the presumption endorsed
in Griffin. See Inyamah, 956 A.2d at 63 (referring to “the Griffin presumption”).
We need not resolve this debate. Even if it were necessary to find a factual
predicate for characterizing Fenner as an aider and abettor, the evidence was
sufficient in this case. First, Dickens had a powerful motive to kill Daniels and
stated his intention to do so numerous times, he was present at the scene of the
crime, he approached the Range Rover in which Daniels was sitting, and his
physical characteristics more closely matched Mr. Castillo‟s description of the
shooter. Indeed, Fenner argued to the jury that Dickens was the shooter.
14
Second, there was evidence that Fenner “assisted or participated in” Daniels‟
murder even if Dickens ultimately pulled the trigger. See Tann, 127 A.3d at 439.
A jury could reasonably infer that the two men coordinated before the shooting.
According to Ms. Jackson, Dickens told her that Fenner had learned of Daniels‟
location, implying that Fenner and Dickens had discussed the subject that night.
Dickens then arranged for Fenner to travel to the scene. Mr. Johnson testified that
once Fenner arrived, Fenner spoke with Pitts about where he could go after the
shooting. Pitts confirmed that he agreed to “pick [Fenner] up” after Daniels was
murdered.
Even if the jury was unsure whether Fenner and Dickens had decided at this
point who would shoot Daniels, it could infer that Fenner was seeking to make the
venture succeed by encouraging Dickens; traveling to the scene at his request;
providing any assistance that Dickens would need, including as a lookout; and then
fleeing with Dickens and/or the weapon if necessary. This view of the evidence
would make sense because the two men were “like brothers.” Indeed, Pitts
testified that Fenner fled with him after the shooting and that Fenner had a gun,
which he later attempted to hide.
15
This entire course of conduct would be sufficient to find aiding and abetting.
See, e.g., Johnson v. United States, 883 A.2d 135, 142 (D.C. 2005) (holding that
there was sufficient evidence of aiding and abetting where the defendant “was not
„merely present‟” but “gave tacit approval to all of the offenses perpetrated by
[Lewis], . . . [and] could have disassociated himself from Lewis at several points
during the sequence of events, but failed to do so; and . . . displayed his
consciousness of guilt by fleeing from the police and attempting to conceal himself
in some bushes”); Gayden v. United States, 584 A.2d 578, 582-83 (D.C. 1990)
(there was sufficient evidence to support instruction on aiding and abetting where
the defendant “traveled to the scene of the crime[,] . . . was present at the killing[,]
and . . . fled the scene with [two possible killers]”); Settles v. United States, 522
A.2d 348, 358 (D.C. 1987) (there was sufficient evidence of aiding and abetting
where the defendant was potentially a lookout and “was with Settles before the
crime, was present during the crime, and fled with Settles after the crime” because
the defendant “must have had actual knowledge that a crime was being committed,
but . . . he did nothing to disassociate himself from the criminal activity”).
Finally, the jury could have inferred Fenner‟s guilty knowledge from all of
the circumstances described above. Indeed, the jury convicted Fenner of
conspiracy, providing powerful evidence that it believed that the government had
16
proven the requisite intent for aiding and abetting as well. See Wheeler v. United
States, 977 A.2d 973, 982-84 (D.C. 2009) (holding that an aiding and abetting
instruction that did not set forth the correct requirement of intent was harmless
because “the jury, in convicting of conspiracy to murder, unanimously found the
higher, requisite intent for premeditated murder because a conspiracy to murder
could hardly involve any lesser intent”).
Even if there needed to be a factual basis for concluding that Fenner was not
the shooter, but an aider and abettor, there was such a predicate here. Thus, Fenner
does not show any error by the trial court in giving the aiding and abetting
instruction.
B. Mr. Fenner’s Closing Argument
We also reject Fenner‟s argument that the trial court committed reversible
error by striking a small portion of his counsel‟s closing argument. At the
beginning of his argument, Fenner‟s counsel told the jury that his client was
presumed to be innocent, that the government bore the burden of proof beyond a
reasonable doubt, and that the defense was not required to present any evidence.
When counsel urged, “[I]f there are questions you want answered, like about this
17
investigation, witnesses you wish you heard from, like the other people supposedly
up there in the car with [Dickens], evidence you wish you had, fingerprints [or]
DNA[,]” he was interrupted by an objection. This comment apparently referred in
part to Dickens‟ niece and her friend, who were not called to the witness stand by
the government. The trial court told the jurors they should “ignore that one
argument about people that were up there that you didn‟t hear from.”
Fenner relies upon Greer v. United States, 697 A.2d 1207, 1210 (D.C.
1997), for the proposition that he was not making an incomplete missing witness
argument, but was attempting to point out the lack of evidence to corroborate the
government‟s theory. Whether or not the court should have stricken the argument,
appellant‟s counsel went on to argue at length, attacking the credibility of the
government‟s witnesses, highlighting the conflicting descriptions of the shooter,
and emphasizing that the government bore the burden to prove appellant‟s guilt
beyond a reasonable doubt. He ended by reminding the jurors that reasonable
doubt could be based on the “lack of evidence in the case” and asserted that there
was “absolutely no physical or scientific evidence connecting Mr. Fenner [to] this
murder. No shell casings, no DNA, no fingerprints, nothing.” Thus, counsel made
the argument endorsed in Greer, and there was no abuse of discretion. See, e.g.,
Haley v. United States, 799 A.2d 1201, 1207 (D.C. 2002) (stating that “a trial court
18
has broad discretion in controlling the scope of closing argument,” and an abuse of
discretion is found when “the court prevents defense counsel from making a point
essential to the defense”).
C. The Presentence Report for Pitts
Dickens argues that he should receive a new trial because a statement that
Pitts made to the Court Services and Offender Supervision Agency (“CSOSA”) in
connection with his own presentence report (“PSR”) was not disclosed until after
trial. He relies on both Brady v. Maryland and Super. Ct. Crim. R. 33.
After Pitts pled guilty to conspiracy, a Community Supervision Officer
(“CSO”) at CSOSA was assigned in January 2011—approximately seven months
before Dickens and Fenner were tried—to conduct a presentence investigation of
Pitts. Two days later, the prosecutor emailed Pitts‟ counsel stating that she did not
“want to get in the way of [Pitts‟] PSR being completed in a timely fashion,” but
“ask[ing] you and [Pitts] to keep in mind that any statement that he provides will
have to be made available to the defense in our upcoming trial and will provide
fodder for his cross examination.” The prosecutor stressed that she would be
“carefully examining [the] statement, as will the court at sentencing, to determine
19
whether [Pitts] has fully accepted responsibility for his role in the conspiracy to
murder Stanley Daniels.”
The CSO interviewed Pitts on February 15, 2011, without notifying his
attorney or the prosecutor. Pitts made several statements that minimized his
involvement in the conspiracy and contradicted statements he later made at trial.
The day after the interview, by coincidence, Pitts‟ attorney left a voicemail for the
CSO asking her to halt her investigation because Pitts was going to move to
continue his sentencing. The CSO halted preparation of the PSR. The CSO did
not tell the prosecutor or Pitts‟ attorney that she had conducted the interview, and
Pitts‟ statement was not made available until the report was completed on
September 14, 2011.
At a June 2011 status hearing in Pitts‟ case, the judge briefly inquired about
the CSO‟s investigation. Pitts‟ attorney reported that Pitts had “spoken to” the
CSO but that she had asked the CSO not to prepare the PSR yet because Pitts
would be testifying at the trial of Fenner and Dickens. Pitts‟ attorney also said that
she “believe[d]” that the CSO had “done all of her work,” but she confirmed that
the PSR had “not been prepared yet.” The prosecutor was present during these
remarks.
20
Fenner‟s counsel moved to unseal the transcripts and PSR in Pitts‟ case. At
a July status hearing in the case against Dickens and Fenner, the prosecutor did not
object to unsealing the transcripts, but she noted that the CSO had not yet
completed her investigation. Regarding the PSR, she stated that she did not know
“what the status on that front is.” The presiding judge granted Fenner‟s motion to
unseal the transcripts but did not grant Fenner‟s request for access to the PSR,
stating that if the defense “want[s] to file something on the [PSR] issue, you can do
that.” Dickens‟ counsel was present during this exchange. Neither Fenner nor
Dickens raised the issue again before trial.
After trial, the CSO completed the PSR and submitted it to the court. The
prosecutor received it shortly thereafter and saw Pitts‟ February 2011 statement for
the first time. She then requested that the CSO contact Pitts‟ attorney so that Pitts
could give a supplemental statement. Pitts‟ attorney arranged for her client to
return to the CSO‟s office to give a supplemental statement. After receiving
permission from the presiding judge, the prosecutor disclosed to appellants‟
counsel the PSR containing both Pitts‟ original and revised statements.
21
Fenner and Dickens both moved for a new trial, citing Super. Ct. Crim.
R. 33 and Brady v. Maryland. The trial judge denied those motions, reasoning that
the government did not suppress the PSR because it did not possess it and that, in
any event, the statements were not material because Pitts was extensively
impeached at trial and any further impeachment based on the PSR would have
been cumulative. On the Rule 33 issue, the trial judge found that appellants had
not been diligent in trying to obtain the statements and that they could not show
prejudice for the reasons stated in her Brady analysis.
Whether the government has violated its Brady obligations is a mixed
question of fact and law. Mackabee v. United States, 29 A.3d 952, 959 (D.C.
2011). We “review the trial court‟s legal conclusions on a de novo basis and its
factual findings under the clearly erroneous standard.” Id. (alterations omitted)
(quoting Miller v. United States, 14 A.3d 1094, 1120 (D.C. 2011)). Appellant has
the burden of proving the three components of “a true Brady violation”: “(1) the
evidence at issue must be favorable to the accused either because it is exculpatory
or because it is impeaching; (2) the evidence must have been suppressed by the
government, either willfully or inadvertently; and (3) prejudice must have ensued,
meaning that the suppressed evidence must have been material.” Id. (alterations
and internal quotation marks omitted). As part of the second requirement,
22
appellant must show that “the information was actually in the government‟s
possession[.]” Bellinger v. United States, 127 A.3d 505, 520 (D.C. 2015).
Dickens does not appear to assert that the government had actual possession
of Pitts‟ statement at the time of trial. Instead, he argues that “the government can
be fairly charged with knowledge of the existence of Pitts‟ February 15, 2011
statement” given that Pitts‟ counsel stated at the June status hearing that she
believed that the CSO had “done all of her work[.]” Therefore, Dickens argues,
the government should have searched for and acquired the statement (or the CSO‟s
rough notes) and then disclosed the information to him. Dickens also claims that
this alleged duty has particular force in this case because “CSOSA was acting in an
investigatory manner such that they should be deemed agents of the prosecution
for Brady purposes.”
It is true that the prosecution “has a duty to learn of any favorable evidence
known to the others acting on the government‟s behalf in the case, including the
police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). When we have examined
whether an entity was acting on behalf of the government in similar contexts, we
have asked whether that entity was part of the “prosecution team.” See Myers v.
United States, 15 A.3d 688, 692 (D.C. 2011) (analyzing whether a WMATA video
23
recording was in the government‟s possession for purposes of Super. Ct. Crim.
R. 16). Although Dickens acknowledges that CSOSA is not “formally” a member
of the prosecution team, he nonetheless insists that we should treat its employees
as “agents of the prosecution.”
The record does not support this claim. First, as the trial court explained,
CSOSA undertakes investigations in order to “assist the court in sentencing
defendants,” not to prosecute them. Indeed, statutory provisions and Superior
Court rules emphasize that the court has ultimate control over the PSR process.
See D.C. Code § 23-103 (a) (2012 Repl.) (providing that “before imposing
sentence the court may disclose to the defendant‟s counsel and to the prosecuting
attorney, but not to one and not the other, all or part of any pre-sentencing report
submitted to the court” (emphasis added)); Super. Ct. Crim. R. 32 (b)(1)(A)
(requiring CSOSA to “make a presentence investigation and report to the court
before the pronouncement of the sentence”); Super. Ct. Crim. R. 32 (b)(2)(D)
(requiring the PSR to include certain information, including “such other
information as may be required by the court” (emphasis added)); Super. Ct. Crim.
R. 32 (b)(3)(A) (establishing that “[t]he court must make available to the defendant
through the defendant‟s attorney and to the attorney for the government a copy of
24
the [PSR]” (emphasis added)). 6 Further, the prosecutor had to ask the court‟s
permission to disclose the PSR to appellants, further highlighting the control that
the court, and not the prosecution, has over its disclosure.
In addition, even if the prosecutor should have known that Pitts had given a
statement to the CSO,7 the government in this case did not have knowledge of the
6
The analogous federal rule contains similar provisions. See Fed. R. Crim.
P. 32 (c)-(e). Federal courts have consistently declined to find Brady violations
when the defendant alleges that the government failed to acquire and turn over
presentence reports. See, e.g., United States v. Rivera-Rodriguez, 617 F.3d 581,
595 (1st Cir. 2010) (holding that there was no Brady violation because the
cooperator‟s “sentencing-related testimony was maintained by the probation
officer preparing the PSR, and there is no evidence that the federal prosecutor or
any agent working on the U.S. Attorney‟s behalf had this information prior to or
during trial”); United States v. Zavala, 839 F.2d 523, 528 (9th Cir. 1988) (holding
that disclosure of “statements of various government witnesses in their probation
reports” was not required by Brady, the Jencks Act, or Rule 16 because “the
probation department ha[d] control of all the reports”); United States v. Trevino,
556 F.2d 1265, 1270 (5th Cir. 1977) (holding that there were no Brady violations
in failing to disclose presentence report of principal government witness who had
pleaded guilty because Rule 32 “shows that the presentence report is a report to the
court, compiled for the court‟s use in the sentencing process” (emphasis in
original); “a presentence report serves not as a prosecutorial tool but as an
informative document for the guidance of the court”); United States v. Dingle, 546
F.2d 1378, 1381 (10th Cir. 1976) (holding that Brady “does not apply to a
presentence report because the report is not available to the prosecution. It is not
submitted to or in the possession of the government.”). Dickens cites United States
v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993), and United States v. Safavian, 233
F.R.D. 12 (D.D.C. 2005), in support of his arguments, but these decisions are not
binding on us, and we do not find them persuasive.
7
At that stage, Pitts‟ counsel had merely represented that Pitts had “spoken
(continued…)
25
PSR or access to it superior to Dickens‟ counsel. The government did not know
the content of the report until it was able to access the PSR after trial. Thus, it had
no reason to think that Pitts had made any statements that might have exculpated
Dickens. Further, both the prosecutor and Dickens‟ counsel were present when
Fenner argued that he should have access to the notes before trial, even though the
prosecutor did not have them. The trial court responded by inviting “the defense”
to file a motion explaining why “they” should receive them. Dickens‟ counsel
could have filed that motion even if Fenner did not. Instead, neither Dickens nor
Fenner raised the issue again before trial.
Although there might be circumstances in which the government could be
found to be in constructive possession of materials in the hands of CSOSA, those
circumstances are not presented here. Accordingly, the government did not fail in
its Brady obligations.8 Because the PSR statement was not in the government‟s
(…continued)
to” the CSO and that she “believe[d]” that the CSO had “done all of her
work” but that the PSR had “not been prepared yet.” Thus, at the July status
hearing, the prosecutor informed the court that she did not know “what the status
on [the PSR] front is.”
8
Dickens highlights the prosecutor‟s email to Pitts‟ counsel asking that she
and Pitts “keep in mind that any statement that [Pitts] provides will have to be
made available to the defense[.]” This curious remark cannot fairly be treated as a
concession that the Brady doctrine would require the prosecutor to disclose a
(continued…)
26
possession at the time of trial, we need not reach the issue of its materiality. See,
e.g., Guest v. United States, 867 A.2d 208, 211-12 (D.C. 2005).
We apply similar analysis to Dickens‟ argument under Rule 33. To receive
a new trial based on newly discovered evidence, Dickens must show that: “(1) the
evidence is newly discovered; (2) the moving party was diligent in seeking to
obtain the evidence; (3) the evidence is material to the issues involved and not
merely cumulative or impeaching; and (4) it is of a nature that it would probably
produce an acquittal.” Ingram v. United States, 40 A.3d 887, 901 (D.C. 2012)
(quoting Porter v. United States, 826 A.2d 398, 414 (D.C. 2003)). We review a
trial court‟s decision to grant or deny a motion for a new trial to determine whether
it has committed an abuse of discretion. Ingram at 902.
Here, Dickens fails to meet the second requirement because he was not
diligent in seeking out Pitts‟ statement to the CSO. As already noted, the trial
court invited “the defense” to file a motion to obtain access to the CSO‟s notes
(…continued)
statement she did not possess. Moreover, as the trial judge stated, there is “nothing
nefarious” about deferring preparation of the PSR in this context because “the
government has a legitimate interest in postponing sentencing until a time when it
can make a sentencing recommendation that reflects the extent of the
codefendant‟s cooperation.” Mr. Pitts had a similar interest in postponing his own
sentencing until he had fulfilled his commitments under the plea bargain.
27
before trial. Dickens did not do so even though his counsel was present when the
trial judge made this ruling. Thus, he did not diligently try to obtain the evidence,
and he cannot now complain that he should receive a new trial because the
evidence was newly discovered.9
D. Mr. Dickens’ Complaint About His Counsel
Dickens also argues that we should remand for further inquiry regarding a
complaint that he made before trial about his counsel, Kevin McCants. Fenner
requested a continuance of the trial, a motion which Mr. McCants opposed but the
court granted. At the next hearing, Mr. McCants told Judge Thomas J. Motley, to
whom the case was then assigned, that Dickens had been informed by a third party
that Mr. McCants had “caved in” regarding the continuance and that “[b]ased on
that—and there may be other matters—he‟s decided that he wants to get rid of me
off of this case. At least he wants the Court to appoint him a new lawyer.”
Judge Motley repeatedly emphasized that he, too, had “wanted to keep that
trial date” but felt compelled to grant the continuance because of medical issues
9
Because appellant‟s argument fails on this prong, we need not reach the
government‟s alternative arguments that the evidence was merely impeaching and
that it was not likely to produce an acquittal.
28
facing the mother of Fenner‟s counsel. The court also wanted to try the cases
together. Thus, as a practical matter, Mr. McCants would not have been able to
prevent the postponement of Dickens‟ trial. Judge Motley concluded that “[i]f
that‟s the only issue of the relationship, I can‟t appoint him new counsel because
you couldn‟t get the date changed.” Mr. McCants confirmed that he and Dickens
had a “great relationship” aside from the continuance issue. Mr. McCants
represented Dickens at trial.
On appeal, Dickens complains that the trial court did not make any inquiry
of him personally, nor did it investigate his counsel‟s comment that “there may be
other matters” relevant to Dickens‟ reported dissatisfaction. “When a defendant
makes a pretrial challenge to the effectiveness of counsel . . ., the trial court has a
constitutional duty to conduct an inquiry sufficient to determine the truth and scope
of the defendant‟s allegations.” Monroe v. United States, 389 A.2d 811, 820 (D.C.
1978). That inquiry “is necessarily dependent upon the circumstances presented in
each individual case, and thus must be committed to the sound discretion of the
trial court.” Portillo v. United States, 62 A.3d 1243, 1252 (D.C. 2013) (quoting
Monroe, 389 A.2d at 821).
29
The trial court did not abuse its discretion when conducting its inquiry.
Mr. McCants‟ remarks made clear that Dickens‟ main, and possibly only,
complaint was his belief that Mr. McCants “caved in” regarding the continuance.
Judge Motley engaged in a lengthy discussion with Mr. McCants in which he
repeatedly stressed that the trial date had to be moved due to unavoidable
circumstances regarding the mother of Fenner‟s counsel. 10 Thus, the record
demonstrates that Mr. McCants‟ failure to prevent the continuance was not
evidence of ineffectiveness.
We reject Dickens‟ argument that Judge Motley abused his discretion by not
probing further into Mr. McCants‟ passing comment that “there may be other
matters.” Once the trial court completed its inquiry into Dickens‟ specific
complaint, it was not required to investigate such a fleeting and vague reference.
See, e.g., Forte v. United States, 856 A.2d 567, 574, 576 (D.C. 2004) (“[T]he court
need not attempt to examine every conceivable deficiency in the representation,”
10
Dickens‟ appellate counsel claims that Dickens was not present during
this colloquy. Dickens was in the courtroom and unshackled, but the colloquy took
place at the bench. It is unclear whether Dickens approached the bench with his
counsel. Dickens did not speak during the colloquy, and no questions were
directed to him. However, when Mr. McCants raised the issue with Judge Motley,
he stated that “Mr. Dickens and I have a preliminary matter,” and he asked “if we
could possibly approach” (emphasis added). The bench conference then
commenced. In any event, as we explain, the trial court conducted an adequate
inquiry regardless of whether Dickens was at the bench during the colloquy.
30
and a defendant‟s “satisfaction” with counsel is relevant to a determination of
professional competence “only to the extent that any discontentment is tied to
articulated claims of ineffectiveness”); Stevens v. United States, 683 A.2d 452,
454-55 (D.C. 1996) (holding that a brief inquiry was adequate where the defendant
complained about one issue “that, as the trial judge knew, rested upon a
misunderstanding of law and fact”; a second issue that the trial judge “had been
fully able to evaluate”; and a third, vague reference to “other reasons, too”).
Further, there was no need to question Dickens directly given the limited
nature of the one articulated complaint, Mr. McCants‟ cursory reference to other
possible matters, and Judge Motley‟s lengthy discussion with Mr. McCants
regarding the complaint. See, e.g., Forte, 856 A.2d at 575 (“We have required the
trial court to question defense counsel and . . . the defendant, if necessary.”
(alteration in original) (internal quotation marks omitted)). Indeed, Dickens did
not voice displeasure at subsequent pretrial hearings which he attended.
Accordingly, we hold that Judge Motley did not abuse his discretion when
conducting his inquiry.
III. Conclusion
31
The judgments of the Superior Court are hereby
Affirmed.
1 Separate Statement of Associate Judge FISHER: D.C. Code § 22-1805 (2012
2 Repl.) provides that “all persons advising, inciting, or conniving at the offense, or
3 aiding or abetting the principal offender, shall be charged as principals[.]” This
4 statute was produced by a “reform movement” which also led to the enactment of
5 18 U.S.C. § 2. See Standefer v. United States, 447 U.S. 10, 17-19 (1980). “The
6 purpose of D.C. Code § 22-1805 was to abolish the distinction between principals
7 and accessories and render them all principals.” Tann v. United States, 127 A.3d
8 400, 438 n.19 (D.C. 2015) (internal quotation marks omitted); accord, Wilson-Bey
9 v. United States, 903 A.2d 818, 837 (D.C. 2006) (en banc) (same).
10
11 Although cases such as Griffin and Inyamah have limited the impact of the
12 decision in Brooks v. United States, 599 A.2d 1094 (D.C. 1991), there is enduring
13 mischief in some of its language, which suggests that, despite this legislative
14 reform, courts still are obliged to assign roles—in other words, to determine which
15 defendant was “the principal” and which defendant was “an aider and abettor.”
16 See, e.g., id. at 1099 (“[T]here must be evidence that someone other than defendant
32
17 was the principal whom the defendant aided and abetted.” (internal quotation
18 marks and emphasis omitted)); id. at 1100 n.10 (rejecting “the proposition that the
19 main wrongdoer can be the aider or abettor of a minor participant in the unlawful
20 conduct”). 1 For purposes of determining liability, however, this is a pointless
21 exercise. See Tyree v. United States, 942 A.2d 629, 636 (D.C. 2008) (“In law, the
22 aider and abettor is equally as culpable as the principal.”).2
23
24 The helpful legacy of Brooks is its reminder that the doctrine of aiding and
25 abetting does not apply unless there was more than one participant in the crime—
26 “One cannot aid or abet himself.” 599 A.2d at 1099. Thus, when asked to give an
27 aiding and abetting instruction, the trial court should focus on whether the evidence
1
The majority in Brooks felt itself bound by Payton v. United States, 305
A.2d 512 (D.C. 1973), which states that “there must be evidence that someone
other than defendant was the principal whom the defendant aided and abetted.” Id.
at 513; see Brooks, 599 A.2d at 1099, 1102 n.19. However, the holding in Payton
was based on the lack of evidence that anyone else was involved in the crime. To
support the statement quoted above, the court in Payton cited Morgan v. United
States, 159 F.2d 85 (10th Cir. 1947), and United States v. Horton, 180 F.2d 427
(7th Cir. 1950). Both decisions rest on recognition that “[o]ne cannot aid and abet
in the commission of a crime unless there is another who has committed the
offense. In other words, one cannot be an aider and abettor of himself in the
commission of an offense.” Morgan, 159 A.2d at 87; see Horton, 180 F.2d at 431
(quoting this language from Morgan).
2
The degree of culpability may, of course, be highly relevant to sentencing.
33
28 shows that the defendant acted alone or with one or more other persons.3 As the
29 standard jury instruction properly explains, “Any person who in some way
30 intentionally participates in the commission of a crime can be found guilty either as
31 an aider and abettor or as a principal offender. It makes no difference which label
32 you attach.” Criminal Jury Instructions for the District of Columbia, No. 3.200
33 (5th ed. rev. 2016).
3
It is not necessary that the other participants have been identified,
prosecuted, or convicted. See, e.g., Standefer, 447 U.S. at 20; Brooks, 599 A.2d at
1099.