George L. Bailey v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 96-CF-977 and 00-CO-1371 G EORGE L. B AILEY, A PPELLANT v. U NITED S TATES, A PPELLEE Appeals from the Superior Cou rt of the District o f Colum bia (F-1484-95) (Hon. Truman A. Morrison, III, Trial Judge) (Hon. Hiram E. Puig-Logo, Post-Trial Motions Judge) (Argued April 24, 2002 Decided September 18, 2003) Mindy A . Daniels, appointed by the cou rt, for appellan t. Matthew P. Cohen, Assistant United States Attorney , with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., Michael D. Brittin, and Howard R. Sklamberg, Assistant United States Attorneys, were on the brief, for appellee. Before TERRY, F ARRELL, and REID, Associate Judges. T ERRY, Associate Judge: Appellant Bailey was charged with various offenses arising out of events that resulted in the murders of Andre Briscoe, 2 Kimbe rly Smith, and Henry Bost. After a six-day jury trial, he was convicted on two counts of first-degree burglary, two counts of possession of a firearm during a crime of violence ( PFCV ), two cou nts of arm ed robbe ry, three cou nts of firstdegree felony murder, two counts of first-degree p remeditate d murd er, assault w ith intent to kill while armed ( AWIKWA ), and assault with a dangerous weapon ( ADW ). On appeal from these convictions, he argues (1) that the cumulative effect of improp er comm ents made b y the prose cutor durin g his opening and closing statements, together w ith the prosec utor s perva sively leading questions, prejudiced his defense; (2) that there was insufficient evidence to convict him of AWIKWA and ADW; and (3) that several of his convictions merge. While his direct appeal was pending, a ppellant also filed a motion under D.C. Code § 23-110 (2001) asserting that his trial counsel rendered ineffective assistance. After a hearing, the trial court denied the motion. Appellant then noted a second appeal, which we consolidate d with the firs t. We hold that the prosecutor s comments, although they sometimes crossed the line of prop riety, do not w arrant a new trial and that there was sufficient evidence to sustain appellant s conviction of AWIKWA. In addition, we affirm the trial court s d enial of a ppellan t s § 23- 110 m otion. W e also h old, how ever, that there was insufficient evidence to support appellant s conviction of ADW (though 3 the evidence was sufficient to convict him of the lesser included offense of simple assault) and that some of his convictions merge. We therefore affirm the conviction s on the m erits (except fo r the AD W, wh ich we red uce to sim ple assault) and remand the case to the trial court for resentencing. I A. The Murders Roy Irby owned a house on P leasant Street, S.E., which he operated as a crack house, a place where people would come to buy and use crack cocaine. Appellant was the p rimary selle r of crack co caine at that h ouse ove r a period of six or seven months in the latter part of 1994. On Saturday morning, December 10, 1994, two men broke into Mr. Irby s house while all of its occupants were asleep. One of the me n (later identified as appellan t) was slightly taller than the other, but both were about six feet tall and were wearing blue jump suits and black face masks. Mr. Irby and two other men, Percy Settle and Edward Judge, were sleeping on two couches and a chair in the living room. One by one, the two intruders woke them up at gunpoint and ord ered them to disrobe, su rrender va rious perso nal items, an d lie down on the couch or the floor. Th e intruders the n covered the three w ith blankets 4 to prevent them from seeing, but Mr. Judge was able to adjust the blanket that covered h im so that h e could see through a hole in it. A short time later, Andre Briscoe knocked at the door of the house. Although the hos tages h eard the knock ing, appellant d id not respo nd until his accomplice walked in front of him, waved to him, and repeated, Somebody s at the door. Appellant then told Briscoe to go around to the back door. When Briscoe entered through the back door and was confronted by one of the intruders, he said, I m not going for this shit, man. A fight ensued, and Briscoe was killed.1 The intruders brought his body into the living room, and appellant said to the hostages, That s wha t happe ns to m other fu ckers th at buck on me . The intruders then started rummaging through the first floor rooms u ntil they heard Sharon S mith, anoth er occupant of the house, moving around upstairs. They ordered Mr. Judge to call Ms. Smith downstairs, and when she came down, they took her pock etbook, ord ered her to lie on the floor with th e others, and put a blanket over her. In addition to Ms. Smith, two other men joined the hostages on the 1 The medical examiner found five stab wounds and thirteen smaller incisions in Mr. Briscoe s body. He concluded that those wounds were caused by a single-edged knife and that they were consistent with a knife later recovered by the police near the scene of the crime. 5 living room floor tha t morn ing. Joh nny W hite, Jr., and Anthony Chisley both came to visit Mr. Irby, one shortly after the other. When they arrived and knocked on the door, they were sent around to the back. Once at the back door, they were brought inside and ordered to strip and lie on the floor , where the y too we re covered with blankets. After the intruders had everyone under control in the living room, they went to the second floor and brought down the two remaining residents of the house, Henry Bost and Kimbe rly Smith. M r. Bost and Ms. Smith had been sleeping in a room upstairs. Once they were downstairs, appellant stated, These are the mother fuckers we want, the ones we re lookin g for. 2 Then, w ith Kimb erly Smith pleading for her life and offering to pay him and make it up, appellant stabbed her repeatedly.3 After a short tim e, he turn ed to H enry B ost, who was lying face down 2 There was evidence that both Bost and Smith owed appellant money as a result of drug transactions. Even though these debts were fairly small, appellant talked about the m oney that B ost owed h im all the time, according to Evette Tinch, one of the government s ma in witnesses. Ms. Tinc h, herself a drug user, acknowledged that she had a relationship with appellant which enabled her to obtain cocaine from him for her own use. She testified that she also engaged in drug trafficking along with appellant and that she kept the records of his drug transactions because of how he w as about his mon ey. . . . If you even owed him a dollar, he will brin g you d own f or a dol lar. 3 Ms. Smith s body had seventeen stab wounds and thirteen incisions. (contin ued...) 6 on the floor, and stabbed him multiple times.4 When appellant ceased stabbing Bost, Mr. Judge, fearin g that he w ould be ne xt, sprang u p and jum ped through the front window, taking appellant with hi m. Appellant stabbed Mr. Judge in the leg, but Judge was able to escape, clad only in a pa ir of boxer sh orts. Appe llant chased him up an alley for about half a block until Judge managed to give him the slip. Judge then flagged down a passing police car, told the officers inside what had happened, and directed them to R oy Irby s house. Th e two intruders, how ever, fled from the house before the police arrived. Mr. Judge, in fear for his life, went to a bus station later that day and caught a bus out of town. H e eventua lly made h is way to Tampa, Florida, where he remained for several weeks. 5 The next day, the police received a 911 call from a man who said his name was Mike and claimed to have information abou t the murders in M r. Irby s house. 3 (...continued) These wounds were also consistent with the single-edged knife found by the police. 4 Mr. Bost s body had seven stab wounds and several abrasions. Accord ing to the m edical exam iner, the abras ions could have been caused by being hit with the bu tt of a gun, and the stab w ounds were c aused by a single-edg ed knife consistent with the one found by the police. 5 Mr. Judge testified that he treated his stab wound on the bus: I drunk a pint of v odka, s oaked it in vod ka, took a need le and th read an d sew ed it. 7 The caller stated that on the night before the crime he had given two blue jum p suits to Kebe and Larry, who had told him they were going to commit a robbery. The police had , in fact, discovered a bag containing two blue jump suits, ski masks, a burgundy jacket, and a knife a short distance from Irby s house on the day of the crime. Investigating officers were able to trace the jump suits, which were Unifirst work uniforms, to appellant through his former employer. A few days later the police approached appella nt and questioned him about the suits. During the interview, appellant admitted that he had made the 911 call and identified the jump suits and the bu rgundy ja cket as his, statin g that he ha d left the jacke t at Mr. Irby s house on a recent visit. He also identified Kebe and Larry as Keith Robinson and Thomas Harley.6 Acting on this information, the police arrested Robinson and Harley. They were both released the next day, however, after the police concluded that neither of them was involved in the murders.7 6 Evette Tinch testified that appellant disliked both Robinson and Harley, and that each of them owed appellant money. 7 Mr. Robinson and Mr. Harley are, respectively, 5'5" and 5'7" tall about six inches shorter than the witnesses description o f the intruders . Both Robinson and Harley also had alibis, including the fact that Robinson was seen at a store by one of the surviving victims within minutes after the crime had occurred. 8 In January 1995 Mr. Judge returned from Florida and was interviewed by Detective Gregory Archer of the Homicide Branch of the Metropolitan Police. He told Archer that he recognized appellant as the taller of the tw o intruders fro m his voice and his behavior, and he po sitively identified appellant s photograph from an array of photographs. The police then arrested appellant and charged him with the murders. Mr. Judge was later placed in the witness protection program. B. The Trial The government presented testimony from several witnesses who were familiar with Mr. Irby s house. All of them stated that it was a crack house. They also testified that appellant was the main supplier of crack to visitors at the house and that he was a stickler for mon ey. Several of the witnesse s said that Henry Bost owed appellant a small amount of mon ey during the week s before his death, and that they had h eard appe llant threaten to kill Mr. Bo st if he did no t pay his deb t. Evette Tinch w as one of th e witnesse s who testif ied about Mr. Irby s home and the fact that it w as a crack h ouse. M s. Tinch he lped appe llant with his drug business at the house, keeping detailed records of the sales and of how much each purchaser owed (se e note 2, supra). She acknowledged that she also had an intimate 9 relationship with appe llant despite the fact that she was roman tically involve d with another man. 8 Although she was not prese nt at the house whe n the murders occurred, she was th ere the prev ious night. O n that night, M s. Tinch testified, appellant was wearing a blue jump suit, a black knit cap, and a burgundy jacket, and she identified some of the articles of clothing found by the police near the scene of the crime as the ones she saw appellant wearing. Ms. Tinch also stated that appellant was carrying a silver handgun similar to one that the hostages described as used by the intruders. Deborah Conyers, another frequent visitor at Mr. Irby s, also saw appellant that night and corroborated Ms. Tinch s testimony. Several of the people who were held hostage at the house that morning testified that appellant was of the same height and build as the taller of the two intruders. Additionally, Percy Settle said that one of the intruders was wearing a burgundy jacket under his jump suit that was similar to appellant s, and Johnny White stated that after th e murde rs he saw appellant s brother in possession of a distinctive watch that the intruders had taken from him. Finally, Mr. Judge identified appellant in court as one o f the intruders, even though both men w ore masks. He explained: 8 That man was Keith Robinson, one of the two men who had initia lly been arrested for the murders. 10 Well, I have been seeing George Bailey every day for months, listening to him talk a nd have c onversatio ns with various people, sitting at a table with him, listen to h im talking about Henry [Bost] and different things. And I recognized his voice. Mr. Judge and other witnesses testified that appellant had a hearing problem, which was consistent with the fact that the taller of the two intruders could not hear the knocking at the door when Mr. Briscoe arrived. As Mr. Judge described the situation, [T]his other guy had to get his attention. He didn t seem to hear when some one w as kno cking o n the do or. 9 Appellant himself did not testify, but h e presented an alibi defense through the testimony of friends and relatives. According to those witnesses, he spent the night with his girl friend, and in the morning he went with his brother to borrow a truck from a friend. When the truck was unavailable, appellant spent time at the home of his girl friend s daughter while his brother attempted to obtain a truck from another source. 9 At trial appellant wore two hearing aids, which the judge ordered him over defense counsel s objection to display to the jury. 11 Before the case w ent to the jury, the court granted a judgment of acquittal on six counts of armed robbery and three counts of felony murder based on those robbery counts. The government also dismissed one of the three PFCV counts. The jury acquitted appe llant of the pre meditated murder o f Mr. Brisc oe but fou nd him guilty on all the remaining counts that it considered. C. The Post-Trial Motion Nearly three years after his convictions, appellant filed a motion under D.C. Code § 23-110 asserting that h is trial counsel (n ow dec eased) had been ineffe ctive. Although appellant found fault with seve ral aspects of counsel s p erforman ce, his main contention was that counsel had failed to cross-examine Mr. Judge about several alleged inconsistencies between his trial testimony and his statements to the police. After a hearing,10 the cou rt denied the mo tion. The court expressed con cern about counsel s performance, but concluded that there is not a reasonab le probab ility that a ny erro r affecte d the ou tcome of this tria l. 10 Because the trial judge had recently retired, the hearing was held before a different judge who had no prior contact with the case. 12 II Appellant argues that th e cumu lative effect of a llegedly im proper co mme nts and actions by the prosecu tor, both in his opening and closing statements and during the trial in the form of leading q uestions, w as so prejud icial as to require rev ersal. In effect, appellant contends that the trial court abused its discretion by fa iling to grant a mistrial for these improprieties or, at a minimum , by failing to take more rigorous corrective measures to remedy them. See Irick v. United States, 565 A.2d 26, 33 (D.C. 1989). In evaluating such claims, we must first determine whether any or all of the challenged comments by the prosecutor were improper. McGrier v. United States, 597 A.2d 36 , 41 (D.C. 1 991); accord , e.g., Harris v. United States, 602 A.2d 154, 159 (D.C. 199 2) (en ban c); Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989). If they were, then, viewing the remarks in context, we must consider the gravity of the impropriety, its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government s case in determining whether the com ments resulted in substantial prejudice. McGrier, 597 A.2d at 41 (citation om itted). The test for substantial prejudice is essentially the same as analysis under the harmless error rule: whether, after pondering all that happened without stripping the erroneous action from the whole, we can conclude 13 that the judgment was not substantially swayed by the error. Id.; see Kotteakos v. United States, 328 U.S. 750, 765 (1946). A. The Alleged Improprieties Appellant contends that the prosecutor acted improperly in three respects: (1) by mak ing impro per com ments during his opening statement; (2) by persisten tly asking leading questions throughout the trial, even after the judge ord ered him to stop; and (3 ) by mak ing an im proper co mme nt in his closing argume nt. 11 1. The Opening Statement The purpose of an opening [statement] is to give the broad outlines of the case to enable th e jury to com prehend it. It is not to poison the jury s m ind against 11 The government contends that certain of the comme nts of which appellant now complains were not challenged at trial and should therefore be examined only fo r plain er ror. See McGrier, 597 A.2d at 41. Appellant asserts in response that his counsel made numerous objections during the opening statement and that, after his last objection, the trial judge told him that further objections were unnecessary. Appellant also notes that alth ough his c ounsel did not object to every leading question in order to avoid annoying the jury, he had alerted the trial judge to his view that the leading questions were pervasive. Given these consistent objections, we agree with appellant and conclude that the propriety of all the comments and questions was adequately preserved for appellate review. 14 the defendant . . . . Government of the Virgin Islands v. Turner, 409 F.2d 102, 103 (3d Cir. 1968). Thus an opening statement should not be argumentative, see Wright v. United States, 508 A.2d 915, 921 (D.C. 1986) ( the court may curtail an opening statement that becomes argumentative or inflammatory (citations omitted)), nor should it appeal to the pass ions an d sym pathies of the ju ry. See Hill v. United States, 367 A.2d 110, 113 (D.C. 1976). In addition, an opening s tatement g enerally should not refer to facts that will not be presented as evidence, although [t]he law does not require th at opening trial statements be completely supported by evidence introduced during the trial. Mares v. United States, 409 F.2d 1083 , 1085 (10th Cir. 1968), cert. denied, 394 U.S. 963 (1 969), quo ted in Owens v. United States, 497 A.2d 1086, 1 091 (D .C. 198 5), cert. denied, 474 U.S. 1085 (1986). So long as the unproduced evidence is not touted to the jury as a crucial part of the prosecution s case, a limiting instruction from th e trial court is usually a sufficient cure for any possib le prejud ice. Frazier v. Cupp, 394 U.S. 731, 736 (1969). In this case, the p rosecutor b egan his opening s tatement w ith a description of the events of December 10, 1994, and then discussed the circumstances surrounding the investigation into the murders. Defense counsel objected four times during the 15 prosecutor s statement; the court overruled three of the objections.12 Appellant now maintains that numerous remarks made by the prosecutor in his opening statement were imprope r because th ey referred to facts that we re never pr oven by evidence, appealed to the sympathies of the jury, and were argumentative. Appellant first challenge s statemen ts that Roy Ir by was now in a nursing home and that he never recovered from the incident. He argues th at the government did not offer any evidence of these facts and that they w ere intende d to garner sympathy from the jury. The government concedes that no evidence was introduced concerning M r. Irby s prese nt where abouts or sta te of health (Irb y did not testify), but it maintains that whether Irby was still suffering from the effects of the incident or was in a nu rsing home was not crucial to the ca se, nor was Irby s status touted to the ju ry. See Frazier, 394 U.S. at 736. Indee d, Mr. Irby s present condition was only touched upon near the beginning of the opening statement and was never mentioned again over the course of a six-day trial. We find no prejudice warranting reversal. Although the statement was improper because there was no evidence to support it, the impropriety was slight and only tangentially related to the issues at trial. 12 The court made no ruling on counsel s first objection, but cautioned the prosecutor to refrain from a rguing or repeating him self. 16 Appellant next complains o f the comm ent that the intruders entered the house through the back doo r because no eviden ce was ev er presented to show how the intruders gained access to the house. All the doors had been locked the night before, and there was no evidence of a forced entry. The government argues, however, that the jury could infer that the visitors entered through the back door because the front door was barricaded througho ut the morning an d visitors were instructed to use the back door instead. On this rec ord such a n inference is entirely plausible. The evidence was sufficient to enable the jury to infer that the intruders entered through th e back do or, and thus there was noth ing impro per abou t this comm ent. Appellant also disputes the prosecutor s statem ent that the hostages we re unclear as to the amount of time that passed while they were being held hostage.13 Appellant claims the statement was argumentative because it set[ ] up exc uses in advance for witn ess disc repanc ies that m ay hav e been broug ht out o n cross . . . . We cannot ag ree. Contra ry to appellant s contention, the prosecutor s statement did not assert, or even allude to, any discrepancies in the witnesses testimony ; it 13 The statement was: Some time passed. How much is unclear. Those people who were there on the floor , hostages, if yo u will, of these intruders, their conce rn was not for tim e. It was for their li ves. 17 simply noted that witnesses would not be able to give an accurate account of the time. Such a statem ent is not argumen tative or improper. Appellant next complains about several comments during the latter part of the prosecutor s opening statement, when he was discussing the course of the police investigation. Some of these com ments are troubling. First, appellant criticizes the prosecutor s characterization of the investigation as a monumentally difficult task because the police had to focus on some false facts . . . put in their path by [appella nt]. Defense counsel o bjected to this statemen t and mo ved for a m istrial. The trial judge denied the motion, but noted that the prosecutor was focusing too much on a glorification of the investigation and urged him to describe the investigation without describing its herois m and the diffic ulties of it all. We agree with the trial judge that the prosecutor s characterization of the investigation came close to the limits of p ermissible c omm ent, but it did not cross the line, nor w as it serious enough to warran t a mistrial. The course of the investigation was not central to the government s case, and the comment did not seriously prejudice the defense. The prosecutor then went through some of the facts that were known to the police and said tha t the jury cou ld draw several inferences about the murders based on those facts. After stating that Mr. Irby s home was a crack house, the prosecutor 18 said that this fact suggested that perhaps these murd ers we re drug -related . Additionally, from the actions and words of the intruders, the prosecutor suggested that the perpetrators knew at least two of the victims and that the killings might have been related to drug debts. These remarks resemble a closing argument more than an opening statement. Although it is certainly proper for the prosecutor in any case to alert the jury to th e facts that the government expects to prove during the trial, the manner in which the prosecutor did so in this case was unduly argumentative. Instead of saying simply that the gov ernment intended to prove that the mu rders were drug-related or that the murderers knew their victims, the prosecutor urged the jury to draw infe rences bas ed on the fa cts he had a lready reco unted. As king a jury to draw su ch inferenc es is not a pro per function of an ope ning statem ent. Nevertheless, the preju dice to th e defen se was slight. Most importantly, the inferences argued b y the prose cutor we re ultimately supported by the evid ence. Moreover, the context of the comments mitigates to a large extent the argumentative tone, in that the prosecutor was attempting at this point to explain to the jury how the police had zeroed in on appellant as a suspect. Although it would have been preferable for the prosecutor to construct h is opening statemen t in such a w ay as to avoid these argum entative infere nces, his failure to do so did not result in any significant prejudice to the defense. 19 Continuing his discussion of the police investigation, the prosecutor also described the alibis of Mr. Robinson and Mr. Harley, the two men orig inally arrested for the murder, as airtight. Appellant contends that this characterization was improper, and we agree. While it is true that both m en had alib is, the strength of those alibis their airtightness was a matter for the jury to decide and should not have been the subject of comment by the prosecutor in his opening statement. Once again, however, this comment was an isolated remark, and the resulting prejudice, if any, was negligible. Finally, appellant challenges the prosecutor s exhortation of the jurors to be attentive during the trial out of respect for the three individuals who lost their lives. Appellan t argues that th is statemen t appealed to the sympathy of the jury by subtly hinting that he w as respo nsible fo r the m urders. W e agree that this remark should have been left unsaid, but in context we do not think it was und uly prejudicial. We note that the prosecutor only asked for the jurors undivided attention and did not ask them to send a messag e to the def endant, something we have repeate dly con demn ed. See, e.g ., Crutchfield v. United States, 779 A.2d 307, 319 (D.C . 2001); Bowman v. United States, 652 A.2d 64, 71 (D.C. 1994). 20 2. Leading Questions In addition to the allegedly improper comme nts during his opening statemen t, appellant maintains that the prosecutor acted imprope rly by repea tedly asking leading questions of his own witnesses throughout the trial. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. FED. R. E VID. 611 (c). The purpose of prohibiting leading qu estions on d irect exam ination is to a void the ev il of supplying a false memory for the witness. Green v. United States, 121 U.S. App. D.C. 1 11, 112, 348 F.2d 3 40, 341 (citation s omitte d), cert. denied, 382 U.S. 930 (1965); see Scott v. United States, 412 A.2d 364, 371 (D.C. 1980). The trial court, however, has fairly broad discretion to allow leading questions to be asked, and reversal is usually not required if the record shows that the court exercised that discretion. Green, 121 U.S . App. D .C. at 112, 34 8 F.2d at 34 1. The rec ord in this case clearly and repeatedly demonstrates that the trial judge was alert to the possibility of prejudice and acted appropriately. Defense counsel made approximately sixty-four objections to leading questions in the course of the trial; the trial judge sustained forty-two of those objections, but frequently remarked that counsel was objecting to matters of little or 21 no importance. Appellant also asserts that there were num erous questions that w ere leading to which his counsel did not object because he did not want to annoy the jury. For example, the prosecutor asked such questions as Did you go in through the front door o f the house ? ; Did y ou do w hat you co uld, along w ith Officer Downing, to secure [the scene]? ; With g lasses, do yo u have go od vision? ; Did you remain under that blanket until the ordeal ended? ; and Was the watch special to you? Defense counsel, on four separate occasions, requested a mistrial due to the prosecutor s excessive leading questions. On the last occasion, the judge called a recess in the trial in orde r to discuss proper questioning with the prosecutor. The prosecutor denied that he was asking leading questions.14 The judge replied, I don t believe that any of these instances, either taken separately or as a whole, have begun to come to the point where they are denyin g Mr. B ailey a fair trial. I do find that there s a problem that I m having trouble managing, and I don t know w hat to do about the disagreement [with the prosecutor] about what s a leading question and what is n t a lead ing que stion. 14 In this he was clearly mistake n. A leadin g question is traditionally defined as one that suggests its own answer, especially a question that may be answered by a mere yes or no. B LACK S L AW D ICTIONARY 897 (7th ed. 1999 ). Many of the prosecutor s questions fit this definition. 22 Although the frequency and persistence of the prosecutor s leading questions gives us some concern, we agree with the trial judge that they did not, either individually or collectively, result in any mean ingful p rejudice to the de fense. Many of them concerned preliminary information or were deemed not consequential by the judge. A ddition ally, the witnesses generally corroborated one another through their testimon y, indicating th at the prosec utor was n ot supplyin g the witne sses with false memor[ies]. See Green, 121 U.S. App. D.C. at 112, 348 F.2d at 341. As a result, any prejudice caused by the prosecutor s leading questions was not substantial en ough to ar ouse in us a ny real dou bt about the fairness of the trial. 3. Closing Argument During his rebuttal closing argument, the prosecutor attempted to encourage the jurors to draw on their collective experience as citizens of a large metropolitan area. In doing so, he said: You are a remarkable jury in the sense that you are richly diverse. Up to twelve of you who will be sitting in this case, four of you are men an d eight of you are women. Of those twelve, you range in age from twenty-nine to sixty. Thirtyone years separates the younge st from the oldest me mber. Three of the twelve of you reside in Northe ast, nine reside in Northw est, two of y ou work in Southw est. 23 None of you, as far as I can tell, live or work in Southeas t, the part of this city where these awful crimes were committed. You have a range of job experience. You work for Howard University, the United States Information Agency, for the W orld Ba nk. One of you is retired. One of you work s for the D epartm ent of T ranspo rtation. O ne of you [works] for the University of Maryland. One of you is a banker with Nations Bank. Defense counsel objected, asserting that the prosecutor s statements terrorized the jury. The trial court sustained the objection, but den ied defense counse l s subsequent motion fo r a mistrial bas ed on thes e comm ents. Appellant now argues that the comments were improper in that they violated that sanctity of juror anonym ity and gave the govern ment a hidden advantage by identifying a mutua lity of econ omic a nd clas s status. These statements by the prosecutor were clearly improper and should not have been made . Although there is nothing in herently w rong in seeking to draw on the collective ex perience o f the jury, there was no n eed for the p rosecutor to recite the occupation and residence of any individual juror. That inform ation was totally irrelevant to the issues at trial and may w ell have made so me jurors very uncomfortable. The prosecutor took a great risk by breaching the anonymity that, as a general rule, is designed to shield individual jurors from harassment. The government suggests tha t the prosecu tor s com ments w ere invited b y a highly 24 rhetorical closing argument by defense counsel. That is true to some e xtent, 15 but it does not justify w hat the pros ecutor did h ere. We c annot agre e with the a ssertion in the govern ment s brief th at the p rosecu tor s ob servatio n was entirely benign . Once again, how ever, we c onclude th at the impro priety was not severe e nough to warrant reversal. The statements came during the rebuttal portion of a long closing argume nt, after a long trial, and they were not related to the evidence in the case. Appellant has not persuaded us that they ma de any rea l difference in the outcome of the proceedings. B. Cumulative Prejudice Appellant urges us to weigh the cumulative effects of these improprieties and, having done so, to reverse his conviction. Although we agree that the prosecutor more than once crossed the border between proper and improper comm ent, we are not convinced that his comments would justify reversal even when considered as a whole. Most of the improprieties were minor and were not related to appe llant s gu ilt or inno cence . Moreover and this, in our view , is particularly significant the trial judge was very attentive to defense counsel s repeated 15 See United States v. Young, 470 U.S. 1, 12 (198 5). 25 concerns and objections, especially to the many leading questions. The judge also instructed the jury that statements by the lawyers during opening and closing argume nts were not evidence and that their qu estions t hems elves ar en t evid ence. Finally, and importantly, the government had a strong case. Appellant had previously threatened to kill Mr. Bost; he was seen on the evening before the crime wearing the same clothing as one of the intruders; he admitted owning the jump suits and the burgundy jacket found near the crime scene; he possessed a gun similar to the one used by the intruders; he made a 911 call (using a false name) with dubious information about the crime, which the jury could readily infer was designed to lead the police astray; and he was positively identified in court by one of the victims, who recognized his voice because he had heard it every day for mont hs. Given such p owerf ul evide nce, w e are satisfied that the prosecutor s lapses did not impro perly in fluence the outc ome o f the trial. Cf. United States v. Somers, 496 F .2d 723 , 738 (3 d Cir.), cert. denied, 419 U.S. 832 (19 74). III Appellant challenges the sufficiency of the eviden ce suppo rting his convictions of assault with intent to kill while armed ( AWIK WA ) on M r. Judge (count X of the indictment) and assault with a dangerous weapon ( ADW ) on Mr. 26 Irby (count Y). In assessing the sufficiency of the evidence, we view the evidence in the light most favorable to the gove rnment, k eeping in m ind the jury s right to determine credibility and to draw r easona ble infer ences f rom th e evide nce. Nelson v. United States, 601 A.2d 582, 593 (D.C. 199 1); Lawson v. United States, 596 A.2d 504, 509 (D.C. 1991). It is only where there is no evidence upon which a reasonab le mind might fairly conclude guilt beyond a reasonable doubt that the trial court may properly tak e the case from the jury. Williams v. United States, 357 A.2d 865, 867 (D.C. 1976) (citations omitted). With these long-established principles in mind, we consider appellant s contentions. A. Assault with Intent to Kill While Armed To convict someone of AWIKWA, the government must prove that the defendant committed an assault, that he did so with the specific intent to kill, and that he wa s arme d with a dange rous w eapon . See C RIMINAL J URY I NSTRUCTIONS FOR THE D ISTRICT OF C OLUMBIA, Nos. 4.09, 4.03 (4th ed. 1993). Intent is often inferred from s urroun ding cir cums tances. See Gray v. United States, 585 A.2d 164, 165 (D.C. 199 1); United States v. Bridges, 139 U.S. App. D.C. 259, 261, 432 F.2d 692, 694 (197 0). In this case, appellant argues that there was insufficient evidence to permit the jury to infer that he intended to kill Mr. Judge when he stabbed him. 27 The evidence showed that Mr. Judge was stabbed by appella nt during a struggle while attempting to escape from the house. Just before M r. Judge s escape, appellant had brutally and fatally stabbed Ms. Smith and Mr. Bost. Earlier that morning appellant h ad killed M r. Briscoe fo r merely re sisting the intruders demands, and then had told M r. Judge, That s what happens to mother fuckers that buck on me. Taking these facts in the light most favorable to the government, we hold that there was adequate evidence to enable the jury to infer that appellant intended to kill Mr. Jud ge as Judg e was attem pting to escape. Specifically, from the fact that appellant had already killed three people, one of whom had merely buck[ed] on him, th e jury could reasonab ly infer an inte nt to kill any of the other occupan ts of the house who m ight attemp t to counterv ail his wishes or to disobey an order (e.g., an orde r to rem ain lying on the f loor). See Lee v. United States, 699 A.2d 373, 383 -384 (D.C . 1997) (jury could find th at defenda nt intended to comm it assault and robbery when he entered a house from the fact that he assaulted and robbed the occup ants almost imm ediately after he entered). B. Assault with a Dangerous Weapon 28 ADW requires proof that an assault occurred 16 and that it was committed with a dangerous weap on. Williamson v. United States, 445 A.2d 975, 978-979 (D.C. 1982). Whether an object used in the assault is a dangerous weapon is a question of fact for the jury. Id. at 979; see also , e.g., Arthur v. United States, 602 A.2d 174, 177 -178 (D.C. 199 2). In this case, Mr. Settle, who w as lying next to Mr. Irby on the couch, testified that Irby was hit in the head by appell ant after telling Mr. Bost, Just do what the man said, Henry, and you ll be all right. Mr. Settle did not see appellant strike Mr. Irby, but he felt Mr. Irby sit up and then heard a lick. Imme diately thereafter, Mr. Irby sat back down. T his evidenc e, we hold , was sufficie nt to sustain a conviction of assault, but not ADW. There was no evidence that appellant struck Mr. Irby with any sort of weapon. Although Mr. Settle testified, I think they was pistol-whipping Henry [Bost], that statement was obje cted to by d efense cou nsel, and the objection was sustained by the trial judge. The prosecutor never followed up on the question, so the alleged pistol-whipping could not properly be 16 The jury was instructed only on attempted-battery assault. The government appears to concede that the lack of an instruction on intent-to-frighten assault, see Robinson v. United States, 506 A.2d 572, 574 (D.C. 1986), precludes affirmance of the conviction on the ground that the evidence was sufficient to prove an assault of that type. 29 considered by the jury. Because Mr . Settle did not actually see Mr. Irby get hit, he could not testify as to w hat object, if any, appellant might have used to strike him.17 Thus the government failed to prove that a weapon was used, and appellant s ADW conviction must be reduced to simple assault, a lesser included offense of ADW. See Gathy v. United States, 754 A.2d 912, 919-920 (D.C. 2000) (reducing conviction of greater off ense to lesse r included o ffense); Zellers v. United States, 682 A.2d 1118, 11 22 (D.C. 1996 ) (same); Austin v. United States, 127 U.S. App. D.C. 180, 191-1 94, 382 F.2d 12 9, 140-143 (196 7) (same). IV Appellant contends, and the government agrees in part, that several o f his convictions merge. W e hold that appellant s two convictions of first-degree burglary while armed (counts B and C) merge with each other, see Stewart v. United States, 490 A.2 d 619, 62 6 (D.C. 19 85); that app ellant s felony murder convictions regarding Ms. Sm ith (count Q) and Mr. Bost (count T) merge with the respective premeditated murder convictions regarding Ms. Smith (count S) and Mr. Bost (count 17 Although the medical examiner testified that Mr. Bost had abrasions consistent with blunt force traum a, this evidence was no t sufficient to support an inference th at a dange rous wea pon wa s used to ass ault Mr. Irby. 30 V), see Byrd v. United States, 510 A.2d 1035, 1037 (D.C. 1986) (en banc); and that appellant s conviction of felony murder for the killing of Mr. Briscoe (count N) merges with the convictions of first-degree burglary upon which it was predicated (counts B and C), see Thacker v. United States, 599 A .2d 52, 6 3 (D.C . 1991) . We therefore vacate all of the sentences and remand the case to the trial court for resente ncing. See Thorne v. United States, 471 A.2d 247 , 249 (D.C. 1983 ). Appellant also argues, however, that his two PFCV convictions merge, citing our decision in Morris v. United States, 622 A.2d 1116, 11 29 (D .C.), cert. denied, 510 U.S. 899 (1993), which holds that two con victions of PFCV merge when the underlying offenses also merge. The government contends that the PFCV convictions do not m erge and th at Morris is distinguishable. We agree with the governm ent. In Stevenson v. United States, 760 A.2d 1034 (D .C. 2000), th is court held that multiple convictions of PFCV do not merge so long as they are not predicated on a single violent a ct. Id. at 1036. W e have ad opted the fork in the ro ad test to determine whether two convictions are based on the same act: If at the scene of the crime the defendant can be said to have realized that he has come to a fork in the road, and nevertheless decides to invade a different interest, then his successive 31 intentions make him subject to cumulative punishment . . . . Id. at 1037 (quoting Spain v. United States, 665 A.2d 658, 660 (D.C. 199 5)); accord , e.g., Gardner v. United States, 698 A.2d 990 , 1002-1003 (D.C. 1997); Owens, 497 A.2d at 10961097. In the case at bar, one of appellant s PFCV convictions is predicated on the first-degree b urglary cha rge, while the other is based on the armed robbery charges relating to Mr. Judge and Mr. White. Unlike the convictions in Morris, these underlying conviction s do not m erge beca use they inv olve different v ictims. See Stevenson, 760 A.2 d at 1035 n .2; Hanna v. United States, 666 A.2d 845, 855 (D.C. 1995). Furthe rmore , the evidence also show s that the underlying conv ictions were not based on a single violent act. Appellant came to a fork in the road after he committed the burglary by entering the house. At that point, he had the opportun ity to stop and reconsider his decision to continu e in his c rimina l enterpr ise. See Stevenson, 760 A.2d at 1037-1038. That moment was his fork in the road.. He could have turned arou nd and left th e house, bu t instead he e lected to pro ceed with the robberies. Because the robberies and the burglary were not part of a s ingle violent act, the PFCV convictions upon which they were predicated do not merge. 32 V Appellant also appeals from the denial of his § 23-110 motion claiming ineffective assistance of coun sel. To succeed on such a claim, appellant must show, first, that cou nsel s p erform ance w as defic ient, and second, that the deficient performance prejudiced the defense in such a w ay as to undermine confidence in the outcome of the ca se. Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. at 700.18 A. Failure to Cross-Examine Mr. Judge The bulk of appellant s ineffective assistance claim is based on the notion that his trial couns el failed to conduct any meaningful cross-examination of Edward Judge even though he had numerous grounds on which to impeach Mr. Judge s testimony. Mr. Judge was arguably the governmen t s key witne ss: only he w as able 18 Appellant s motion w as filed alm ost three yea rs after his trial. In the interim, appellant s trial counsel died and was therefore not available to testify at the hearing. Althou gh this fa ct is not d ispositiv e, it is worth mentioning that we have rarely, if ever, found ineffective assistance w hen counsel has n ot gone on record with his rea sons for the way he conducte d the trial. 33 to peer from underneath his blanket to see what was happening, and only he was able to identify appellant as the murderer. Appellant characterizes Mr. Judge as someone who came across as very sure of himself and argues that his counsel had significant impeachment evidence available w hich wo uld have underm ined Judge s credibility. We are not persuaded. Appellant first contends that counsel should have cross-examined Mr. Judge about his identification. At trial Mr. Judge stated tha t he was able to identify appellant as the intruder because I recognized his voice. In his statement to the police, however, Mr. Judge said that the taller intruder was wearing a device to alter his voice19 and that h e was not able to match a face with the voice until several weeks later. Appellant also notes that Mr. Judge told the police that Mr. Robinson pressured him about the identity of the intruders before he talked to any police officer. Although these facts may undermine Mr. Judge s identification of appellant in some measure, they are no t sufficient to ca st doubt on the outcom e of the trial. The governm ent had a stro ng case ag ainst appellan t even with out Mr. Judge s 19 Mr. Settle also testified before the grand jury that the intruder s voice was m uffled. He m ade no m ention of this a t trial. 34 identification testimony. Appellant owned the blue jump suits; he was seen wearing one of them on the night before the murders; he was of the same height and build as the taller of the intruders; and he admitted that he made the 911 call, using a false name. Additionally, Mr. Judge w as not equ ivocal in his identification o f appellant. He identified photographs of him to the police; he identified him in open co urt before the jury; and he stated, T here is no d oubt in m y mind a bout [appellant s] being the person that was there. Although the facts offered by appellant in his § 23-110 motion may weaken Mr. Judge s identification to a certain extent, we are not convinced that they undermine it to such a degree that there was a significant chance of a different o utcome in the trial. Appellant also criticizes his trial counsel for failing to cross-exam ine Mr. Judge about his motive for testifying. At trial Mr. Judge stated that he r eturned to the District of Columbia after leaving town because he had nightmares which caused him to come back and turn my self in to the po lice departm ent. But, ac cording to the police investigation report, Mr. Judge was arrested for violating his probation and agreed to discuss the murders only a fter that arrest. 20 Mr. Judge also told the 20 Mr. Judg e also stated, however, that he c alled the police at his wife s urging twice before his arrest, but that he hung up the phone after he was put on hold. 35 police that the reason he did not come to them immediately after the murders was that he was concerned about his parole violation, not that he was afraid of appellant as he testified at trial. Although some of these facts might have been useful for impeach ment, appellant has not shown that the outcome of the trial would have been different had the jury learned this a dditional information . As we h ave pointe d out, the government had a strong case, and Mr. Judge never wavered in his identification of appellan t. Appellant next claims that his trial counsel should have questioned M r. Judge about the details of his account of the murders. At trial Mr. Judge testified that the intruders were wearing gloves a nd that the handle of the intrud er s knife was brown. Mr. Judge initially told the police, however, that the intruders were not wearing gloves and had stubby fingers. He also said that the knife handle was white. These discrepancies, in our view, involved o nly minor details and would not have affected the outcom e of the trial. Moreover, these details do not relate to the voice and beha vior of the intru ders including, in particular, the fact that the intruder who committed the murders was hard of hearing, as was appellant. Those were the characteristics that enabled Mr. Judge to identify appellant, whom he had seen every day for m onths, listening to him talk a nd have c onversatio ns with 36 various people. Counsel s failure to cross-examine Mr. Judge on these minor points did not cause any significant prejudice to appellant s case. Finally, appellant argues that his trial counsel should have confronted M r. Judge about a statemen t he mad e alleging tha t appellant rap ed Kim berly Sm ith before he killed her. Appellant correctly points out that there was no information to support such an allegation in the medical examiner s report. Mr. Judge s statement about the rape, however, came as a non-responsive answer to a question by the prosecutor, and the prosecutor (wisely) never followed up on it. Additionally, appellant was not charged w ith rape, and any sugg estion of rap e was im material to the crimes with which he was charged. For these reasons we conclude that counsel s failure to cross-examine Mr. Judge on this point had no effect on the outcom e of the trial. B. Other Assertions Appellant also contends that his counsel was ineffective in other respects. First, he asserts that counsel was deficient for failing to cross-examine several government witnesses about their bias against appellant. Several of the government witnesses were close friends of one an other and d id not get alo ng with ap pellant, 37 including Keith Robinson (whom appellant initially accused o f the murd ers), Evette Tinch (who was romantically involved with Mr. Robinson), and Deborah Conyers. Appellant also points out that many of those witnesses would no longer owe him drug debts if he were incarcerated. Although the bias of the government witnesses was an impo rtant point for c ross-exam ination, enou gh inform ation abou t their potential biases had already been brought out by the government on direct examination. Further questioning by appellant s counsel would have added little or nothing of substance to what the jury had already heard. Appellant maintains that his coun sel was de ficient in failing to ask Mr. S ettle whether he knew if M r. Bost and Ms. Smith w ere indebted to other individu als. In his grand jury testimony, Mr. Settle stated that he believed the killing was a contract on Mr. Bost and Ms. Smith because they had a reputation for robbing people. Appellant claims that h is counsel shou ld have bro ught this info rmation o ut at trial. Despite Mr. Settle s testimony to the grand jury, however, such evidence suggesting that the murders of Bost and Smith might have been committed by a hypothetic al, unidentified person who may have had a motive would not have been admis sible. See Gethers v. United States, 684 A.2d 1266, 1271-1272 (D.C. 1996), cert. denied, 520 U.S . 1180 (19 97); see also Winfield v. United States, 676 38 A.2d 1, 4-5 (D.C. 1996) (en banc). Consequently, counsel s f ailure to ask S ettle about the d ebts of Bo st and Sm ith did not pre judice app ellant. Appellant argues that his counsel should have emphasized the intruders lenient treatment of Sharon Smith, w ho was th e sister of Ke ith Robins on. Ms. S mith was never ordered to disrobe as the other hostages were, and appellant argues that the gentler treatment afforded h er by the intruders implicates Mr. Robinson in the criminal enterpr ise. Such an im plication is, at be st, tenuous an d ultimately speculative. Moreo ver, given th e strong cas e against ap pellant, it is highly unlikely that the alleged lenien cy show n to Sharo n Smith, e ven if coun sel had flagg ed it for the jury s atten tion, would have had any significa nt effect on th e verdict. Next, appellant contends that counse l was deficie nt in failing to req uest a second-degree murder instruction with regard to the stabbing of Mr. Briscoe. He speculates that since the jury acquitted him o f the premeditated m urder of Mr. Briscoe and found him guilty only of felony murder, it may have likewise acquitted him on the felony murder charge and found him guilty of second-d egree m urder if given the opportunity. We reject this contention. Regardless of whether a seconddegree murder instruction w ould have been app ropriate on th e facts presented, there 39 was surely sufficient evidence to support a conviction o f felony murder. 21 Appellant cannot now speculate that the jury might have ignored that evidence and found differently if it had been given a second-degree murd er instru ction. See Nelson, 601 A.2d at 595. Finally, appellant alleges that his counsel prejudiced his case by giving a deficient closing argument. Co unsel s closing arg ument c onsisted m ainly of a fab le warning the jurors not to rush to judgment on circumstantial evidence and reminding them of appellant s alibi defense. Appellant argues that counsel should instead have addressed or contested the poin ts made b y the prose cutor in his su mma tion, and in particular that counsel should have explained why appellant gave a false name during the 911 call. Although reasonable persons may disagree about the effectiveness of counsel s argument, we cannot say that it was so inadequate or deficient as to put the o utcome of the trial in doubt. Indeed, as the government stresses, the rhetorical device [of the fable] aided in driving home [counsel s] theme that careful consideration of all the evid ence w ould co mpel a cquittal. The fact that it did not res ult in a total or pa rtial acquittal w as not cou nsel s fault, but rather was due to the government s strong case. 21 Appellant does not contest the sufficiency of the evidence on any of the murder counts. 40 Considering all of these allega tions together, we agree that the performance of appellant s trial counsel, although it may ra ise some questions a bout counsel s tactics, was not so prejudicial as to entitle appellant to relief under D.C. Code § 23-110.22 The ev idence of guilt w as stron g. Appellant, the primary seller of crack cocaine at Mr. Irby s house, had threatened to kill Mr. Bost over a drug debt, and the intruders were spe cifically lookin g for him and his girl friend, Kimberly Smith, who offered to pay and make it up before she too was killed. Appellant was of the same height and build as one of the intruders; he had a hearing deficiency consistent with the behavior of one of the intruders; he owned and was seen wearing, just hours before the crime, a blue jump suit like the ones the intruders wore; and he possessed a gun similar to the one used in the crime. Finally, Mr. Judge identified appellant as one of the intruders by his voice and mannerisms and by the fact that he had seen appellant at Irby s hou se every day for months before the murders. 22 The government argues that counsel s performance was not deficient because all of appellant s specific claims of ineffective assistance involved tactical decisions in which counsel is strongly presumed to have rendered adequate assistance and ma de all significan t decisions in th e exercise o f reasonab le professional judgm ent. Strickland, 466 U.S. at 690. The government further poin ts out that Mr. Ju dge wa s a highly sympathetic witness and that there was a very real possibility that harsh cross-examination could inflame the jury against appellant. See United Sta tes v. Clayborne, 166 U.S. App. D.C. 140, 146, 509 F.2d 473, 479 (1974) (the decision to cross-examine is peculiarly one for defense counsel ). Although counsel s performance was at times unusual, we refrain from deciding whether it was deficient because we are satisfied that appellant has not shown prejud ice. See Strickland, 466 U.S. at 700. 41 Despite inconsistencies in his reports to the police and his grand jury testimony about some of the details o f the event, Mr. Judge never wavered in his identification of appellant; indeed, he told Detective Archer at the outset of the investigation, When I heard his voice, I knew th e voice righ t off e ven befo re he could recall appellant s name. Given all of the evidence, we find ourselves in full agreement with the trial court s conclusion that there is not a reasonable probability that any error [b y coun sel] affec ted the o utcom e of this tr ial. VI We affirm all of appellant s convictions on the merits, except tha t we hold that his ADW conviction must be reduce d to simple assault, for the re asons stated in part III-B of this opinion. We also affirm the denial of appellant s § 23-110 motion. We vacate all of appellant s sentences and remand the case to the trial court for resentencing in accordance with part IV of this opinion, and for sentencing de novo on the convic tion of simp le assault as a lesser included offense of ADW under count Y of the in dictment. So ordered.
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