THOMPSON, Associate Judge:
On January 18, 2008, at about 1:00 p.m., a woman approached a United States Capitol Police ("USCP") Officer near the intersection of Delaware and D Streets, N.E., and told the officer that a man with a gun had asked her for directions to the United States Supreme Court. From the USCP command center, an officer watched the video feed from surveillance cameras in the area around the U.S. Capitol and saw images of a man walking with a shotgun. As shown on a recording from those cameras, USCP officers stopped and arrested the man — appellant Michael Gorbey — at the intersection of First and D Streets, N.E. At the time he was stopped, appellant had a shotgun in his hand and a sword on his back. Twenty-seven shotgun shells were stored in the bulletproof vest he was wearing, and he also was in possession of hunting knives and a .45-caliber round, which officers found in the backpack he was carrying. Appellant claimed that he was en route to a meeting with Chief Justice John Roberts of the United States Supreme Court.
Minutes after appellant was stopped, USCP officers found a truck illegally
The USCP officers moved appellant's truck to a secure storage area at 800 North Capitol Street, N.W., and, on February 8, 2008, conducted another search of the passenger compartment, pursuant to a search warrant. After moving the passenger seat forward, officers found an object that one of the officers described as a "home-made bomb." The object (hereafter referred to as the "device") consisted of "a metal can spray painted red" and "a clear bottle filled with what looked like lead pellets," and "everything was duct taped." After the bomb squad used a tool to "disrupt" the device, officers completed a search of the passenger compartment and cab of the truck. They recovered a "large amount" of black powder; firecrackers; lighters; primer or percussion caps; shotgun shells and shotgun cartridges; 550 rounds of long rifle ammunition; 200 rounds of other ammunition of various calibers; a rifle scope; and the (disrupted) components of the device (i.e., the metal can, duct tape, black powder, metal pellets, and glass fragments).
Appellant was charged and subsequently convicted, on May 16, 2008, of fourteen separate offenses in connection with the events described above: unlawful possession of a firearm by a convicted felon; two counts of carrying a dangerous weapon outside the home or business (shotgun and sword) ("CDW"); possession of an unregistered firearm ("UF"); eight counts of unlawful possession of ammunition ("UA"); manufacture, transfer, use, possession, or transportation of explosives for an unlawful purpose;
Before us now are consolidated appeals: appellant's direct appeal from each of his convictions and his appeal from the trial court's denial of his § 23-110 motion. The issues on appeal have been presented in opening and reply briefs filed by counsel, and in opening and reply briefs filed by appellant pro se.
For the reasons set out below, we reject the claim — advanced by counsel, but not by appellant in his pro se briefs — that the trial court abused its discretion by not ordering an evaluation of appellant's competence to stand trial and by permitting appellant to represent himself at trial. Our close review of the record persuades us that nothing presented to the trial court — neither the "aggregate of [relevant] indicia" nor any factor "stand[ing] alone," Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (internal quotation marks and citations omitted) — raised a substantial question about appellant's competence. We also conclude, however, that by the time the matter proceeded to sentencing, sufficient "red flags" had been raised that the trial court was required to conduct an inquiry (a so-called Frendak inquiry
We reject appellant's other challenges; however, we conclude that several of appellant's convictions merge, and we direct the trial court to vacate the affected convictions, including the conviction for possession of the .45 caliber round. Accordingly,
Due process "prohibits the criminal prosecution of a defendant who is not competent to stand trial." Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992); see also Drope, 420 U.S. at 171, 95 S.Ct. 896 ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."). The test for determining competency to stand trial is whether a defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him." Higgenbottom v. United States, 923 A.2d 891, 897 (D.C.2007) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)) (internal quotation marks omitted). "Where there is evidence raising a substantial doubt as to a defendant's competency to stand trial, the trial judge is under a constitutional duty to order a hearing sua sponte." Phenis, 909 A.2d at 152 (quoting Holmes v. United States, 407 A.2d 705, 706 (D.C.1979)) (internal quotation marks omitted); see also Clyburn v. United States, 381 A.2d 260, 263 (D.C.1977) (A trial court is "obligated to make or compel inquiry if it is in receipt of information which raises a bona fide doubt of defendant's competence."). In determining whether a competency hearing is warranted, factors such as a defendant's irrational behavior, demeanor at trial, prior medical opinions, evidence of mental illness, and representations by defense counsel are all relevant; courts must "examine the totality of the circumstances: all evidence should be considered together, no single factor stands alone." Gilbert v. Mullin, 302 F.3d 1166, 1179 (10th Cir. 2002) (internal quotation marks omitted).
"There are ... no fixed or immutable signs which invariably indicate the need for [the trial court to make] further inquiry to determine [the defendant's] fitness to proceed[.]" Drope, 420 U.S. at 180, 95 S.Ct. 896. Further, "`[n]ot every manifestation of mental illness demonstrates incompetence to stand trial[.]'" Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir.1996) (quoting United States ex. rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.1984)). For example, even where it appears that a defendant has a "delusional belief of government persecution," an evaluation of whether he was competent to stand trial must turn on a review of "the substance of [his] pro se filing[s]" and statements in court, whether he was "following the testimony," and whether he "was able to make relevant
Where a claim is made that the trial court erred by failing sua sponte to raise the issue of a defendant's competence to stand trial, "[o]ur review ... is limited to an examination of whether the trial court abused its discretion, the exercise of which we will not lightly disturb." Clyburn, 381 A.2d at 261, 262-63; see also Phenis, 909 A.2d at 152. We accord great deference to the trial court's inferences from its personal observations of, and conversations with, the defendant. Howard v. United States, 954 A.2d 415, 422 (D.C. 2008).
Through counsel, appellant argues that the trial court "ignored a series of red flags" that went up during the pre-trial and trial proceedings and that "signal[ed] a need to examine appellant's competency." We address each of these "red flags" in detail, explaining why we conclude that, whether considered separately or all together, they did not "inescapably call into question appellant's competence to stand trial[.]" Clyburn, 381 A.2d at 263.
The first claimed "red flag" is appellant's "conduct and appearance at the time of his arrest," including "his possession of an array of weaponry" and his claim that he had an appointment with the Chief Justice. We do not agree that these facts raised a substantial doubt about appellant's competency, because they did not signal that appellant might have lacked a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" or that he lacked a "rational or factual understanding of the proceedings against him."
The second "red flag" cited in the briefs consists of appellant's "insistence that his defense depended on presenting evidence that the FBI, CIA and Capitol Police (and later the trial court and the U.S. Attorney's Office) conspired against him" and his "attempts to introduce evidence of various civil lawsuits [he had] filed against these entities as proof of these conspiracies." The record — including numerous statements by appellant in open court and in some of his pro se filings — certainly demonstrates that appellant operated under the belief that there was a widespread government conspiracy directed at him. Appellant told the court repeatedly that while he had no knowledge of most of the items he was charged with possessing, "[t]he police conspired in saying that [he] did." He told the court that "this very prosecution office was involved, [and] this very FBI was involved" in the conspiracy, that the alleged WMD was "planted upon me 21 days after [the truck] was held in police storage," and that officers had "every reason to lie and say" that a bomb was found in the truck.
Nevertheless, in light of the entire record, we are not persuaded that appellant's
Earlier in the proceedings, standby counsel Jason Tulley had told the court ex parte that appellant had filed "lawsuits against certain of the organizations that are involved in investigating the case" and that appellant might proceed on a bias theory, i.e., that "there was a bias for half of the folks who were involved." Tulley further explained to the court that when USCP bomb squad officers conducted a search of the truck before it was impounded, they found no destructive device, but that the truck did contain documents pertaining to appellant's pending lawsuit against the FBI; and that three weeks later, when investigators did an additional search, they found a destructive device, which, counsel told the court, "really does provide a solid legal foundation for some line" of bias inquiry.
Just as important, although appellant sought to employ a defense related to his conspiracy theory, he did not forgo other lines of defense. He made numerous oral motions and filed several handwritten motions, including a pre-trial motion to suppress, many portions (if not the entirety)
Further, when appellant cross-examined Special Agent Mark Crawford during the pre-trial hearing on the motion to suppress items found in the truck, he asked questions focusing on whether the canines' display of "interest" in a location is always indicative of explosives — questions that were directed at whether the dogs' response gave officers reason to believe that there were exigent circumstances that justified searching the truck without a warrant. Appellant also challenged whether the alleged explosive device recovered from his truck qualified as a "device" for purposes of the WMD and explosive device statutes, and he questioned his expert witnesses on the same issue. He asked the court to permit "a report of our own [to be] done on the device ... by an independent technician" and to permit testing to determine whether some of the black powder found in the truck came from shotgun shells which had been disrupted by the bomb squad's remote-control tool, rather than from the alleged explosive device. During trial, appellant objected to the government's submitting into evidence a final crime scene report that was different from the draft report that had been shared with the defense at an earlier point. He questioned an evidence technician about whether there were identifiable fingerprints on the shotgun. He argued to the court that he innocently possessed the .45 caliber ammunition found in his backpack, prompting the prosecutor to brief the elements of an innocent-possession defense.
The briefs assert that the third "red flag" that should have caused the trial court to question appellant's competence was his "inability to consult with his attorneys, as demonstrated by his cycling through two court-appointed attorneys before demanding to represent himself." This assertion exaggerates and mischaracterizes the record.
The record does not support a conclusion that it was appellant's inability to work with counsel that led to his "cycling through" his trial attorneys. PDS lawyer Larry Coopers represented appellant at his initial (and very brief) court appearance on January 19, 2008. The record reveals nothing about why Coopers made no further appearances on appellant's behalf.
Whatever the full explanation for Mullin's departure as counsel, by February 14, 2008, Mullin had been replaced by PDS lawyer and standby counsel Jason Tulley. Nothing in the record indicates that appellant had difficulty consulting with Tulley. To the contrary, during an April 15, 2008, hearing, appellant agreed that it was "fair to say" that he had a "good working relationship" with standby counsel Tulley. The court later noted that appellant had indicated that he and Tulley had "worked
From all that the record shows, appellant thereafter cooperated and regularly consulted with Ohm throughout the pre-trial and trial proceedings. The briefs correctly note that appellant expressed some distrust of attorneys; when the trial court asked appellant why he wished to represent himself, he replied, "Technically, my case pertains to several attorney associations, and also I feel that the only way that I will receive a proper defense is if I do so myself." However, the record also makes clear that appellant relied on and put his trust in standby counsel Ohm. For example, appellant agreed that it would be acceptable for the government to provide discovery directly to Ohm, who could bring the discovery to appellant to ensure that he received it while in jail. Appellant also told the court that he had copies of his proposed trial exhibits for standby counsel, which counsel could provide to the government.
Further, the transcript from the suppression hearing contains multiple examples of appellant's consultation with standby counsel. For example, at one point, appellant explained to the court why his objection to an item of evidence had been delayed, saying, "Your Honor, I should have, while [the prosecutor] was referring to the item, raised an objection. I was speaking with [standby counsel] here in concern of the item." During the cross-examination of Special Agent Crawford, appellant said, "How about I just let [standby counsel] handle the statement part [i.e., the argument regarding whether appellant's statement about an appointment with the Chief Justice was admissible], and then I'll go back to questioning the witness if that's possible." At the end of the cross-examination, appellant stated that he had "no further questions, unless [standby counsel] has any questions on my behalf that he'd like to ask."
In addition, appellant and Ohm coordinated their efforts during jury selection
Not only is the record replete with evidence that appellant cooperated with his standby counsel, but also the court recognized on the record that appellant and Ohm worked well together. On April 22, 2008, the court remarked that "[y]ou [i.e., appellant] and Mr. Ohm seem to have a good working relationship, and that's fine. I'm glad to see that." In addition, after the jury rendered its verdicts, the court appointed Ohm to represent appellant during the post-trial proceedings, at appellant's request. In light of all the foregoing, we cannot say that appellant's having "cycled through" a number of PDS lawyers should have caused the court to inquire into appellant's competency.
The next "red flag" on which the briefs focus is appellant's testimony that a friend named "Gad Cap" was the man seen in the USCP surveillance video. Appellant testified that after he made a phone call to the Supreme Court on January 18, 2008, and verified that he "was to meet some people" concerning "legal matters," he left Mount Vernon headed for the District of Columbia with Gad Cap, a friend who bore a strong resemblance to him.
We cannot say that the testimony must have evinced to the trial court that appellant had "a fundamental misunderstanding of the `nature and object of the proceedings.'" United States v. Arenburg, 605 F.3d 164, 171 (2d Cir.2010) (quoting Drope, 420 U.S. at 171, 95 S.Ct. 896); see also United States v. Reed, 668 F.3d 978, 987 (8th Cir.2012) ("Reed's lengthy colloquies with the court demonstrated that he was committed to pursuing untenable defenses, but not that he lacked the mental competence to stand trial and to knowingly waive his right to counsel."). We have no doubt that appellant's testimony caused the trial court (and the jury) to conclude that appellant
The final "red flag" that the briefs argue should have caused the trial court to question appellant's competence to stand trial relates to "the concerns that PDS lawyers and the government expressed about appellant's mental health." Again, we think the argument overstates the record. We discuss the various statements that the briefs cite.
On January 23, 2008, at a preliminary hearing before Magistrate Judge Harnett, Mullin responded to an objection to a question she had posed to the witness about the "papers or documents recovered" from the truck. Mullin told the court that she had a good faith basis to believe that the paperwork "would undermine the Government's claim of dangerousness" and "indicate maybe Mr. Gorbey's mental state at the time." Mullin's reference to appellant's "mental state" did not clearly apprise the court of any concern about appellant's competency.
Later in the January 23, 2008, proceeding, Magistrate Judge Harnett asked Mullin during an ex parte bench conference whether she "want[ed] to tell me anything about [appellant's] mental health situation[.]" Mullin responded "not at this time" and said, "my client doesn't want to pursue that route." However, she advised the court that it "could order a forensic. I just can't ask for it."
At a status hearing on February 4, 2008, before the trial judge, Mullin told the court that "this is a case where normally I would have [the defendant] evaluated and proceed that way, but he won't permit me to and I think that maybe if he's got a lawyer that he trusts we might be able to go that route." This comment, about what counsel would "normally" do, was not sufficiently specific to appellant to apprise the court that counsel had a concern about his competence to stand trial.
The next mention in the record of appellant's mental status was in the government's March 12, 2008, discovery letter to standby counsel Tulley, which stated that "[the government] will not extend a plea offer to your client without learning more about your client's current mental state. Accordingly, your client will have to consent to a psychological evaluation, and disclosure to the government of the results of that evaluation, before the government will extend a plea offer in this case." The prosecutor referred to this letter during trial on May 13, 2008, telling the court during a bench conference that "one of the reasons the government had asked for a screening earlier" was that "[t]here's a sense of self-importance that Mr. Gorbey believes that he was the focus of attention, and as the Court and the jury has heard in every single witness, nobody knew who Mr. Gorbey was prior to January 18, 2008."
The lawyers' next reference during trial to appellant's mental health was the prosecutor's request that the court give the jury an instruction "regarding [the] defendant's failure to raise an insanity defense."
The trial court took the prosecutor's comment as "concern[ ] that the jurors might question Mr. Gorbey's mental state and use that as a basis for nullifying," not as concern that appellant lacked a rational understanding of the proceedings. The court's response to the comment was that jurors "might just as well go the other way and say Mr. Gorbey's outbursts are deliberate, willful and intentional, and he knows what he is doing and decide based on
The final comments to which appellant's briefs point as a "red flag" occurred during an exchange after appellant sought to introduce into evidence documents that he claimed would prove that, prior to his arrest, he had contacted law enforcement officers about shotgun shells that had been used in attempts to murder him. The prosecutor remarked:
The court responded, "I don't think I have a legitimate basis to order a forensic at this time." This exchange, which was the only instance in which any of the lawyers asked the court to order a mental health evaluation, would give us some pause were it not for the fact that the prosecutor told the court at a later point in the trial that "[t]he defendant is competent." That comment suggests that, in the earlier request for a "forensic," the prosecutor was seeking to protect the record, not expressing concern about appellant's competency.
In light of all the foregoing, we cannot conclude that the trial court abused its discretion in failing to order a competency evaluation during trial. It is not just that the evidence that appellant was fully attuned to what was going on during the trial and pre-trial proceedings, and that he cooperated with his standby counsel and assisted in his defense, outweighed evidence of appellant's possible incompetence. Rather, we conclude, the trial court really was not presented with any substantial evidence of incompetence. We are satisfied that the briefs — in pointing to "red flags" of incompetence — either mischaracterize the information that was before the court or overlook how appellant's statements, testimony, arguments, and strategic manner of working with his standby counsel signaled his competence to stand trial, rather than the opposite. The record fully supports the trial court's statement (in its ruling on appellant's § 23-110 motion) that appellant "remained engaged in his defense throughout the trial, consulted with advisory counsel, and displayed a clear understanding of the proceedings
"The Supreme Court has rejected `the notion that competence ... to waive the right to counsel must be measured by a standard that is higher than (or even different from)' the standard for competency to stand trial." Phenis, 909 A.2d at 155 n. 13 (quoting Godinez v. Moran, 509 U.S. 389, 398, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). A month after appellant's trial, however, in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), the Supreme Court clarified that a defendant may be mentally capable of standing trial "yet lack the capacity to stand trial without benefit of counsel." Id.
At the same time, the Edwards Court declined to adopt a "specific standard" for mental competence for self-representation, stating that it would leave to trial judges, who "will often prove best able to make more fine-tuned mental capacity decisions," the tasks of "tailor[ing] to the individualized circumstances of a particular defendant[,]" and of "tak[ing] realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so." Id. at 177-78, 128 S.Ct. 2379. Thus, after Edwards, the observation we made in Abney v. United States, 464 A.2d 106 (D.C.1983), still applies: there is no "precise litany of questions" a trial court must ask before accepting a waiver of counsel. Id. at 108.
Through counsel, appellant argues that the trial court erred by failing to "evaluate his mental health in connection with his... proceeding pro se" and by "neglecting
We begin by noting that standby counsel Tulley told the court during pretrial proceedings that appellant was "competent, [and] making an intelligent, voluntary, and knowing waiver [of counsel]" — a statement to which the trial court was entitled "to give some credence."
Further, during each phase of the trial proceedings, appellant (who, the court observed, is a "very bright man") demonstrated his experience with the trial process as he handled an assortment of trial tasks.
Notwithstanding appellant's obvious experience with trial proceedings, when the court asked appellant why he wished to represent himself and appellant answered that "the only way that I will receive a proper defense is if I do so myself," the court responded by strongly cautioning appellant about the "dangers and disadvantages"
The court also took steps to protect appellant's right to a fair trial.
Thus, although the trial court did not have the benefit of Edwards, the record reflects that the trial court "tailored" the manner of proceeding to appellant's "individualized circumstances" and "t[ook] realistic account of [appellant's] mental capacities[.]" Edwards, 554 U.S. at 177, 128 S.Ct. 2379. We are satisfied that the court, which had "the opportunity to observe and interact with [appellant] at length,"
Appellant's competence to stand trial is separate from the question "whether the defendant has made an intelligent and voluntary decision [to forgo an insanity defense]." Frendak, 408 A.2d at 367. As described in note 5 supra, this court held in Frendak that "whenever the evidence suggests a substantial question of the defendant's sanity at the time of the crime, the trial judge must conduct an inquiry designed to assure that the defendant has been fully informed of the alternatives available, comprehends the consequences of failing to assert the defense, and freely chooses to raise or waive the defense." 408 A.2d at 380; see also Phenis, 909 A.2d at 155 (noting that Frendak is concerned with whether the defendant recognizes "the availability of the defense and whatever advantages — as well as disadvantages — it may offer to defendant's case."). "The scope of [a Frendak ] inquiry ... will vary according to the circumstances present in each case[.]" Patton v. United States, 782 A.2d 305, 312 (D.C.2001) (internal quotation marks omitted).
Through counsel, appellant contends that even though his "bizarre behavior at the time of and following his arrest raised sufficiently a question as to his sanity at that time," the trial court conducted only the most cursory inquiry, which failed to satisfy the requirements of Frendak. We agree that the trial court did not conduct the inquiry that Frendak envisions; as appellant's brief correctly asserts, the court did no more than confirm that appellant was, in fact, waiving the insanity defense.
"The quantum and nature of evidence that will trigger the obligation to conduct a Frendak inquiry is necessarily highly fact-bound and varies from case to case." Phenis, 909 A.2d at 155. Here, there was no evidence in the record that appellant had a history of mental illness;
While the facts of appellant's charged crimes were bizarre, that alone is not enough for us to conclude that, before or during trial, the trial court must have had a substantial doubt about appellant's sanity. Our opinion in Patton is instructive. There, the defendant, after "acting `jumpy' and handling a gun and a knife" and telling his niece to "stab him in the neck," had "without warning, stabbed his mother with a knife." Patton, 782 A.2d at 308. At the time of his arrest, the defendant "was acting kind of strange in that manner where we would ask him something and he would go off on a different subject." Id. During his preliminary hearing, he "was acting fidgety, pushing his chair away from the table, and repeatedly looking at the double doors of the courtroom[,]" and, "while a witness was testifying, he stood up when the judge was talking with the witness." Id. His "strange behavior culminated at the conclusion of the hearing, when he attempted to run from the courtroom and law enforcement officers apprehended him before he could escape." Id. A psychiatrist, who had briefly interviewed the defendant several months after the crime to determine his competency to stand trial, found that he "exhibited `severe antisocial
We held in Patton that even when there are "many hints of appellant's possible mental illness," a trial court does not abuse its discretion in failing to conduct a Frendak inquiry during trial when it has "conflicting information regarding appellant's mental condition." Patton, 782 A.2d at 314. We think it fair to say that the pre-trial and trial record in this case presented the trial court with (at worst) conflicting signals about appellant's mental condition at the time of the charged offenses. Accordingly, we cannot conclude that, prior to the sentencing phase of the trial proceedings, the trial court erred in accepting appellant's waiver of the insanity defense without having conducted the type of inquiry required under Frendak.
That brings us to the sentencing proceedings, as to which we reach a different conclusion. Through counsel, appellant highlights, as one of the "red flags" that should have caused the trial court to make further inquiry, the "PDS report raising mental health issues that was submitted to the trial court for sentencing consideration." In the paragraphs that follow, we describe that report and other developments that occurred as the matter proceeded to sentencing.
During a post-verdict proceeding on July 11, 2009, the court noted that appellant had asked that Ohm be appointed his counsel for sentencing, but had subsequently requested the appointment of new counsel. The court appointed (non-PDS lawyer) Donald Dworsky to represent appellant. During the same proceeding, the prosecutor noted that appellant had refused to meet with the pre-sentence report writer. When court convened again on August 1, 2008, appellant told the court that Dworsky was "ineffectively assisting [him]." At the bench, appellant asserted that all Dworsky had done was make arguments regarding the pre-sentence report and that he had not contacted appellant's family or individuals who had worked with him to be "material witnesses" for him. When the court responded that this was
The sentencing proceeding was held on August 15, 2008. At the beginning of the proceeding, Dworsky explained that he had been "discharged" by appellant and had filed a motion to withdraw as counsel.
Dworsky told the court that the result of his having filed the PDS Clinical Summary was that appellant "hasn't even talked to me, so he's not having any interaction with me." He further advised the court that appellant "doesn't want anyone to talk about his possible mental issues" and that Dworsky had "stepped over that line" by filing the PDS Clinical Summary with the court. Appellant told the court that he wanted the court to disregard the PDS Clinical Summary.
The court also heard and credited testimony from a representative of the Court Services and Offender Supervision Agency that appellant had "absolutely refused to cooperate with the pre[-]sentence report writer." When the court thereafter turned to the government for its sentencing recommendation, the prosecutor stated that
Thus, by the time of sentencing, the court — even though it declined to consider the information — had been presented with (1) a Clinical Summary from a mental health professional that called into question whether the conduct of which appellant was convicted was the result of a "mental health problem that significantly distorts his perception of reality" and his "resulting behavior"; and (2) a statement by the prosecutor, who spoke after having reviewed the Clinical Summary, that appellant's belief that he is the subject of a conspiracy had "compelled him to take the steps he took in this case" and caused him to "spiral out of control."
For the foregoing reasons, and because, in Part II infra, we reject most of the other arguments that appellant presents in challenging his convictions, we will remand this matter to the trial court for a Frendak inquiry.
When assessing the sufficiency of the evidence, we must "view the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." Freeman v. United States, 912 A.2d 1213, 1218-19 (D.C.2006) (quoting Curry v. United States, 520 A.2d 255, 263 (D.C. 1987)). "We do not distinguish between direct and circumstantial evidence, and the government is not required to negate every possible inference of innocence." Id. at 1219 (internal quotation marks omitted). Rather, "it is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction." Id. (internal quotation marks and alteration omitted).
In challenging the sufficiency of the evidence to support his CDW convictions, appellant contends that there was no proof that he intended to use the shotgun and sword, which he asserts was a souvenir, as dangerous weapons. We reject this claim because "[o]nly in cases where the charge of carrying a dangerous weapon is based on an item that has some useful natural purpose (other than to inflict injury) has this court required the government to prove that the defendant intended to use the object in question as a dangerous weapon." Wright v. United States, 926 A.2d 1151, 1155 (D.C.2007) (emphasis in original). Here, both weapons — a shotgun and a sword — have no natural purpose other than to inflict injury. Cf. State v. Harrell, 342 S.W.3d 908, 915 (Mo.Ct.App.2011)
Regarding his convictions for possession of a destructive device and attempted manufacture or possession of a WMD,
"Constructive possession of a weapon requires proof that a defendant (1) knew of the weapon's location; (2) had the ability to exercise dominion and control over it; and (3) intended to exercise such dominion and control." Taylor v. United States, 662 A.2d 1368, 1372 (D.C.1995). "The government may establish these elements by either direct or circumstantial evidence." Id. at 1372-73. Here, although appellant testified that he did not drive the truck into the District of Columbia, he did not dispute that the truck belonged to his girlfriend, Amy Toothman. Moreover, at the time of his arrest, appellant had in his pocket the keys to the truck and the truck's registration papers. Toothman identified the truck as belonging to appellant even though it was titled in her name, and she also testified that appellant drove the truck on January 18, 2008, and that he "[u]sually ... would not allow anyone else to drive [it]." Neff testified that appellant drove the truck to Neff's house the morning of January 18, 2008, and Charles Ponzoo, a friend of appellant,
The briefs next argue that the government failed to prove that "the object discovered in [the] truck ... satisfied the definition of a WMD [and an explosive device] according to the statute[s]," i.e., D.C.Code §§ 22-3154 and -4515a (b). The WMD statute prescribes punishment for any person who "attempts or conspires to manufacture or possess a weapon of mass destruction capable of causing multiple deaths, serious bodily injuries to multiple persons, or massive destruction of property[.]" D.C.Code § 22-3154(b). The statute defines "[w]eapon of mass destruction" to include "[a]ny destructive device that is designed, intended, or otherwise used to cause death or serious bodily injury," such as "an explosive," "[b]omb," or "[d]evice similar to any of th[ose] devices," or "[a]ny combination of parts either designed or intended for use in converting any device into [an explosive] device ... from which such device may be readily assembled." D.C.Code §§ 22-3152(12)(A)(i)(I) and (iii). The explosive device statute makes it unlawful to "manufacture ... possess, or transport any device, instrument, or object designed to explode or produce uncontained combustion, with the intent that the same may be used unlawfully against any person or property." D.C.Code § 22-4515a (b). We are satisfied that the evidence sufficed for the jury to convict appellant under both statutes.
The government presented testimony by FBI Special Agent Hickey, a forensic analyst in the FBI laboratory explosives unit, who examined the components of the device found in the truck as well as digital photographs of the device taken before it was disrupted. He testified that, although the can component had been split in two by the bomb squad's disruptive tool, he could see that there was a small hole in the bottom of the can that would have allowed a firecracker to be inserted "to get the energy from outside into the main charge." Inside the can was black powder, which Hickey explained is "a low explosive" which, if "exposed to a flame or a significant amount of energy, will immediately expend all its energy in bursts." Hickey further testified that "at least three f[eet] of duct tape"
On cross-examination, Hickey acknowledged that the black powder container he examined "is very similar to the container that one would buy black powder in," and that he could not say, based on the photos in evidence, whether the black powder found on the floor bed of the truck "was actually ever inside the container." He further acknowledged that the device was "fairly small" and that he could not "say that it was a functional IED at the time that it was disrupted [by the bomb squad]." He agreed that a fusing system would have been required to initiate the device, and that he did not know whether there was a fusing system in place at the time the bomb squad disrupted the device. Hickey testified, however, that even without a fusing system, the device could readily have been converted into an IED: a "functioning IED could be readily assembled from the components" examined in this case.
The jury could reasonably infer from the foregoing testimony that the device was, within the meaning of D.C.Code § 22-3154(b), a destructive device or weapon "capable of causing multiple deaths [or] serious bodily injuries to multiple persons," and that it was "an "explosive," "bomb," or, at the very least, a "combination of parts" "from which [an explosive or bomb] may be readily assembled." The jury could also reasonably find that the components found in the truck constituted, within the meaning of D.C.Code § 22-4515a (b), a "device, instrument, or object designed to explode or produce uncontained combustion[.]" Even though the device had no internal fusing source, officers found firecrackers in the truck, which, according to Hickey's testimony, could have been fitted in the device and used for that purpose.
Finally, appellant argues that the evidence did not suffice for the jury to find that he "understood the nature of the object, or that he knew it was a destructive object capable of causing serious bodily injury or significant property damage," as
Appellant argues that he was denied his constitutional right to be tried by an impartial jury because the court (1) declined to strike a juror who "express[ed] animosity[]" to the rest of the jurors and (2) subsequently denied appellant's request for a mistrial. We reject this argument. During a break in the trial, the juror in question "expressed some frustration [to Ms. Franklin, the deputy clerk,] ... that the defendant was calling witnesses who were saying the same thing over and over again." The next day, the trial judge conducted a voir dire of the juror. The juror told the court that he had not said "how [he] felt" to anybody besides Ms. Franklin, and he assured the court that any frustration about the length of the trial had "absolutely not" affected his ability to be fair and impartial.
We have held in similar circumstances that it is "sufficient that the juror asserts he or she is able to lay aside his or her impressions and render a verdict based on the evidence presented in court and the court assures itself that this assertion is valid." Welch v. United States, 466 A.2d 829, 836 (D.C.1983) (citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). We discern no error here in the trial court's determination that the juror could be fair and impartial, recognizing that this determination, "in which demeanor plays such an important part, is particularly within the province of the trial judge." Id. (quoting Rease v. United States, 403 A.2d 322, 325 (D.C.1979)). Moreover, "a defendant who claims that he was deprived of a trial before an impartial jury must sustain that claim not as a matter of speculation but as a demonstrable reality[.]" Id. at 836 (internal quotation marks omitted). Here, nothing in the record suggests that the juror harbored any animosity toward appellant or had otherwise lost the ability to view the case through a fair and impartial eye. Appellant's argument rests on mere speculation about the juror's feelings toward him. Accordingly, we cannot conclude that the court abused its discretion in denying appellant's motion for a mistrial.
As we have already noted, our holdings above make it unnecessary for us to address appellant's argument, made through counsel, that the counsel who assisted him during the pre-trial and trial proceedings were ineffective in failing to request a hearing to determine whether he was competent to stand trial and to represent himself, and in failing "to determine the appropriateness of pursuing mental health-related defenses." See notes 28 and 51 supra. In his pro se briefs, appellant advances the additional argument that the trial court erred in denying without a hearing the claim, presented in his D.C.Code § 23-110 motion, that standby counsel Ohm was ineffective in failing to secure a rebuttal witness to address the explosive device and WMD charges.
The record shows that Ohm initially assumed some responsibility for obtaining an expert witness to "to rebut [Agent] Hickey's proffered expert testimony."
Appellant contends that his convictions for possession of an explosive device (Count 14) and attempted manufacture or possession of a WMD (Count 15) should merge. "In determining whether multiple convictions are constitutionally permissible for criminal conduct which violates two distinct statutory provisions, absent a clearly contrary legislative intent, we apply the Blockburger test." Sanchez-Rengifo v. United States, 815 A.2d 351, 354 (D.C.2002). Under Blockburger, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299,
Here, because each of the offenses related to the device required proof of an element which the other did not, the offenses do not merge. A conviction for "possession of an explosive device" requires proof that a defendant manufactured, transferred, used, possessed, or transported any device designed to explode or produce uncontained combustion, with the intent to use that device unlawfully against another person or property. A conviction for "possession of a WMD" does not require proof that the device be designed to explode or produce uncontained combustion. A WMD conviction requires proof that the device was capable of causing multiple deaths or serious bodily injuries to multiple persons, or massive destruction of property. See D.C.Code § 22-3154. By contrast, "possession of an explosive device" need not entail a device with the potential to seriously injure or kill multiple victims. Thus, these two offenses do not merge.
Appellant's convictions for possession of a firearm by a convicted felon, CDW, and UF also do not merge, because each requires "`proof of an additional fact which the other offense does not'"
Appellant raises several other arguments in his pro se briefs that we address only summarily. He claims that his Second Amendment rights were violated when he was found guilty of possession of a firearm by a convicted felon. The short answer to that claim is that the Supreme Court has "made it clear in [District of Columbia v.] Heller [554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)] that [its] holding did not cast doubt on such longstanding regulatory measures as `prohibitions on the possession of firearms by felons[.]'" McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010).
Appellant also contends that the trial court did not have subject matter jurisdiction because he was arrested by federal authorities on federal property. We reject this argument, as the Superior Court has jurisdiction over cases involving violations of the D.C.Code, and the criminal provisions of the D.C.Code apply to all property owned by the United States in the District of Columbia unless such property is expressly exempted from coverage by Congress. Cf. McEachin v. United States, 432 A.2d 1212, 1216 (D.C.1981) (citing cases recognizing the Superior Court's jurisdiction over cases involving District of Columbia Code offenses committed on the grounds of federally owned property such as the Veterans Administration Hospital, the United States Capitol, and the White House).
Further, appellant asserts that the trial court violated his Sixth Amendment right to compulsory process "by [denying him] several witnesses relevant to his defen[s]e." However, "[t]he Compulsory Process Clause is not violated each time a defendant is deprived of a witness's testimony, but only when the witness's testimony would have been `favorable and material' and `not merely cumulative[.]'" Harris v. United States, 834 A.2d 106, 124 (D.C. 2003) (quoting Bardoff v. United States, 628 A.2d 86, 92-93 (D.C.1993)). Appellant has not shown how the testimony of any witness he was precluded from calling (including USCP spokesperson Kimberly Schneider) would have been based on personal knowledge as well as both favorable and material to his defense.
Appellant's argument that he was unlawfully "extradited" to a federal prison to serve his sentence is without merit. See D.C.Code § 24-101 (2001) (persons convicted of felonies in the D.C. Superior Court become the responsibility of the federal Bureau of Prisons ("BOP")). We likewise deny relief on his claim that the BOP has not properly given him credit for time served. See Alston v. United States, 590 A.2d 511, 514 (D.C.1991) (claims raised by prisoners held in federal prisons regarding credit for time served must be raised, by writ of habeas corpus, in the federal court in the jurisdiction where the claimant is confined). Also without support is appellant's claim that the search of his truck on February 8, 2008, was unlawful because it was pursuant to a D.C. Superior Court search warrant issued to federal law-enforcement authorities. Contrary to appellant's assertion, nothing in Fed.R.Crim.P. 41 supports his claim.
Citing to § 6.2 of the D.C. Voluntary Sentencing Guidelines, appellant argues that all of his sentences should have been concurrent, with the possible exception of his sentence on the WMD count. However, the sentencing guidelines are purely voluntary. See D.C.Code § 3-105(a) (2001). Accordingly, we reject appellant's claim. See Speaks v. United States, 959 A.2d 712, 717-20 (D.C.2008) (explaining that a lawful sentence may not be appealed, whether or not it complies with the voluntary sentencing guidelines).
Finally, appellant's contention that law enforcement officers were derelict in their duties because they did not conduct an inventory search of appellant's truck when it was impounded is raised for the first time on appeal. We therefore need not consider the claim. We note, however, that (as appellant acknowledges) the jury heard testimony about the lack of inventory search, and thus the answer to appellant's belated claim is that this matter went to the weight, not to the admissibility, of the government's evidence about items found in the truck on February 8, 2008.
To summarize, we reject the various challenges brought by appellant with respect to his convictions, other than the challenge related to the trial court's failure to conduct a Frendak inquiry before proceeding to sentencing. We remand for a Frendak inquiry and for such further proceedings (possibly including re-sentencing) as the trial court determines are appropriate, consistent with this opinion. On remand, the trial court shall also vacate one of appellant's CDW convictions, his UA conviction for possession of the .45 caliber round, and all but one of his other UA convictions.
So ordered.
We note that in support of appellant's claim that the counsel who assisted him at trial provided deficient representation, appellate counsel submitted, as supplemental exhibits to appellant's § 23-110 motion, virtually identical affidavits from Mullin and Ohm. Both affidavits state that appellant "appeared to be suffering from some sort of mental disorder, both at the time of his alleged offense and during the court proceedings," and that appellant "frequently made statements that caused [them] to believe that Mr. Gorbey experienced delusions, . . . [that] appeared to motivate and inform Mr. Gorbey's decisions and actions at the time of his alleged offense" and "also appeared to motivate Mr. Gorbey's decisions during the court proceedings associated with this case." Both lawyers stated that they "did not pursue issues concerning Mr. Gorbey's mental health because Mr. Gorbey directed [them] not to do so" and that they "would have requested that the Court refer Mr. Gorbey for a mental health evaluation had Mr. Gorbey allowed [them] to do so." However, contrary to the assertion in appellant's briefs, nowhere in their affidavits did either counsel attest to a good faith doubt as to appellant's "capacity to understand the nature and object of the proceedings against him, to consult with counsel, [or] to assist in preparing his defense...." Drope, 420 U.S. at 171, 95 S.Ct. 896.
554 F.3d at 1290.
We also appreciate the difficult position in which the trial court was placed in this case. It is clear from the record that, in stating that it would not consider the Clinical Summary, the trial court paid heed to appellant's "relationship with [PDS]." We take that reference by the court to mean that the court sought, commendably, to respect the confidentiality of what appellant told the professionals at PDS during the course of PDS's representation of appellant, and to honor appellant's request, made at the time he discharged Ohm, that PDS lawyers were to have no further involvement in his case. At the same time, however, the court was obligated to take into account all relevant and available information in order to properly exercise its sentencing discretion, cf. Grant, 509 A.2d at 1156 (citing Johnson v. United States, 398 A.2d 354, 366 (D.C. 1979)), and (having denied Dworsky's request to withdraw as counsel) to give due regard to the information Dworsky submitted in aid of sentencing.
USCP Sergeant Charles Wood, a senior member of the bomb squad, also testified for appellant as an expert in "bomb recognition." Sergeant Wood reviewed photographs of the device and concluded that it was likely not a functioning explosive device because there was "no way to detonate [it]." He stated, however, that, fully assembled and functional, the device could have caused death or serious bodily injury to more than one person.
