RUIZ, Associate Judge, Retired:
Kevin Dobbins and Darion Ingram were each convicted after a lengthy trial of two counts of unarmed second-degree murder, D.C.Code § 22-2103 (2001), as lesser-included offenses of armed first-degree (premeditated) murder and first-degree (felony) murder, in connection with the killing of Kenneth Muldrow, who died after he was viciously beaten and sexually assaulted.
Appellants Dobbins and Ingram raise several claims of trial court error, none of
We affirm, but remand the case for vacation of the duplicative convictions and re-sentencing because, as the government concedes, appellants cannot stand convicted of two murders for the killing of one person.
On the night of December 8, 2000, Kenneth Muldrow was murdered by a group of men who brutally beat and sexually assaulted him over the span of approximately forty-five minutes. Muldrow was 19 years old, a special needs student who had recently been hospitalized for head trauma. Baxter approached Muldrow as he and a companion, Franklin Boyd, were walking toward the Benning Road, N.E. Metro stop. Boyd testified that Baxter accused Muldrow of stealing his "stash" and then told him that he would have to pay or fight him. Muldrow, distressed, confused, and unable to speak coherently, responded he did not know what Baxter was talking about. Baxter struck Muldrow in the head with a bottle of "Remy" liquor, and after Muldrow collapsed to the ground, Baxter punched him in the face. Boyd saw a second person punch Muldrow, a third person kick him, and then heard members of a gathering crowd telling Baxter, "that's what you was talking about, that's the nigger that owe you."
In addition to Boyd, eight witnesses testified at trial about the brutal attack on Muldrow: Carlos Hawkins, Ray Williamson, Tanya Mathis, Gale Turner, Jacqueline Pollard, Duane Hankins, Michelle Tingling-Clemmons, and Stephanie Lewis. Hawkins lived in the first floor apartment located at 4607 Central Avenue N.E., and on the evening of December 8, 2000, he was sitting in his living room when he heard "a lot of commotion" outside. He looked out of a window and saw Ingram and Dobbins beating a man of "small stature."
Around 10:30 p.m. on the evening Muldrow was beaten and killed, Ray Williamson was parking his car on his way to Charles Simpkins's apartment in the building next door to Hawkins, at 4609 Central Avenue, N.E., when he noticed three or four young men "stomping something in the shrubberies" near Smith's apartment.
Four persons who were at Charles Simpkins's apartment that night—Tanya Mathis, Gale Turner, Jacqueline Pollard, and Duane Hankins—testified that they saw part of the attack or its immediate aftermath. Mathis
A few days after the murder, Mathis testified, Baxter told her that "Kenny took a stash from me so that's why I did him like that." Around the same time, Mathis noticed that Baxter was wearing sneakers she had seen him remove from Muldrow's feet during the attack. Mathis also noticed that during this time period, Baxter would occasionally run around holding a stick in front of the area of his genitalia and laugh.
Jacqueline Pollard had known Muldrow from the time that he was nine years old. She was a frequent visitor to Simpkins's apartment and was familiar with Baxter,
Duane Hankins
Michelle Tingling-Clemmons, who lived at 4614 Central Avenue, N.E., was asleep in her second floor bedroom and got up to use the bathroom when she was awakened by noises outside, followed by male voices and the sound of "someone getting hit." Tingling-Clemmons got out of bed, looked out of her window, and saw two men standing over a third man while one of them kicked the man on the ground. Tingling-Clemmons was not wearing her glasses so she could not see who the attackers were, but she did notice that one of the men was wearing what appeared to be Timberland boots.
Baxter took the stand in his own defense and called an investigator, Willie Brown, who testified about measurements he took at the crime scene. Baxter testified that on the evening of December 8, 2000, he was at Simpkins's apartment, but went outside to see a fight between two other people that did not involve Muldrow. After observing that fight, Baxter sat on the street, and saw Muldrow, whom he suspected of stealing $300 from him, walking by. Baxter and Muldrow exchanged vulgarities and Baxter instigated a fight. Baxter struck Muldrow with his fist a number of times, and while Muldrow was lying on the ground, Baxter hit him a few more times. There, according to Baxter, the fight came to an end. Although Muldrow continued to lie on the ground, he had a coherent conversation with Baxter. When Baxter left, Muldrow was "talking and alive." Baxter denied striking Muldrow with a bottle, stomping or jumping on Muldrow, assaulting him with a pole or going back into Simpkins's apartment after the fight. Baxter did not see anyone else strike, assault, or otherwise attack Muldrow.
Ingram called one witness in his defense: his mother, Willie Mae Ingram. She testified that Ingram came home around 11:00 p.m. on the night of December 8, 2000, and remained at home for the rest of the night. She said that his eyes were red and that she had wiped off what appeared to be glass fragments from around his eyes; she did not take Ingram for medical care.
Dobbins called three witnesses in his defense: his mother, Nadine Dobbins, his step-father, Anthony Skinner, and Michael Gainter. Dobbins' mother testified that Dobbins wore a size twelve. Skinner testified that on May 13, 2002, police officers removed a pair of shoes from his apartment that belonged to his wife, Nadine Dobbins. Dobbins also introduced, through stipulation, a portion of the grand jury testimony of Gainter, who was present at Simpkins's apartment on the night of the killing. Gainter testified that he did not see Dobbins there.
In rebuttal, MPD Detective Ray Crawford testified about the investigation of Muldrow's murder, including the questioning of Baxter. A videotape of Baxter's statement to the police, which is discussed at length in Section II. A, was introduced at trial.
The jury found Baxter guilty of first-degree sexual abuse while armed, first-degree felony murder while armed, and second-degree murder while armed. Dobbins and Ingram were each found guilty of two counts of unarmed second-degree murder, as lesser-included offenses of the first-degree murder charges, and acquitted of sexual abuse. Ingram was sentenced to concurrent terms of twenty years' imprisonment on each of the two counts of unarmed second-degree murder, five-years of supervised release, and a fine of $200 pursuant to the Victims of Violent Crime Compensation Act (VVCCA). Dobbins was sentenced to concurrent terms of fifteen years' imprisonment on each of the two counts of unarmed second-degree murder, five-years of supervised probation, and a $100 fine pursuant to VVCCA. Baxter, Ingram and Dobbins filed timely appeals.
Dobbins asserts that the trial court erred by failing to sua sponte sever his trial from that of his co-defendants because he was prejudiced by the admission of Baxter's unredacted confession in which he inculpated Dobbins in Muldrow's murder. On appeal, the government concedes that Baxter's unredacted statement should not have been admitted. See Brisbon v. United States, 957 A.2d 931, 953-54 (D.C. 2008). The government contends, however, that because defense counsel failed to move for severance or to object to the admission of Baxter's unredacted confession on this precise ground, plain error review applies; appellant does not argue otherwise. There was no plain error, the government argues, because there was other "powerful" evidence that was properly admitted against Dobbins, and the trial court cautioned the jury not to use Baxter's confession against any other co-defendant. Based on our review of the record, counsel arguably preserved the objection, in which case the proper standard of review would be for harmless error under Kotteakos v. United States, 328 U.S. 750, 756, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Our decision does not turn on the standard of review, however. We conclude that although the trials should have been severed, or only a redacted version of Baxter's confession admitted, we can say with "fair assurance"—in light of the trial court's instructions, the evidence arrayed against Dobbins, and the jury's verdict— that the erroneous admission of Baxter's unredacted confession did not "substantially sway" the jury to convict Dobbins of unarmed second-degree murder. Id.
Baxter made his statement on March 22, 2001, when he was taken to the police station to discuss Muldrow's murder. Baxter initially denied having any knowledge of Muldrow's murder, but later admitted limited involvement in the assault. According to Baxter's statement, Muldrow stole money from him at Simpkins's apartment. On the evening of December 8th, Baxter encountered Muldrow on the street and a fight ensued over the stolen cash. Baxter struck Muldrow with his fist four times; he then withdrew from the fight and had no further contact with Muldrow. This part of the statement coincided with this testimony at trial. In the statement he gave to police, however, Baxter added that he then saw Matthew Ingram, Ingram, and Dobbins punch Muldrow; that Dobbins jumped several times from a railing onto Muldrow's head, struck Muldrow with a vacuum cleaner, and continued to beat him with it; that Matthew Ingram then got a stick from Simpkins's apartment, which he used to beat Muldrow and then shoved into Muldrow's "butt." Baxter's statement to the officers was videotaped.
At a pre-trial hearing, the government requested that it be allowed to introduce Baxter's unredacted statement in its case-in-chief. In response, Dobbins's counsel, along with counsel for a number of the other defendants, filed motions in limine to preclude admission of Baxter's statement, to sever their trials from Baxter's trial, or to redact the statement.
At trial, Baxter reiterated part of what he had said in this original statement with respect to his own involvement, that he had punched Muldrow only a few times; but he recanted his earlier statement implicating Dobbins and Ingram in the vicious assault. He tried to explain away the contradictions between his videotaped statement and his trial testimony, by saying that he initially gave the police the same version he had testified to at trial, but they refused to accept it. He said that the police simply fed him the information about the other co-defendants, which he felt pressured to repeat in his own statement.
After Baxter testified, the prosecutor said the government intended to use Baxter's unredacted videotaped statement in cross-examination, pointing out that because Baxter had taken the stand, redaction of the statement (what the prosecutor called a "Brutonized version") was "no longer an issue." At that point, counsel objected, saying, "that's not the way I see[] it ..." and argued that the videotape should not be admitted because at the pretrial hearing, the trial court had given the government a choice, whether it wanted to use a transcript or a videotape, and the government had chosen to use a redacted transcript. Counsel "renew[ed his] objection,... renew[ed his] motion to suppress the statement."
"For purposes of error preservation, objections at trial must be made with reasonable specificity; the judge must be fairly apprised as to the question on which he is being asked to rule." Paige v. United States, 25 A.3d 74, 81 (D.C.2011) (citation omitted). Counsel had clearly stated a Confrontation Clause objection in the pretrial motion in limine, and counsel continued to object even after Baxter took the stand and became available for cross-examination, because the government had already opted to present a redacted transcript instead of the videotape. To the extent defense counsel did not alert the judge to the precise (and legally proper) basis for their continuing objection that we now discuss, it should have been apparent to the prosecutor, as well as to the court, that Baxter's unredacted confession inculpating
Baxter's taking the stand obviated a Bruton issue, but the confession was nonetheless inadmissible because "under the traditional rules of evidence, it constitutes inadmissible hearsay and has no legitimate probative force against the non-confessing codefendant." Carpenter v. United States, 430 A.2d 496, 500 (D.C. 1981) (en banc) (citing Sousa v. United States, 400 A.2d 1036, 1043 (1979)). The trial court, in exercising its discretion to sever, "must weigh prejudice to the defendant caused by the joinder against the important considerations of economy and expedition of judicial administration." Id. at 502. Although "some amount of prejudice will be permitted in favor of judicial economy and the concomitant expedition of cases[,] ... once a severance issue is presented the court has a continuing duty to take adequate measures to guard against unfair prejudice from joinder." Id. at 500-1; see Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Wilson, 434 F.2d 494, 499-500 (1970). Specifically, the trial court must take "appropriate steps to ensure that a defendant is not prejudiced by testimony as to a confessing co-defendant's out-of-court statement." Carpenter, 430 A.2d at 500-501. The court has two options: to redact the statement to delete all references to the non-confessing co-defendant, or to sever the trials. Id. at 502 (citing Smith v. United States, 312 A.2d 781, 788 (D.C.1973)). We emphasized again in Geter v. United States, 929 A.2d 428 (D.C.2007), that the court must either redact the testifying co-defendant's confession "to eliminate all incriminating references to the codefendant, or the codefendant's motion [to sever] must be granted— whether or not the defendant who made the statement takes the stand and testifies," id. at 431 (applying Carpenter to use of unredacted statement in cross-examination), and we have reversed convictions where the defendant was prejudiced by admission of a co-defendant's unredacted confession. See id.; Brisbon, 957 A.2d at 954-957.
Here, the trial court clearly erred in allowing Baxter's videotaped confession to be played in its entirety—without redacting the parts that inculpated his co-defendants—as part of the government's impeachment of Baxter. The trial court did take care to instruct the jury on three separate occasions that it could consider the statement only as impeachment evidence against Baxter.
This, however, is the unusual case where we can conclude that the non-confessing co-defendant was not prejudiced by the admission of a co-defendant's unredacted inculpating confession in a joint trial. There was overwhelming evidence presented by eyewitnesses who knew Dobbins and directly implicated him in the murder.
Ingram and Dobbins argue that their convictions should be reversed because the
The government argues that our review is limited to plain error because defense counsel never objected to the trial court's aiding and abetting instruction. Prior to the trial court's final jury instructions, the trial court directed the parties' attention to the then-standard aiding and abetting instruction, Criminal Jury Instructions for the District of Columbia, No. 4.02 (4th ed.1993) (the "Redbook"). Kenney's counsel asked for an additional explanation as to what made something "foreseeable" saying that "it's not something possible, it's something probable and natural ..." Dobbins's counsel also said that, "[t]he language I would suggest is getting to the point that the killing must be in the ordinary course of things the natural and probable consequence." Counsel did not object to the "natural and probable" consequences language of the aiding and abetting instruction, but requested that the trial court include a further explanation of the natural and probable consequence language as a supplemental instruction. Thus, we agree that the plain error standard governs our review. See Carter v. United States, 957 A.2d 9, 20 (D.C.2008) (noting that because appellant "did not object to the `natural and probable consequences' instruction, we review his claim under the demanding plain error standard"). To obtain reversal of a conviction under plain error review, an appellant must show: (1) error; (2) that is plain or clear; and (3) that affects the defendant's substantial rights; if the appellant meets this burden, then the court may exercise its discretion to reverse if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Here, the first two aspects of plain error review, error that is obvious, are met. See Pérez v. United States, 968 A.2d 39, 93 (D.C. 2009). We, therefore, start our review by assessing whether the error implicated appellants' "substantial rights." See Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
To meet the third prong of plain error review, whether the error affected substantial rights, it is appellants' burden to show a "reasonable probability" of a different outcome if the jury had not been improperly instructed. United States v. Dominguez Benitez, 542 U.S. 74, 81-2, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (citing and adopting standard in United States v. Bagley, 473 U.S. 667, 681 n. 12, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Appellants argue that the prosecutor's statements at trial "very substantially increased the prejudice ... and increased the likelihood that the jury in this case convicted him of second-degree murder because of the erroneous aiding and abetting" instruction. We have no doubt that appellants were convicted of murder as aiders and abettors. The government's theory at trial was that appellants had
(emphasis added).
In order to convict appellants of second-degree murder, the jury had to find that appellants had "a specific intent to kill, specific intent to inflict serious bodily harm, or wanton and willful disregard of an unreasonable human risk—also known as `depraved heart' murder." Pérez, 968 A.2d at 102 (quoting Comber v. United States, 584 A.2d 26, 38-39 (D.C.1990) (en banc)). In assessing the impact of the erroneous instruction and the government's closing and rebuttal arguments on appellants' substantial rights, we consider the evidence presented to the jury and the verdict. In Pérez, for example, appellants had been convicted of first-degree murder on an aiding and abetting theory after the jury received a similarly erroneous instruction. 968 A.2d at 92-93. Although there was no evidence that any of the appellants had personally possessed knives or stabbed the victim, the evidence showed that they had chased, beaten and kicked the decedent and were part of the assaulting group when he was stabbed. Id. at 93-94. On plain error review, we vacated the first-degree murder convictions, but directed the trial court to enter convictions for second-degree murder as to each of the defendants because the evidence of their conduct as part of a group assault clearly met the mens rea element of malice sufficient for second-degree murder. Id. at 102-105. As to one defendant, we held that the requisite intent for second-degree murder could be inferred "through his joining in a group assault and viciously kicking [the decedent.]" Id. at 102; see also Kitt v. United States, 904 A.2d 348, 353 (D.C.2006) ("As a general rule, the requisite mens rea may be inferable from the facts and circumstances surrounding a murder ...") (citation omitted).
Had Dobbins and Ingram attacked Muldrow only in the earlier stages of the attack, or if the nature of their own actions in the assault on Muldrow had not evidenced a wanton and willful disregard of an unreasonable risk of human life, their substantial rights may have been affected by the trial court's erroneous jury instructions.
Before trial, appellant Darion Ingram had filed a motion to sever his trial from Matthew Ingram's, noting that Matthew could provide evidence that would exculpate Darion, but that his testimony would be unavailable while Matthew had a Fifth Amendment privilege in a joint trial. In the pretrial motion, counsel also pointed to Matthew's prior consistent recorded statement to police officers that, toward the beginning of the assault on Muldrow, someone had hit him with a glass bottle that shattered, with shards flying into Darion's eyes, which prompted Darion and Matthew to leave.
Darion's motion for a new trial was filed after the jury returned a verdict finding him guilty of second-degree murder and acquitting Matthew of all charges. The motion argued that because Matthew no longer had a Fifth Amendment privilege, his proffered exculpatory testimony constituted newly discovered evidence that entitled him to a new trial under Superior Court Criminal Rule 33. According to the proffer, Matthew would testify that, although Ingram was present at the beginning of the attack, he did not participate in the continued assault that killed Muldrow. The motion reminded the court that Matthew's testimony would be consistent with the recorded pre-trial statement he gave to the police soon after Muldrow was killed.
The trial court denied the motion, without a hearing, pointing to the absence of an affidavit from Matthew detailing what his testimony would be. In addition, the trial court did not believe that the jury would have credited Matthew's testimony over that of the witnesses presented at trial, noting that the jury did not appear persuaded by similar testimony from Darion's mother that he had come home after he had been injured by flying glass. Matthew later wrote a letter to the judge, and, at Darion's sentencing hearing, the trial court allowed Matthew to address the court at length. He explained that while Darion was at the scene of the murder, he "did not touch" Muldrow.
The trial court, on motion of a defendant, may grant a new trial if required in the "interests of justice." Super Ct.Crim. R. 33 (2011). To succeed on a motion for a new trial based on newly discovered evidence, "the movant has to show that: (1) the evidence is newly discovered; (2) the moving party was diligent in seeking to obtan the evidence; (3) the evidence is material to the issues involved and not merely cumulative or impeaching; and (4) it is of a nature that it would probably produce an acquittal." Porter v. United States, 826 A.2d 398, 414 (D.C. 2003) (quoting Prophet v. United States, 707 A.2d 775, 778 (D.C.1998); Byers v. United States, 649 A.2d 279, 287 (D.C. 1994)). Where the newly discovered evidence is testimony of a former co-defendant who remained silent at the earlier trial, "we have cautioned the trial court to scrutinize such evidence with great care... [because] the co-defendant `has little to fear in attempting to exculpate others
In Pérez, we upheld denial of a motion for a new trial based on newly discovered evidence where the defendant failed to present an affidavit detailing the testimony of a new witness and the trial court concluded the motion was "too vague and conclusory to warrant serious consideration or a hearing." 968 A.2d at 86 n. 55. Here, there was no affidavit from Matthew, and although, as the trial court noted, "it is clear what the defense expects Matthew Ingram to say if he were called to testify, it is unknown what he would actually say if called by the defense." The trial court thus characterized Matthew's testimony as "speculat[ive]," and went on to say that:
At sentencing, where Matthew said Darion had "not touched" Muldrow, the trial court said the testimony of the eyewitnesses who testified at trial was "compelling."
Even if we assume that Matthew's pre-acquittal Fifth Amendment privilege rendered his testimony newly discovered for purposes of Rule 33, the decision of the trial court, from the perspective of a "thirteenth juror" who observed the trial first-hand, was "reasonable and supported by the evidence in the record." Geddie, 663 A.2d at 533-34. We cannot say the trial court abused discretion in denying the motion. See Pérez, 968 A.2d at 86 n. 55.
For the foregoing reasons, we affirm the judgments on appeal, but we remand the cases with instructions to vacate the duplicative second-degree murder convictions. See Downing v. United States, 929 A.2d 848, 864 (D.C.2007).
So ordered.
Baxter was convicted of first-degree sexual abuse while armed, first-degree felony murder while armed, and second-degree murder while armed (as a lesser-included offense of first-degree premeditated murder) in violation of D.C.Code §§ 22-2103, -4502. Upon receipt of a joint suggestion of Baxter's death, the court issued an order on February 4, 2011, dismissing his appeal and remanding his case to the Superior Court with directions that his convictions be vacated and his prosecution abated by reason of death. See Howell v. United States, 455 A.2d 1371, 1372 (D.C. 1983) (en banc).
Shortly after Muldrow's death, Turner noticed that a blue ceramic lamp that she had owned and had kept in the living room of the apartment was missing. When she went outside, she saw what appeared to be pieces of the lamp on the ground. Baxter later told Turner that he would replace the lamp. In court, Turner identified Government Exhibit 16, which was recovered near the crime scene shortly after the murder, as remnants of her lamp. Turner also recalled that a vacuum cleaner that had been in the apartment before December 8, 2000 was no longer there after that day. She described items shown in Government Exhibits 58, and 59, photos taken from in front of 4609 Central Avenue, N.E. on December 9, 2000, as parts of the missing vacuum cleaner.
A second time, in its final instructions, the court repeated the admonition:
The court cautioned the jury a third time, during jury deliberations. The jury sent a note to the trial judge asking for a video player—Baxter's counsel opposed and argued that it would highlight Baxter's statement, while Dobbins's counsel requested that an additional cautionary instruction be given to the jury. Judge Greene, who was standing in for Judge Broderick, sent a note to the jury stating, "I remind you, as I believe Judge Broderick instructed you, that you may not consider this exhibit (the videotape of Baxter's statement) with regard to defendants Jamar Brown, Kevin Dobbins, Darion Ingram, Matthew Ingram, or Lamont Kenney."