PER CURIAM.
On further consideration of this court's opinion that issued on January 17, 2013, the motion of appellant English to depublish and amend the court's opinion, and the opposition thereto, it is
ORDERED that the motion of appellant English is granted to the extent that the opinion and order entered on January 17, 2013, are hereby vacated. A new published opinion shall be issued in conjunction with this order.
GLICKMAN, Associate Judge:
On December 1, 2006, appellants Terrell Hargraves, Brian Gilliam, and Ronald English were jointly charged by indictment with multiple offenses arising from a shooting and homicide on March 7, 2006, in the vicinity of 30th and P Streets, S.E. The charges included conspiracy to commit first-degree murder while armed; the premeditated first-degree murder while armed of Michael Beckham; assault with intent to kill while armed ("AWIKWA") on Dennis Austin; AWIKWA on Tia Davis, which was reduced at trial to the lesser-included charge of assault with a dangerous weapon ("ADW"); three counts of possession of a firearm during a crime of violence ("PFCV") (correlated with the murder and assault counts); carrying a pistol without a license ("CPWL"); and fleeing from a law enforcement officer in a motor vehicle.
Appellants' joint trial commenced on November 14, 2007. On December 19, 2007, the jury rendered its verdict. The jury found Hargraves guilty of fleeing from a law enforcement officer
Appellants challenge their convictions on diverse grounds. Gilliam contends the trial judge erred in finding him competent to stand trial. Both he and Hargraves argue that the judge abused his discretion in denying their motions for severance. English argues that a ruling by the judge on the order of proof at trial unreasonably impaired his defense presentation and violated his constitutional rights.
We conclude that the judge did not commit any error entitling Hargraves, Gilliam, or English to relief.
A brief overview of the trial will suffice to set the stage for our discussion of appellants' claims of error. The charges arose from an encounter between the occupants of two vehicles — a Chevy Tahoe sport-utility vehicle ("SUV") carrying appellants Hargraves, Gilliam, and English and a Ford Thunderbird carrying Beckham, Austin, and Davis — that left Beckham dead and Austin injured. Appellants and Davis escaped unhurt.
The government presented evidence that appellants conspired to kill Beckham, whom they blamed for the murder of their friend. In furtherance of their plan, appellants allegedly followed the Thunderbird on the morning of March 7, 2006, to 30th and P Streets, S.E., where English and Gilliam started shooting into the vehicle from their SUV. Austin was wounded in the fusillade. According to the government's witnesses, English and Gilliam then chased Beckham on foot, while Hargraves remained in the SUV. English caught up to him in the yard of a nearby house and shot him multiple times. Beckham was unarmed. Meanwhile, Gilliam allegedly shot at Austin as Austin drove away. Gilliam and English then jumped back into the SUV, which immediately sped off. Appellants led police on a prolonged high-speed chase, which ended when the SUV crashed and appellants were arrested.
The defense, spearheaded by appellant English, presented a different account of what happened. According to English (the only defendant who testified at trial), there was no plan to kill Beckham and they did not attack him or his car. Rather, Beckham, who previously had threatened to kill appellants and was reputed in the neighborhood to have committed more than one murder and other acts of violence, followed appellants in the Thunderbird and fired shots at them without provocation. English, who admitted being armed himself, was taken by surprise and fired back. English claimed he then left the SUV and ran towards P Street. As he did, he saw Beckham shooting at him from behind the Thunderbird and shot back. Beckham fell to the ground but then got up and chased English onto Q Street. When Beckham had nearly caught up with him, English, fearing for his life, shot Beckham multiple times in self-defense until his gun was empty.
The jury evidently rejected the government's theory of the case and credited English's testimony when it acquitted appellants of conspiracy, murder, and assault with intent to kill while armed. But the jury showed it was not convinced that appellants acted properly in self-defense by convicting Gilliam and English of voluntary manslaughter, ADW, and PFCV. In settling on that particular verdict, it seems the jury must have found that appellants acted in "imperfect" self-defense, i.e., that they subjectively believed themselves in imminent danger of death or serious bodily harm and believed they needed to use deadly force to repel the danger but that one or both of those beliefs was objectively
The Due Process Clause of the Fifth (and Fourteenth) Amendment prohibits the criminal prosecution of a defendant who is incompetent to stand trial.
On March 10, 2006, three days after appellants were arrested, Dr. Elizabeth Teegarden, a psychologist, conducted a preliminary competency screening examination of Gilliam pursuant to court order. According to her report, Gilliam had been diagnosed in 2001 with Polysubstance Dependence and Substance-Induced Psychotic Disorder "due to the symptoms that surfaced around his periods of substance abuse." When Dr. Teegarden interviewed him on March 10, Gilliam initially was alert and cooperative, but when she asked him about his "legal issues," he stopped responding to her questions and proceeded to stare at her in silence for several minutes. As a result of his non-cooperation, Dr. Teegarden was unable to render an opinion as to his competency. Upon receiving this report, the court ordered a full competency examination.
Eventually, Dr. Bruce Cambosos, a psychiatrist, reported that Gilliam, who was then housed in a mental health treatment unit at the D.C. Jail, was not competent to stand trial. Dr. Cambosos noted that Gilliam refused to talk about his criminal charge and described Gilliam's responses to other questions as "vague, rambling, and disorganized." Relying "substantially" on Dr. Cambosos's report, the court on September 8, 2006, found Gilliam to be incompetent. In the expectation that he could attain competence with appropriate treatment, the judge ordered him transferred to St. Elizabeths Hospital for a period not to exceed 180 days.
A month later, on October 6, 2006, St. Elizabeths reported that Gilliam had been receiving antipsychotic medication (prolixin) and was competent to stand trial.
Within a few months, however, there were renewed concerns about Gilliam's mental status and his ability to assist his attorneys. Pursuant to court order, Dr. Nancy Ingraham, a psychologist, performed another competency screening examination of Gilliam on April 6, 2007. Evidently Gilliam's condition had deteriorated at the Jail; Dr. Ingraham found him confused and incapable of discussing his criminal charges or assisting his attorney in preparing his defense. She opined that Gilliam was "currently" incompetent.
The judge discussed Dr. Ingraham's preliminary screening assessment with Gilliam's counsel at a hearing on April 10, 2007. Counsel agreed that Gilliam apparently
St. Elizabeths filed its report with the court on May 9, 2007. The judge was informed of it the next day at a hearing that had been scheduled to address other matters. The report stated that Gilliam had been diagnosed with catatonic schizophrenia, "in partial remission," in addition to his previous diagnoses; that he was being treated with two medications (zydis and haldol decanoate), which he received by injection every four weeks; that he was competent to stand trial; and that he did not need to remain hospitalized but should continue with his medication pending trial to assure his continued competency. This was the last written report on Gilliam's competency received by the court before his trial. No party disagreed with it or requested a competency hearing. The judge signed an order directing that Gilliam be transferred back to the D.C. Jail, but on defense counsel's motion, he subsequently was returned to St. Elizabeths.
A few months passed. Then, at a pretrial hearing on October 25, 2007, three weeks before trial was to commence, Gilliam's counsel sought a continuance. Counsel explained that Gilliam was "in better condition now than he was when he was at the Jail, but he still hasn't been able to assist us with his defense." "[H]e can talk about everything else," counsel stated, "but he just has a blank when it comes to talking about [his case]."
When the parties returned to court five days later, on October 30, the judge announced that he had contacted St. Elizabeths and requested "something that says whether he's competent or not." In addition, the judge stated, he would order that Gilliam remain at St. Elizabeths until his trial was over to ensure that his competency would continue to be supported. Gilliam's counsel sought no additional relief.
Unfortunately, the hospital did not furnish another written report on Gilliam's competency before trial began on November 14, 2007. We have no indication in the record that the judge received an oral
On this record, we cannot agree that the judge erred in finding Gilliam competent to stand trial. That finding is supported by the May 2007 evaluation of Gilliam at St. Elizabeths and corroborated by Gilliam's satisfactory behavior at trial, his responses to the Boyd inquiry, and Dr. Teegarden's post-trial report and assessment. Despite the initial evaluations of incompetency and Gilliam's deterioration during his stays at the Jail, he evidently responded favorably to the inpatient treatment and medication provided at St. Elizabeths to help him attain competency. Having arranged for Gilliam to remain at St. Elizabeths instead of returning him to the Jail, the judge had reason to believe Gilliam would maintain competency through trial. Gilliam and his counsel did not shoulder the burden of proving otherwise. Under these circumstances, counsel's report of communication problems on October 25, 2007, by itself did not suffice to raise a substantial doubt about Gilliam's competence to stand trial.
By the time of trial, there was no longer a substantial doubt as to Gilliam's competence. The judge's finding that he was competent to stand trial was supported by the evidence of record. We will not disturb it.
"When two or more defendants are charged with jointly committing a criminal offense, there is a strong presumption that they will be tried together."
To show they were prejudiced by the assertion of allegedly antagonistic defenses, appellants point primarily to the testimony of their co-defendant English. As outlined above, English's defense at trial was self-defense: Denying the government's claim that the defendants carried out a planned attack on Beckham, he testified that Beckham was actually the aggressor and that he (English) fought back and killed Beckham only to protect himself. Although English's defense thus largely exculpated Gilliam and Hargraves, they argue that in certain respects his testimony was inconsistent with their defenses of innocent presence.
In actuality, the arguably inconsistent testimony was, at most, cumulative of substantial other evidence and scarcely damaging to Gilliam and Hargraves; it did not add to the prosecution case against them or materially undercut their defenses. But even if that were not so — and even if we were not to believe that English's defense substantially benefited his co-defendants as well as himself — we have a more fundamental reason to reject the claim that antagonistic defenses caused Gilliam and Hargraves manifest prejudice. It is well-settled that "[m]utually antagonistic defenses are not prejudicial per se,"
Gilliam and Hargraves do not identify any specific trial right that was compromised by the denial of their severance motions or any reason to suppose the jury was disabled from fairly adjudicating their guilt. The admission of any supposedly damaging testimony from English was not unfairly prejudicial to either co-defendant as English testified under oath and was subject to cross-examination like every other witness. As the Supreme Court explained in Zafiro,
Moreover, prejudice is not shown merely by the hypothetical possibility that the jury could have ignored the judge's burden-of-proof and other instructions and inferred a defendant's guilt just from the fact that there were conflicting defenses.
Hargraves's further argument, that he was prejudiced because the evidence against his co-defendants was much stronger than the evidence against him, is also unpersuasive. Here, too, Hargraves fails to show that the disparity in the weight of the evidence compromised a specific trial right or prevented the jury from reliably determining his guilt or innocence. "A defendant is not entitled to severance merely because the evidence against a codefendant is more damaging than the evidence against him."
Because he was not convicted of the same offenses as his co-defendants, we have no concern that a spillover effect prejudiced Hargraves. In finding Hargraves guilty only of fleeing, the jury demonstrated that it made an individual determination of his guilt based on the evidence (which was certainly not de minimis) that he drove the SUV from the scene of the shooting. The jury clearly did not find Hargraves guilty of anything based on the evidence of his co-defendants' greater culpability.
Appellant English called six witnesses at trial to testify about Beckham's violent reputation and behavior and the threat he posed to English's life. Four of these witnesses testified about murders, shootings, and other acts of violence Beckham had committed and about threats he had made to kill appellant Hargraves and others. A fifth witness attested to Beckham's reputation in the community as a violent, volatile, and dangerous individual. And the sixth witness, one of English's neighbors, testified that she saw Beckham waiting outside English's house with a gun in his hand on the night before he was killed.
The trial judge allowed English to present this evidence of Beckham's violent character because it was relevant to his claim that he killed Beckham in self-defense.
The issue arose when, prior to the start of the defense case, the prosecutor requested that the anticipated evidence of Beckham's prior bad acts not be admitted ahead of evidence of self-defense. English's counsel objected, stating:
English's counsel did not say what the evidence of self-defense would be, but she did not disagree when the judge surmised that it likely would have to come from English's own mouth.
After a break, however, the judge revisited the issue and reversed his ruling. As the judge explained, he had concluded that the prosecutor was right about the potential for unfair prejudice, and he saw no reason the jury needed to hear testimony about the decedent's propensity for violence before the predicate evidence of self-defense was introduced:
English's counsel urged the judge to adhere to his earlier view that if, "for some reason," she did not present evidence of self-defense, a sufficient remedy would be to strike all the testimony about Beckham's history of violence. However, counsel did not answer the judge's question as to why she should not be required to introduce some evidence of self-defense first.
On appeal, English agrees, as he must, that the trial judge "may determine generally the order in which parties will adduce proof [and that] his determination will be reviewed only for abuse of discretion."
For convenience and other practical reasons, and in recognition of "the need for leeway so counsel may select the most persuasive order of proof,"
We reject the premise of English's claim. In our view the record affirmatively shows that the trial judge did not labor under any misapprehension that an "ironclad rule" governed his decision. On the contrary, the judge was aware of his discretionary authority and exercised it. He considered allowing English to introduce the evidence of Beckham's violent acts conditionally, recognizing that he could strike the evidence if need be. Ultimately, however, the judge found that English's preference was outweighed by the risk of unfair prejudice to the government from the admission of evidence powerfully besmirching the decedent's character in the event English failed to present evidence that he acted in self-defense — prejudice that would not necessarily be dispelled by the remedy of formally striking the prior bad act evidence and instructing the jury to disregard it.
We are equally unpersuaded by English's backup argument, advanced in his reply brief, that if the judge did exercise discretion, he abused it by failing to consider all the appropriate factors in making his ruling.
English also complains that the judge failed to consider how critical it was to his defense for the jury to hear eyewitnesses tell of Beckham's violent history and the threat he posed before it heard English tell why he shot Beckham. Citing psychological studies of how juries decide cases, English argues that evidence presented in chronological or narrative sequence is more persuasive than the same evidence presented out of order because jurors construct stories to explain the evidence as it comes in and tend to disregard subsequent evidence that conflicts with those stories.
We need not address the soundness of the psychological research on which English relies or the likelihood that the order of proof made the kind of difference that English posits. We do not doubt that, in deciding whether to admit evidence conditionally, a trial judge should consider the proponent's legitimate reasons for wanting to do so, including counsel's view that it represents the most persuasive way to present his case (though the judge ultimately may find those reasons outweighed
In short, English gave the trial judge no affirmative reason to allow him to present the prior bad act evidence "out of order," i.e., without first satisfying the conditions under which that evidence would be relevant and admissible. The judge did not err in failing to consider reasons that English never offered. We hold that the judge did not abuse his discretionary authority over the order of proof by requiring English to present some evidence that he acted in self-defense before he could introduce the evidence of the decedent's propensity for violence.
For the foregoing reasons, we affirm appellants' convictions. English and Gilliam each argue that one of his PFCV convictions should be vacated on merger grounds. We agree and direct the trial court to effectuate the vacaturs on remand.
So ordered.
Concurring opinion by Senior Judge NEWMAN at page 34.
NEWMAN, Senior Judge, concurring
Having authored what is viewed by some as the leading opinion by this court on the issue of judicial discretion, see
The court's opinion correctly cites our various prior holdings on our measure of review of a trial court's finding that the defendant is competent. We have said our review is of a ruling made by a trial court vested with "wide discretion" in determining competence to stand trial. Holmes v. United States, 407 A.2d 705, 706 (D.C. 1979) (citing Clyburn v. United States, 381 A.2d 260 (D.C.1977) cert. denied, 435 U.S. 999, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978)). On other occasions we have said competency determinations are discretionary rulings not to be set aside unless "clearly arbitrary or erroneous." Bennett v. United States, 400 A.2d 322, 325 (D.C.1979). We expounded further on Bennett in Wallace v. United States, 936 A.2d 757, 763 n. 11 (D.C.2007), where we said:
I respectfully submit that our review is neither of a determination committed to the discretion of the trial court, see Johnson, supra, 398 A.2d 354, nor a finding of fact subject to review by us pursuant to D.C.Code § 17-305(a) (when tried by the court, "the judgment may not be set aside except for errors of law" or unless "the judgment is plainly wrong or without evidence to support it."). Rather, the issue being reviewed is a mixed question of law and fact as elucidated, among other places, in Davis, supra, 564 A.2d 31 and Felder, supra, 548 A.2d 57. This court should so recognize and review competency determinations as such pursuant to the strictures of Davis.
