Jordan v. United States
Jordan v. United States
Opinion of the Court
Percy Jordan appeals his convictions for first-degree murder while armed/felony murder (with aggravating circumstances),
I.
The charges against appellant grew out of the robbery and murder of David Rosenbaum. According to the government’s evidence, on January 6, 2006, Rosenbaum left his house in Northwest D.C. to take a walk after dinner. At the time, appellant and his cousin, Michael Hamlin, were driving around nearby in Hamlin’s car. As they were driving, appellant — who had with him a foot-long, hard, black plastic pipe — said, “Let’s go get someone,” which Hamlin understood to mean rob someone. Hamlin parked the car on Gramercy Street at 38th Street, N.W. At that point they spotted Rosen-
Hamlin and appellant then moved the car to the other side of the street. Appellant got out and ducked behind a tree along Rosenbaum’s path. As Rosenbaum passed the tree, appellant jumped out and struck him in the head and waist with the pipe. Rosenbaum fell. Hamlin ran over and took the wallet from Rosenbaum’s back pocket. The wallet contained $265 to $275 in cash, as well as credit cards, bank cards, a debit card, and a driver’s license. Appellant and Hamlin then drove to an Exxon station on Connecticut Avenue, N.W., where Hamlin used a Rosenbaum credit card to fill up the gas tank while appellant went inside the convenience store to buy snacks. They later used Rosenbaum’s credit card to purchase items at a CVS store and a Safeway, both in Southeast D.C. Rosenbaum died two days later on January 8, 2006. The physical strike to his head had caused a blood clot, which in turn caused his brain to swell.
The government established its case against appellant primarily through Michael Hamlin’s testimony. Hamlin had turned himself in to the police shortly after the robbery upon learning that Rosen-baum had died from his injuries. During his initial interrogation, Hamlin told homicide detectives three false accounts of what had happened on January 6 before finally admitting his role in Rosenbaum’s assault. Hamlin eventually pleaded guilty to second-degree murder, robbery, and conspiracy to commit robbery. As part of his plea agreement, Hamlin testified on behalf of the government and implicated appellant as the person who had physically struck Rosenbaum during the robbery.
In addition to Hamlin’s testimony, a friend of appellant, John Snowden, testified for the government about a conversation he had had with appellant on January 11, 2006, five days after the incident. Snowden testified that appellant had told him that “if his cousin Mike say something he’d be gone a long time.” Appellant went on to say “something about a credit card and a bank card,” and added that he and Hamlin had “caught a cracker sleeping,” which meant, according to Snowden, that they had caught a white person who did not know what was about to happen to him.
Appellant’s defense theory was that Hamlin, not appellant, had attacked Rosenbaum, and that Hamlin was lying to avoid a longer prison sentence. The defense, therefore, focused on Hamlin’s credibility. The only defense witness was Detective Edward Truesdale of the Metropolitan Police Department. Detective Truesdale testified that Hamlin had given changing versions of his involvement in Rosenbaum’s death. Defense counsel tried to elicit that Truesdale had been the one who suggested to Hamlin that his cousin (appellant) had instigated the robbery. Although Hamlin, during cross-examination, had admitted that Detective Truesdale had suggested as much, the detective himself testified that he did not remember asking a question that would have suggested that Hamlin should implicate his cousin.
II.
Appellant contends that the trial court erred by refusing to answer a question from the jury during its deliberations. With respect to the principal charge, first-degree murder while armed/felony murder (with aggravating circumstances), the court instructed the jury with the elements of the offense, the first of which was the required finding that “the defendant caused the death of the decedent, David Rosenbaum.” The court added:
*707 A person causes the death of another person if his actions are a substantial factor in bringing about death and if death is a reasonably foreseeable consequence of his actions. Death is reasonably foreseeable if it is something which should have been foreseen as being reasonably related to the defendant’s actions.
On the second day of deliberations, the jury sent a note to the court asking two questions:
“Question Number One: Does cause as set forth in the first element of the first degree murder charge mean physically striking the victim? Question Number Two: Does the definition of causation on page 36 of the final instructions apply to both first and second degree murder?”
Defense counsel asked the court to answer “yes” to the first question because a physical striking was “the only evidence that’s presented”; that is, the jury could not find that appellant had caused Rosenbaum’s death in any way other than by striking him. The government argued, to the contrary, that the jurors might have a different line of thinking; they might believe that appellant had struck Rosenbaum, but that his doing so had not been “a substantial factor in bringing about his death.”
The trial court declined to answer the jury’s first question: “I think that’s for the jury to determine. I’m not going to set forth what facts they should find.” The court therefore responded to the jury: “With respect to the first question, the first element states that the defendant caused the death of the decedent David Rosenbaum. It is your duty to determine whether the defendant caused the death of David Rosenbaum.”
“Decisions regarding reinstruction of a jury are committed to the discretion of the trial court; absent abuse of that discretion we will not reverse.”
Cox and Preacher do not govern this case. It may appear, initially, that the jurors were asking for nothing more than clarification of legal language (the meaning of “cause”). But whether they knew so or not, they were asking the judge — as he himself recognized — to do a job for them as fact-finder. The only evidence before the jury reflecting a “cause” of death was Rosenbaum’s beating with a pipe. Had the judge answered “yes” — “cause” means “physically striking a victim” — the judge would have all but told the jury that if it were to find that appellant had struck Rosenbaum, then ipso facto he caused the man’s death. Furthermore, in Cox and Preacher, the initial instructions did not define the legal terms the jurors inquired about, whereas the jurors here had received a comprehensive definition of “cause,” uncontested at trial. They could have had little, if any, doubt, therefore, that a “physical striking” was a “substantial factor” that could satisfy “cause” of death. On this record, the jury’s note cannot reasonably be taken as evidence of meaningful jury confusion.
One may wonder how a “yes” answer would have helped appellant’s cause if — as appellate counsel conceded at oral argument — the answer would have told the jury that, upon finding that appellant had struck Rosenbaum, he had caused Rosen-baum’s death. In his reply brief, appellant argues that by refusing to answer “yes” in response to the jury’s question, “the trial
Convincing as appellant’s argument may seem, his associational theory is grounded on a misguided premise; the jury did not receive an instruction permitting conviction for aiding and abetting — -for merely associating with — the confederate who struck the decedent.
But even if some of the jurors, despite the lack of an aiding-and-abetting instruction, were struggling because of a perception that Hamlin was the more likely striker, our case law supports the trial court’s decision not to answer the jury’s first question. The simple “yes” response that counsel asked for would have come close to a directed verdict on the facts of this case. In Graham v. United States,
We sustained the ruling. “Because the trial court had already provided instructions regarding [the legal terms], and because of the trial court’s concern that it not dictate the outcome of the case, we cannot say the court abused its discretion by responding to the note” as it did.
III.
Jordan argues next that the trial court erred by overly restricting his cross-examination of Michael Hamlin. First, counsel was not permitted to question Hamlin about a statement he had given in an earlier, unrelated prosecution in Maryland- — a statement similar to one of the false statements he gave to the police in this case. Second, counsel was not permitted to read into evidence a statement to Hamlin by a police detective during Hamlin’s interrogation.
A.
As to the first, defense counsel moved in limine for a ruling that would permit him to cross-examine Hamlin about the Maryland testimony, which he had given pursuant to a plea agreement. In Maryland, he testified that he had been driving in a car with his co-defendant; that the co-defendant had left the car to urinate; and that the co-defendant had then robbed someone. One of Hamlin’s statements to the police in the present case, which he soon admitted was false, was nearly identical to the Maryland testimony; The trial court rejected the proposed cross-examination, however, on the ground that it would confuse the jury because it involved an unrelated case.
A defendant’s Sixth Amendment right to confront adverse witnesses necessarily includes the right to cross-examine.
That said, appellant had significant opportunity to cross-examine, and confirm without question, that Hamlin was a liar. Beginning with Hamlin’s direct examination, the government itself elicited his admission that, at the outset of his interrogation, he had lied to the police by giving three false versions of the robbery, including the urination feature. Defense counsel freely cross-examined him on his prevarication. Hamlin’s credibility was further tainted by admission in evidence of his Maryland conviction, “accessory after the fact to robbery,” pursuant to a plea agreement for which he received a year’s probation.
Finally, while perhaps adding a small measure of doubt about Hamlin’s credibility, his Maryland testimony — as the trial court perceived it — not only might have confused the jury as to its relevance but also, of greater significance, would likely have justified the government’s seeking admission of additional evidence about the Maryland trial that, in the end, could well
B.
The second challenged restriction on cross-examination occurred during trial when counsel attempted to question Hamlin about a statement allegedly made to him by Detective Truesdale during Hamlin’s interrogation. According to Hamlin, before he told the police what had happened during the robbery of Rosenbaum, Detective Truesdale had said to him that appellant had put him in a “fucked up” position by “pulling a stunt.” Appellant wanted to introduce these statements in the hope of eliciting from Hamlin an admission that he had developed his story of what happened in this case based on what the detective had said to him. The trial court advised defense counsel that he could ask Hamlin about the statements but could not quote them.
After that ruling, counsel cross-examined Hamlin, as permitted, and elicited an affirmative response when he asked Hamlin whether the detective had “suggested” what had happened.
During closing argument, the prosecutor referred to surveillance photographs from a gas station in the area where Rosenbaum was attacked. They were taken shortly after the robbery and showed appellant going into the station. The prosecutor asked the jury, “So, what’s the explanation? What’s he doing there?” Defense counsel immediately objected, was overruled, and, after the argument, moved for a mistrial contending that the comment improperly shifted the burden of proof. The trial court denied the mistrial, ruling that the comment was not “in any way prejudicial or contrary to the law.”
On appeal, the argument is more specific. The prosecutor, says appellant, shifted the burden of proof to the defense because the challenged comments to the jury were, in effect, comments on appellant’s failure to testify at trial, in violation of his Fifth Amendment privilege against self-incrimination.
The prosecutor cannot be faulted here. We agree with the government that the prosecutor merely asked rhetorical questions that did not “naturally lead the jury to focus on defendant’s silence.”
V.
Finally, appellant argues that the trial court erred by failing to strike his nickname, “Master P,” from the indictment. A trial court may strike surplusage from the indictment on motion of the defendant,
This court generally disfavors the inclusion of an alias in the indictment, unless the alias is needed for identification of the
* * * * * *
For the foregoing reasons we affirm appellant’s convictions, remanding for amendment of the judgment and commitment order to account for merged offenses.
So ordered.
. D.C.Code §§ 22-2101, -2104.01(b)(8), - 4502 (sentenced to 660 months in prison, to run concurrently with the sentence for second-degree murder while armed).
. D.C.Code §§ 22-2103, -4502 (sentenced to 240 months, to run concurrently with the sentence for first-degree felony murder while armed).
. D.C.Code §§ 22-2801(a), -3601 (sentenced to 78 months, to run consecutively to all other counts).
. D.C.Code § 22-2801 (sentenced to 12 months, to run consecutively to all other counts).
. D.C.Code § 22-3223(d)(2) (sentenced to 180 days on each count, to run consecutively to each other and to all other counts).
. Appellant also argues — and the government agrees — that his convictions for felony murder and second-degree murder merge, see Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991), as do his convictions for felony murder and robbery. See Page v. United States, 715 A.2d 890, 894 n. 6 (D.C. 1998).
. See supra note 6. Appellant also was charged with several other counts pertaining to alleged robberies of James Rose and Marion Dirda. These counts were severed from this case at a pretrial hearing.
. The defense offered no evidence or argument at trial that there may have been an intervening cause of Rosenbaum’s death after he had been struck with the pipe that would have exonerated appellant from criminal responsibility.
. The court answered "yes” to the second question, not at issue here.
. Davis v. United States, 510 A.2d 1051, 1052 (D.C. 1986) (per curiam) (citations omitted).
. Cox v. United States, 999 A.2d 63, 70-71 (D.C. 2010) (citations and internal quotation marks omitted) (reversing conviction for armed offense because of trial court's failure, in response to jury’s note, to reinstruct "with 'concrete accuracy' on the specialized legal meaning of 'readily available'” weapon); accord Preacher v. United States, 934 A.2d 363, 368-70 (D.C. 2007) (reversing convictions for manslaughter while armed and carrying a dangerous weapon because of trial court's refusal, upon request from jury, to define "assault,” as used in the self-defense instruction).
. Murchison v. United States, 486 A.2d 77, 83 (D.C. 1984) (citation omitted).
. See Graham v. United States, 703 A.2d 825, 832 (D.C. 1997) ("Because the trial court had already provided instructions regarding [the legal issue], and because of the trial court's concern that it not dictate the outcome of the case, we cannot say the court abused its discretion by” declining to provide any rein-struction.).
.Occasionally, too, other situations call for reinstruction upon request. See, e.g., Whitaker v. United States, 617 A.2d 499, 502 (D.C. 1992) (reversing conviction for armed offense because of trial court's refusal to reinstruct on relationship between two charged crimes when “jury indicated in successive notes to judge that it was ready to return a verdict that would be logically irreconcilable with his instructions” and with other charged offense); Potter v. United States, 534 A.2d 943, 946 (D.C. 1987) (reversing conviction for possession of a prohibited weapon with intent to use it unlawfully, when trial court refused to answer jury’s note on whether self-defense instruction applied to that charge, in addition to the assault charge).
. See supra note 11.
. Id.
. Id. at 367.
. See supra note 8.
. The government initially asked for an aiding-and-abetting instruction but dropped the matter after the defense objected: "But that’s not the evidence they’ve presented, your Hon- or. That would require the jury to create a factual scenario that’s not the Government's theory of the case. And then convict on that factual scenario.... You can't have a man prosecuted under a specific theory and then a jury instructed under a different theory."
. See Gray v. United States, 589 A.2d 912, 918 (D.C. 1991).
. See supra note 13.
. Graham, supra note 13, 703 A.2d at 831 n. 9.
. Id. at 832.
. Id.
. Defense counsel was permitted, however, to cross-examine Hamlin on the existence of this prior conviction and on the resulting lesser sentence he had received because of his cooperation with the government.
. Grayton v. United States, 745 A.2d 274, 279 (D.C. 2000) (citations omitted).
. Flores v. United States, 698 A.2d 474, 479 (D.C. 1997).
. Brown v. United States, 952 A.2d 942, 947 (D.C. 2008) (citations omitted).
. See supra note 27.
. McClellan v. United States, 706 A.2d 542, 549 (D.C. 1997). In support of his argument for admissibility of Hamlin’s Maryland testimony, appellant relies on two decisions of this court reversing convictions for sexual abuse because of the trial court’s refusal to permit cross-examination of a key government witness about her previous reports of similar abuse by other adults. See Obiazor v. United States, 964 A.2d 147, 151 (D.C. 2009) (cross-examination of complaining witness); Lawrence v. United States, 482 A.2d 374, 376-77 (D.C. 1984) (cross-examination of complaining witness’s aunt). Each defendant was awarded a new trial because counsel had been forbidden to challenge credibility by attempting to elicit evidence of prior false accusations. In this case, however, although Hamlin initially told the police a story — the ''urination” scenario — that was strikingly similar to his testimony in the earlier, Maryland case, he later admitted that this particular scenario, plus two other stories he had told, were all lies. Because the evidence before the jury was more than sufficient to establish Hamlin as a liar, the details of the Maryland case, apart from the fact of Hamlin's conviction itself, would have been of minimal additional value in attacking Hamlin’s credibility. Neither Obiazor nor Lawrence, therefore, compels the cross-examination appellant was seeking.
. See Hager v. United States, 791 A.2d 911, 914 (D.C. 2002) ("trial judge must balance the probative value of the evidence against the risk of prejudicial impact, including the risk of jury confusion from a ‘trial-within-a-trial,’ and may exclude marginally relevant evidence if it will distract the jury from the issue in this case”).
. Counsel asked whether the detective had suggested to him a scenario for what had happened; whether that suggestion was made before Hamlin mentioned appellant's involvement in the robbery; whether the detective had suggested that appellant had instigated the robbery; and whether Hamlin had "followed that suggestion and followed that story.” Hamlin responded affirmatively to each question.
.Counsel relies on our decision in Martinez v. United States, 982 A.2d 789 (D.C. 2009), where we held that the trial court erred when it precluded cross-examination of a police detective about information the defense had received indicating that the detective "had been relieved of his powers as a police officer and [was] under investigation for a number of matters.” Id. at 792. The concern was bias, i.e., that the detective would tailor his testimony to assist the government in an effort to curry favor that might help him during the investigation. In the issue before us, however, the concern was Hamlin's own credibility, not the alleged bias of the detective whose statements Hamlin’s counsel was seeking to introduce. But putting aside that distinction, Martinez is altogether inapposite for a reason more fundamental: the trial court here did not preclude all inquiry about Hamlin’s inter
. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (Fifth Amendment forbids "comment by the prosecution on the accused's silence”); Jackson v. United States, 623 A.2d 571, 585 (D.C. 1993) ("Fifth Amendment precludes the prosecutor from commenting on the silence of the accused”).
. Watts v. United States, 449 A.2d 308, 312 (D.C. 1982).
. Jackson, 623 A.2d at 586.
. Id.
. Id.
. Super. Ct.Crim. R. 7(d).
. See United States v. Rezaq, 908 F.Supp. 6, 8 (D.D.C. 1995) (construing Fed.R.Crim.P. 7(d) with operative words identical to Super. Ct. Crim. R. 7(d)).
. Id. (citing Wright, Federal Practice and Procedure: Criminal § 127, at 426).
. See Bailey v. United States, 544 A.2d 289 (D.C. 1988).
. See supra note 6.
Concurring Opinion
concurring:
I concur fully in the opinion of the court but wish to add this postscript. The trial judge’s discretion as to reinstruction
These two alternatives reveal the tension between the line of cases requiring trial judges to reinstruct when the jury is likely to misapply the law,
Although it may have been possible, defense counsel did not suggest a way for the judge to point out that no evidence had
. Davis v. United States, 510 A.2d 1051, 1052 (D.C. 1986) (per curiam).
. Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979).
. See Whitaker v. United States, 617 A.2d 499, 502 (D.C. 1992), and Potter v. United States, 534 A.2d 943, 946 (D.C. 1987) (both summarized in the court’s opinion, ante at note 14).
. See Graham v. United States, 703 A.2d 825, 832 (D.C. 1997). This decision is (summarized in the court’s opinion, ante at note 13).
Reference
- Full Case Name
- Percy JORDAN, Appellant, v. UNITED STATES, Appellee
- Cited By
- 13 cases
- Status
- Published