Before Terry and Ruiz, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson, Senior Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Arthur L. Burnett, Sr., Motions Judge) (Hon. Noel A. Kramer, Trial Judge)
A jury convicted appellant Ricardo Veney of second-degree murder while armed, *fn1 for the killing of Sean Nelson, first degree murder while armed *fn2 for the killing of Eric Briscoe, possession of a firearm during a crime of violence, *fn3 carrying a pistol without a license, *fn4 and escape. *fn5 Veney appeals asserting: (1) the performance of his trial attorney was adversely affected by an actual conflict of interest; and (2) the trial court committed error in imposing a consecutive sentence for escape. We affirm Veney's convictions, but remand the case in part for resentencing.
In order to address appellant's allegation that an actual conflict of interest adversely affected the performance of his trial attorney, it is necessary to describe in more than the usual detail the factual basis of the charges, the manner in which the trial court dealt with the allegations of conflict of interest, and the manner in which defense counsel tried the case.
On January 6, 1995, three Metropolitan Police Department Officers, Daryl Isom, Monica Coleman, and John Brown, were about to have dinner at a Chinese restaurant on Pennsylvania Avenue, S.E., when they heard gunshots coming from nearby L'Enfant Square. Officer Isom testified that he saw the first victim, Sean Nelson, fall backwards to the ground. Describing the same incident, Officer Coleman testified that she saw two people standing about five feet apart. She saw the flash of a pistol from one figure as the other fell to the ground.
Officers Isom and Coleman got into their police car to drive to the location of the shooting. Officer Isom then saw Eric Briscoe running from L'Enfant Square, ducking behind cars. While Briscoe was running and looking over his shoulder, a gunman shot him, causing him to fall. The gunman then stood over Briscoe's body and shot him several more times. Officer Isom testified that the lighting was good, and that he saw the face of the gunman. Officer Isom was also able to identify the gunman based on a distinctive hat he was wearing, which had ear flaps and strings. Officer Isom yelled to his fellow officers, who were pursuing the gunman, mentioning the hat. Upon hearing Officer Isom yell to the other officers, the suspect removed the hat. Officer Brown apprehended Veney less than one block from the area where Briscoe had been shot. At trial, Officer Isom identified Veney as being the man who shot Briscoe. Officers Coleman and Brown identified Veney as the man they arrested.
When Officer Isom broadcast a description of the gunman over the police radio, he stated that the gunman was wearing all black. Similarly, Officer Coleman stated that she believed the shooter wore dark clothing. Veney was wearing a blue sweatshirt (of an undescribed shade), light blue jeans, and tan boots on the night in question.
Christopher Baylor, who lived on Pennsylvania Avenue, "heard gunshots coming from the front door of his house," and looked out of his window. Baylor saw one man running into an alley, and a second man moving away from a body. This second man was chased by police. Baylor saw a third person standing near a drug store, who backed away when the police arrived.
Officer Darrell Smith recovered a Colt 10 millimeter pistol from behind two trash containers when he retraced the path Veney took when he ran away from Briscoe's body. Five 10 millimeter bullets were found in Briscoe's body. Nelson, however, had been shot by a .45 caliber weapon.
At the police station, Veney told detectives that he had been dropped off at the scene by his brother-in-law in an Isuzu Rodeo, and that he was waiting to be picked up by somebody else to take him to a night club. Veney told detectives that he was at a pay phone near the scene when the shootings occurred.
Latif Stone testified on behalf of the government that he had been in jail at the same time that Veney was being held there for trial. He testified that he had a conversation there with Veney, and recounted that Veney stated that a man by the name of Richard Briscoe, *fn6 who was known as "Bones," had believed that shooting victim Nelson had been responsible for the killing of Steve Strohman, a friend of both Bones and Veney. *fn7 Stone testified that Veney further stated that Bones called him at home on the evening of the murders and picked him up. Stone testified that Veney also recounted that Bones was paged by Nelson, who wanted to buy drugs, and that Bones agreed to meet Nelson after leading Nelson to believe that Bones would sell him cocaine. According to Stone, Veney said that Bones and Veney intended to ambush Nelson and kill him. Veney stated that Bones dropped him off near the place where Bones was to meet Nelson, so he could be there in case Nelson came that way in an effort to escape. Bones, Veney stated, arrived at the prearranged meeting place and shot Nelson in the face. Meanwhile, Veney stated, another person who was with Nelson, Eric Briscoe, ran toward Veney. Stone testified that Veney said that then "I handled my business" (which suggested, in context, that he shot Eric Briscoe) but that Veney then added that he "didn't shoot the guy." Stone noted that at that point Veney was aware of another person in Veney's cell who "was trying to listen in," and testified that Veney "looked at him [the eavesdropper] and he looked at me [Stone] and he said I [Veney] didn't shoot him."
The government also presented evidence of frequent telephone calls between Bones and Veney. The government showed a total of ninety-five calls between Bones' cellular phone and either Veney's home or Veney's pager. On the night of the murders, the government showed, calls were made between a cellular phone Bones had stolen and Veney's home, Veney's pager, and Nelson's home. The record also shows that Bones was a friend of Veney's mother, with whom Veney lived.
In the early morning of January 7, 1995, while being detained by police, Veney slipped out of the police station. Veney remained at large for two days, turning himself in to police on January 9.
Veney presented a defense of innocent presence. He adduced testimony from Sharmane Minor and LaShawn Henderson that they had picked up Veney on the night of the murders to find a place to eat. Because the three disagreed over where to eat, the women dropped Veney off near an Amoco station on Pennsylvania Avenue. Veney testified that he then heard gunshots, and ran. While moving away from the gunshots, Veney testified, he was apprehended by police.
The issue of conflict of interest first came to the attention of the court before trial when the government filed a motion to disqualify defense counsel or to allow Veney to consult with outside counsel concerning his representation. The government alleged that Veney's counsel, Michael Statham, had a conflict of interest. Specifically, the government contended that Veney did not act alone, but that a second gunman, a "person unknown to the grand jury," shot Nelson. The government alleged that Bones was that person, and that Statham was being paid by Bones to defend Veney.
Statham filed an opposition, stating, "counsel . . . vehemently denied and continues to deny that Mr. Briscoe [Bones] had participated in or provided counsel fees" for the defense of Veney. Statham acknowledged that he had previously defended Bones in unrelated criminal charges in Maryland. He indicated that at that time Bones had gone by the alias of Tyrone Briscoe.
On the date that the first assigned Judge, Judge Arthur Burnett, had scheduled the case for trial, he held a hearing instead on the government's motion. *fn8 Judge Burnett voiced his skepticism about the government's allegations. He asked the Assistant U.S. Attorney, "Has there been any [corroboration]? Sometimes people shoot off their mouth when it doesn't have any truth to it." The government did not reply to this question. Judge Burnett continued to express his doubts:
But what concerns me is the fact that sometimes people do a lot of brouhaha in the community and there is no truth whether or not . . . . I mean that's a kind of a court issue as whether Richard Briscoe has anything to do with paying your [Statham's] fee. If he does, then, as a[n] officer of the court you so state, I mean that resolves the problem.
The Judge repeated this skepticism later in the hearing, stating, "I'm also familiar with the fact that [a] lot of people in drug conspiracies and crimes do a lot of bragging in the community about who they bought or who they haven't bought and so forth."
Statham replied to the government's allegations, stating, "I'm offended by this personally and professionally." He also asserted that he had no knowledge that his former client, Bones, had been implicated in this case. Judge Burnett asked Statham if his position was that Bones was not paying his fee, stating, "I take it at this point . . . that Richard Briscoe has nothing to do with paying your fee, period." To this, Statham responded, "That is exactly my -- my position." *fn9
Much of the Discussion concerning the alleged conflict of interest occurred at a bench conference, away from Veney, who was still seated at the defendant's table. Once Statham had denied that Bones was paying his fee, Judge Burnett called Veney to the bench to ask him about the allegations:
The Court: Without going into the issues of who is paying Mr. Stat[ha]m's fee at this point for you, do you know the name of a Richard Briscoe?
The Court: And with reference to no [sic] knowing Richard Briscoe, do you have any reason to believe that Mr. Richard Briscoe is ...