Before Farrell and Ruiz, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Herbert B. Dixon, Trial Judge)
This appeal raises a timely issue about the rights of criminal defendants in the context of judicial efforts to improve the jury system by soliciting jurors' views at the Conclusion of their jury service, but while aspects of the case are still pending before the trial Judge.
Appellant Johnny Harris was charged in a three-count indictment with first-degree murder while armed, D.C. Code §§ 22-2401, -3202 (1996), possession of a firearm during the commission of a crime of violence (PFCV), D.C. Code § 22-3204 (b), and carrying a pistol without a license (CPWL), D.C. Code § 22-3204 (a). After a jury trial, Harris was convicted of the lesser-included offense of second-degree murder while armed, and of the gun charges. Harris was sentenced on May 5, 1993, to serve consecutive terms of fifteen to forty-five years' incarceration for the second-degree murder while armed conviction, five to fifteen years' incarceration for PFCV, and one year of incarceration for CPWL. Subsequently, Harris filed a motion for a new trial pursuant to D.C. Code § 23-110 based on newly discovered evidence and ineffective assistance of counsel which was denied without a hearing on January 28, 1998. Harris filed timely notices of appeal from both his convictions and the denial of his § 23-110 motion, and we consolidated the cases for the purposes of this appeal.
On appeal, Harris asserts trial court error in (1) the denial of his motion to suppress statements made to Metropolitan Police Department detectives, alleging that the detectives entered his apartment without his consent, and in the alternative, that the statements were involuntary, made only after the police had threatened him with arrest; (2) the refusal to recuse itself in the sentencing phase after the court initiated an ex parte communication with the jurors; and (3) the failure to conduct a § 23-110 evidentiary hearing during which time he could have presented evidence of his counsel's failure to fully and adequately investigate the case. Finding merit only to his second claim, we affirm the convictions after concluding that the trial court's improper ex parte contact with the jurors was harmless.
According to the government witnesses, just after two o'clock in the afternoon on December 20, 1991, three teenagers exited a bus at a stop near the 2300 block of Minnesota Avenue, S.E. One of them left the area while the other two, appellant Harris and Damon Williams, remained. Harris spoke to Williams while the latter listened, hunching his shoulders with his hands on both sides of his back. Suddenly, Harris pulled out a gun with his right hand and aimed the barrel at Williams' temple before shooting him in the head. At no time before Harris pulled out his gun was Williams seen reaching towards his waistband or his coat pocket. After he shot Williams, Harris ran off in the direction of Pennsylvania Avenue.
William Hudson, a D.C. firefighter and emergency medical technician, stopped to administer CPR to Williams after driving by and seeing Williams laying on the ground near the bus stop. Hudson did not see any weapons in Williams' waistband area or on the ground. An autopsy of Williams' body revealed that the bullet which had killed him had entered the left side of the scalp and continued through the brain to the soft tissue on the right side of the scalp.
About three months after the shooting, on April 10, 1992, Detectives William Porter, Joseph Fox, Jeffrey Mayberry, and Victor Smith, all from the Metropolitan Police Department, went to Harris' apartment in order to speak with Harris about the murder. *fn1 The detectives pressed the buzzer for Harris' apartment and were let into Harris' building and unit. Harris was not placed under arrest, but accompanied the officers back to the police station. After Detective Porter had reviewed a PD-47 "rights card" containing the Miranda warnings, Harris signed the card and proceeded to discuss the shooting with Detective Porter for the next forty minutes, agreeing to give a videotaped statement. In the statement, Harris admitted that he shot Damon Williams, but claimed that he did so in self-defense. Harris stated that they had been feuding over drug territory a few weeks before the incident, and that he had been carrying a gun in his right coat pocket for protection. Just before Harris shot Williams, Williams had "reached into his pants and said, `What's up now, bitch nigger?'" Harris then reached into his right coat pocket, pulled out his gun and shot Williams on the side of the head in self-defense. After shooting Williams, Harris went home, but sometime later went out again and threw the gun into the Potomac River.
Harris asserts that the warrantless police entry both into his apartment building as well as into his apartment unit violated his Fourth Amendment rights because the police did not have the requisite consent to enter either one. Consequently, he argues that his later statements given at the homicide office should have been suppressed as fruits of an illegal search. In the alternative, Harris argues that the statements should be suppressed because they were made involuntarily after Harris was threatened with arrest and told that he would be allowed to go home only if he made a statement. We reject these ...