Appeals from the Superior Court of the District of Columbia, (Cr. No. F-2713-94) (Hon. Shellie F. Bowers, Trial Judge)
Before Ruiz, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appellant Ronald C. Artis was convicted of first degree murder while armed, two counts of assault with intent to kill while armed, conspiracy to commit those crimes, and related firearms offenses. The trial judge denied his motion for a new trial pursuant to D.C. Code § 23-110 (2001) without a hearing. In this consolidated appeal, we uphold that denial and affirm Artis's convictions. The main issue before us is whether Artis's trial counsel was constitutionally ineffective in failing to move to suppress murder weapons and ammunition recovered by the police when they searched Artis's home in his absence. Artis contends that his counsel should have investigated the circumstances of the search and then moved to suppress this evidence on the grounds that the police (1) invited a television news crew to observe the search without judicial authorization and for no legitimate law enforcement purpose, (2) violated the so-called "knock and announce" rule when they forcibly entered his residence, (3) did not obtain the warrant authorizing the search until after they conducted it, (4) used excessive force in restraining members of his family who were present during the search, and (5) did not file a timely warrant return in court following the search.
In denying a new trial, the trial judge concluded that Artis was not prejudiced by his counsel's failure to move to suppress the weapons and ammunition because the other evidence of his guilt was overwhelming, and alternatively, Artis had not shown that a motion to suppress evidence likely would have been granted. We affirm on the latter ground, though our reasons diverge from those of the trial court. First, the fact that a television news crew accompanied the police (and videotaped part of the search for later broadcast), arguably in violation of the Fourth Amendment, did not provide a reason to exclude evidence that the police found and seized themselves without the news crew's assistance. Second, Artis did not have standing to raise a knock and announce violation, as he was absent from the scene when the violation allegedly occurred, and he sustained no injury from the property damage that the police caused when they entered by breaking down his front door. Third, Artis's claim that the police obtained their search warrant only after searching his residence was conclusory, unsupported, and at odds with the record. Fourth, Artis did not have standing to complain about police use of allegedly excessive force against others, nor was that a ground on which to exclude evidence found in an otherwise lawful search. Fifth, the failure of the police to file a timely return in court also did not provide a ground on which to exclude evidence, at least absent a credible claim by Artis that he was prejudiced by the delay. *fn1
The Evidence at Trial *fn2
According to the government's evidence, the drive-by shooting for which Artis was on trial was a not atypical episode in the hostilities between rival street gangs in the Northeast quadrant of the District of Columbia in 1992. In these hostilities, the Rosedale crew, led by Artis, was allied with the E Street crew against their common enemy, the 15th and Duncan Streets crew.
In July of 1992, someone believed to be a member of the 15th and Duncan Streets crew shot Artis in the chest. Members of the Rosedale crew testified at trial that Artis vowed revenge. Another government witness, affiliated with the E Street crew, testified that Artis also was "real mad" at the 15th and Duncan Streets crew for killing one of his friends and seriously wounding another.
Three months later, on the afternoon of October 16, 1992, members of the 15th and Duncan Streets crew were playing craps at the intersection of those two streets when a yellow station wagon drove up and its occupants opened fire. The shooters killed one crew member and injured two others.
Members of the Rosedale and E Street crews, including the driver and shooters in the station wagon, testified that it was Artis who orchestrated the shootings earlier in the afternoon from a neighborhood crack house. These witnesses said that it also was Artis who supplied the weapons for the mission: a nine millimeter handgun which he removed from his waistband, and a pump shotgun and a .45 caliber pistol, both of which he retrieved from a hole in the ground near a fence in the backyard of his family residence. One of the E Street crew witnesses testified that he rode in the station wagon and fired a full clip (seventeen shots) from the nine millimeter gun at the 15th and Duncan Streets crew members. Another witness said he fired the .45 caliber pistol once before it jammed. No one actually fired the shotgun. After the shooting, the driver of the station wagon returned the weapons to the hiding place by the fence in Artis's backyard. The shooters then reported back to Artis at the crack house.
A Rosedale crew member who testified that he was with Artis at the time of the shooting identified three government exhibits, a nine millimeter handgun, a shotgun and a .45 caliber pistol, as the same weapons Artis had distributed on October 16, 1992. Police officers testified that they had seized the nine millimeter handgun along with nine millimeter ammunition in a search of Artis's home during the early morning hours of November 6, 1992. During the same search, the police recovered the shotgun from the hole by the fence in the backyard. The police seized the .45 caliber pistol in a separate search of the crack house where Artis planned the shooting. A police firearms examiner testified that two bullets removed from the body of the murder victim, as well as shell casings and fragments found at 15th and Duncan Streets, were fired from the nine millimeter handgun. Moreover, according to the examiner, the ammunition seized at Artis's home was the same brand as the shell casings and fragments recovered at the crime scene. Additionally, the examiner testified that a shell casing which the police found after the shooting in an abandoned yellow station wagon four blocks away from 15th and Duncan Streets was fired by the .45 caliber pistol.
The police witnesses testified that they searched Artis's residence on November 6, 1992, pursuant to a search warrant. Because they were looking for weapons, the police executed the warrant at 5:00 a.m., in the hope that the occupants would be asleep. When they arrived, the officers knocked on the front door, announced "police," waited twenty to thirty seconds without hearing a response, and then broke down the door with a battering ram. While Artis himself was not home, other members of his family were present. A television news crew, having been alerted by someone to the imminent execution of the warrant, accompanied the police to the scene. The news crew remained outside the house and videotaped the recovery of the shotgun in the backyard.
The Motion to Set Aside the Convictions
Artis was sentenced in December 1995. He filed a timely notice of appeal. In 1999, this court granted Artis's motion to stay his appeal while he litigated a motion in the trial court to set aside his convictions pursuant to D.C. Code § 23-110. In that motion, Artis charged that his trial counsel was constitutionally ineffective, mainly in not moving to suppress the evidence seized from his home on November 6, 1992, on the grounds mentioned above. *fn3 According to the affidavits of his parents which Artis submitted in support of his motion, his father was awake when the police arrived at their home, and the police did not knock or announce their presence before they broke in. After they entered, the officers allegedly moved Artis's parents, their three daughters and their baby grandson into the living room, where Mr. Artis and two of his daughters were kept with their hands uncomfortably cuffed behind their backs for about two hours, until the search was completed. The Artises did not learn that a television crew was outside during the search until afterward, when friends told them that their house and yard were on the news. (In his motion papers, Artis proffered that the broadcast showed the police reenacting their discovery of the ...