Appeals from the Superior Court of the District of Columbia (F-1484-95) (Hon. Truman A. Morrison, III, Trial Judge) (Hon. Hiram E. Puig-Logo, Post-Trial Motions Judge)
Before Terry, Farrell, and Reid, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appellant Bailey was charged with various offenses arising out of events that resulted in the murders of Andre Briscoe, Kimberly Smith, and Henry Bost. After a six-day jury trial, he was convicted on two counts of first-degree burglary, two counts of possession of a firearm during a crime of violence ("PFCV"), two counts of armed robbery, three counts of first-degree felony murder, two counts of first-degree premeditated murder, assault with intent to kill while armed ("AWIKWA"), and assault with a dangerous weapon ("ADW"). On appeal from these convictions, he argues (1) that the cumulative effect of improper comments made by the prosecutor during his opening and closing statements, together with the prosecutor's pervasively leading questions, prejudiced his defense; (2) that there was insufficient evidence to convict him of AWIKWA and ADW; and (3) that several of his convictions merge. While his direct appeal was pending, appellant also filed a motion under D.C. Code § 23-110 (2001) asserting that his trial counsel rendered ineffective assistance. After a hearing, the trial court denied the motion. Appellant then noted a second appeal, which we consolidated with the first.
We hold that the prosecutor's comments, although they sometimes crossed the line of propriety, do not warrant a new trial and that there was sufficient evidence to sustain appellant's conviction of AWIKWA. In addition, we affirm the trial court's denial of appellant's § 23- 110 motion. W e also hold, how ever, that there was insufficient evidence to support appellant's conviction of ADW (though the evidence was sufficient to convict him of the lesser included offense of simple assault) and that some of his convictions merge. We therefore affirm the convictions on the merits (except for the ADW, which we reduce to simple assault) and remand the case to the trial court for resentencing.
Roy Irby owned a house on Pleasant Street, S.E., which he operated as a "crack house," a place where people would come to buy and use crack cocaine. Appellant was the primary seller of crack cocaine at that house over a period of six or seven months in the latter part of 1994. On Saturday morning, December 10, 1994, two men broke into Mr. Irby's house while all of its occupants were asleep. One of the men (later identified as appellant) was slightly taller than the other, but both were about six feet tall and were wearing blue jump suits and black face masks. Mr. Irby and two other men, Percy Settle and Edward Judge, were sleeping on two couches and a chair in the living room. One by one, the two intruders woke them up at gunpoint and ordered them to disrobe, surrender various personal items, and lie down on the couch or the floor. The intruders then covered the three with blankets to prevent them from seeing, but Mr. Judge was able to adjust the blanket that covered him so that he could see through a hole in it.
A short time later, Andre Briscoe knocked at the door of the house. Although the hostages heard the knocking, appellant did not respond until his accomplice walked in front of him, waved to him, and repeated, "Somebody's at the door." Appellant then told Briscoe to go around to the back door. When Briscoe entered through the back door and was confronted by one of the intruders, he said, "I'm not going for this shit, man." A fight ensued, and Briscoe was killed. *fn1 The intruders brought his body into the living room, and appellant said to the hostages, "That's what happens to mother fuckers that buck on me."
The intruders then started rummaging through the first floor rooms until they heard Sharon Smith, another occupant of the house, moving around upstairs. They ordered Mr. Judge to call Ms. Smith downstairs, and when she came down, they took her pocketbook, ordered her to lie on the floor with the others, and put a blanket over her. In addition to Ms. Smith, two other men joined the hostages on the living room floor that morning. Johnny White, Jr., and Anthony Chisley both came to visit Mr. Irby, one shortly after the other. When they arrived and knocked on the door, they were sent around to the back. Once at the back door, they were brought inside and ordered to strip and lie on the floor, where they too were covered with blankets.
After the intruders had everyone under control in the living room, they went to the second floor and brought down the two remaining residents of the house, Henry Bost and Kimberly Smith. M r. Bost and Ms. Smith had been sleeping in a room upstairs. Once they were downstairs, appellant stated, "These are the mother fuckers we want, the ones we're looking for." *fn2 Then, with Kimberly Smith pleading for her life and offering to "pay him" and "make it up," appellant stabbed her repeatedly. *fn3 After a short tim e, he turn ed to Henry Bost, who was lying face down on the floor, and stabbed him multiple times. *fn4 When appellant ceased stabbing Bost, Mr. Judge, fearing that he would be next, sprang up and jumped through the front window, taking appellant with him. Appellant stabbed Mr. Judge in the leg, but Judge was able to escape, clad only in a pair of boxer shorts. Appellant chased him up an alley for about half a block until Judge managed to give him the slip. Judge then flagged down a passing police car, told the officers inside what had happened, and directed them to Roy Irby's house. The two intruders, however, fled from the house before the police arrived. Mr. Judge, in fear for his life, went to a bus station later that day and caught a bus out of town. H e eventually made his way to Tampa, Florida, where he remained for several weeks. *fn5
The next day, the police received a 911 call from a man who said his name was "Mike" and claimed to have information about the murders in Mr. Irby's house.
The caller stated that on the night before the crime he had given two blue jump suits to "Kebe" and "Larry," who had told him they were going to commit a robbery. The police had, in fact, discovered a bag containing two blue jump suits, ski masks, a burgundy jacket, and a knife a short distance from Irby's house on the day of the crime. Investigating officers were able to trace the jump suits, which were Unifirst work uniforms, to appellant through his former employer. A few days later the police approached appellant and questioned him about the suits. During the interview, appellant admitted that he had made the 911 call and identified the jump suits and the burgundy jacket as his, stating that he had left the jacket at Mr. Irby's house on a recent visit. He also identified "Kebe" and "Larry" as Keith Robinson and Thomas Harley. *fn6 Acting on this information, the police arrested Robinson and Harley. They were both released the next day, however, after the police concluded that neither of them was involved in the murders. *fn7
In January 1995 Mr. Judge returned from Florida and was interviewed by Detective Gregory Archer of the Homicide Branch of the Metropolitan Police. He told Archer that he recognized appellant as the taller of the two intruders from his voice and his behavior, and he positively identified appellant's photograph from an array of photographs. The police then arrested appellant and charged him with the murders. Mr. Judge was later placed in the witness protection program.
The government presented testimony from several witnesses who were familiar with Mr. Irby's house. All of them stated that it was a crack house. They also testified that appellant was the main supplier of crack to visitors at the house and that he was a stickler for money. Several of the witnesses said that Henry Bost owed appellant a small amount of money during the weeks before his death, and that they had heard appellant threaten to kill Mr. Bost if he did not pay his debt.
Evette Tinch was one of the witnesses who testified about Mr. Irby's home and the fact that it was a crack house. Ms. Tinch helped appellant with his drug business at the house, keeping detailed records of the sales and of how much each purchaser owed (see note 2, supra). She acknowledged that she also had an intimate relationship with appellant despite the fact that she was romantically involved with another man. *fn8 Although she was not present at the house when the murders occurred, she was there the previous night. On that night, M s. Tinch testified, appellant was wearing a blue jump suit, a black knit cap, and a burgundy jacket, and she identified some of the articles of clothing found by the police near the scene of the crime as the ones she saw appellant wearing. Ms. Tinch also stated that appellant was carrying a silver handgun similar to one that the hostages described as used by the intruders. Deborah Conyers, another frequent visitor at Mr. Irby's, also saw appellant that night and corroborated Ms. Tinch's testimony.
Several of the people who were held hostage at the house that morning testified that appellant was of the same height and build as the taller of the two intruders. Additionally, Percy Settle said that one of the intruders was wearing a burgundy jacket under his jump suit that was similar to appellant's, and Johnny White stated that after the murders he saw appellant's brother in possession of a distinctive watch that the intruders had taken from him. Finally, Mr. Judge identified appellant in court as one of the intruders, even though both men wore masks. He explained:
Well, I have been seeing George Bailey every day for months, listening to him talk and have conversations with various people, sitting at a table with him, listen to him talking about Henry [Bost] and different things. And I recognized his voice.
Mr. Judge and other witnesses testified that appellant had a hearing problem, which was consistent with the fact that the taller of the two intruders could not hear the knocking at the door when Mr. Briscoe arrived. As Mr. Judge described the situation, "[T]his other guy had to get his attention. He didn't seem to hear when someone was knocking on the door." *fn9
Appellant himself did not testify, but he presented an alibi defense through the testimony of friends and relatives. According to those witnesses, he spent the night with his girl friend, and in the morning he went with his brother to borrow a truck from a friend. When the truck was unavailable, appellant spent time at the home of his girl friend's daughter while his brother attempted to obtain a truck from another source.
Before the case went to the jury, the court granted a judgment of acquittal on six counts of armed robbery and three counts of felony murder based on those robbery counts. The government also dismissed one of the three PFCV counts. The jury acquitted appellant of the premeditated murder of Mr. Briscoe but found him guilty on all the remaining counts that it considered.
Nearly three years after his convictions, appellant filed a motion under D.C. Code § 23-110 asserting that his trial counsel (now deceased) had been ineffective. Although appellant found fault with several aspects of counsel's performance, his main contention was that counsel had failed to cross-examine Mr. Judge about several alleged inconsistencies between his trial testimony and his statements to the police. After a hearing, *fn10 the court denied the motion. The court expressed concern about counsel's performance, but concluded that "there is not a reasonable probability that any error affected the outcome of this tria l."
Appellant argues that the cumulative effect of allegedly improper comments and actions by the prosecutor, both in his opening and closing statements and during the trial in the form of leading questions, was so prejudicial as to require reversal. In effect, appellant contends that the trial court abused its discretion by failing to grant a mistrial for these improprieties or, at a minimum, by failing to take more rigorous corrective measures to remedy them. See Irick v. United States, 565 A.2d 26, 33 (D.C. 1989). In evaluating such claims, we must first determine "whether any or all of the challenged comments by the prosecutor were improper." McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991); accord, e.g., Harris v. United States, 602 A.2d 154, 159 (D.C. 1992) (en banc); Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989). If they were, then, "viewing the remarks in context," we must consider the gravity of the impropriety, its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government's case in determining whether the comments resulted in "substantial prejudice." McGrier, 597 A.2d at 41 (citation omitted). The test for substantial ...