Appeals from the Superior Court of the District of Columbia (F-7105-00) (Hon. Lee F. Satterfield, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before SCHWELB and KRAMER, Associate Judges, and PRYOR, Senior Judge.
This appeal challenges the appellant's convictions for conspiracy to commit armed robbery, armed robbery, armed carjacking, kidnapping while armed, possession of a firearm during a crime of violence and carrying a pistol without a license. The appellant seeks reversal of these convictions on the grounds that the trial court erred in finding that his videotaped statement to the police was admissible at trial. He also argues that the trial court erred in denying without a hearing his post-conviction motion alleging ineffective assistance of his trial counsel pursuant to United States v. Cronic, 466 U.S. 648 (1984). We affirm.
The appellant in this case and his two co-conspirators, Gene Downing and Robert Moody, were indicted on March 20, 2001, for conspiracy to commit armed robbery, armed robbery, armed carjacking, armed kidnapping, first degree murder while armed, felony murder while armed (three counts), possession of a firearm during a crime of violence, and carrying a pistol without a license. The events underlying these charges occurred on May 5, 2000. On that date, the appellant, his two co-conspirators, and a fourth man, Leon Butler, who was charged separately, traveled from the Southeast quadrant of the District of Columbia to the Northwest quadrant in search of someone to rob. The appellant brought a gun for this endeavor. At around 11:45 p.m., the four men spotted the victim, 55-year old Vidalina Semino, walking to her car after finishing her shift as a waitress at a nearby hotel. The appellant and Butler approached Ms. Semino. Butler, who had obtained the gun from the appellant, pushed her to the ground, took her purse and car keys, forced her into the back seat of her car and then pulled around the corner to pick up Downing and Moody.
With the appellant driving, the four drove around for over an hour, at one point getting Ms. Semino out of the passenger compartment of her car and stuffing her into the trunk. Eventually they returned to the Southeast quadrant, and the appellant parked in a wooded area near 22nd and T Streets. There, Ms. Semino was pulled from the trunk and forced to give up the PIN number to her ATM card. The four defendants debated about whether or not they should kill Ms. Semino, since she had seen their faces and might, if left alive, be able to identify them. The group began walking toward the wooded area. Ms. Semino, who had been pleading for her life, began running. Butler chased and brought her back, whereupon Moody shot her twice in the chest, causing her death. Subsequent to the murder, the decedent's credit card and ATM card were used several times, which helped lead authorities to the appellant and the three other men involved in this crime.
Some months later, Gene Downing and the appellant were informed that detectives at the D.C. Metropolitan Police Department were interested in speaking with them. They agreed to do so and went together to police headquarters. Detective Reed, the lead detective on the case, interviewed Downing and arranged for the appellant to wait in an outer office with a couch and television that was also used by detectives and officers. During her questioning of Downing, Detective Reed garnered enough information about the appellant's involvement in Ms. Semino's death to arrest him on probable cause for the crimes committed against her. Detective Reed, who was still speaking with Downing, turned that responsibility over to her partner, Detective Jeffrey Mayberry, who placed the appellant under arrest and informed him of his Miranda*fn2 rights. The appellant executed a Police Department PD-47 form, waiving his right to remain silent and to have counsel present during the questioning, and agreed to provide a videotaped statement. In that statement, the appellant implicated himself in most of the crimes against Ms. Semino, but maintained that he had not wanted to kill her and in fact had urged the others not to do so.
Butler and Moody separately pleaded guilty to charges stemming from Ms. Semino's robbery, kidnapping, and murder. The appellant and Downing, however, went to trial on the charges and were tried together as co-defendants. During pretrial proceedings, the appellant's defense counsel filed a motion to suppress the videotaped police statement, claiming that he had invoked his right to counsel prior to speaking with Detective Mayberry, which rendered the statement inadmissible under Miranda principles.
At the hearing on this motion, the appellant testified that while waiting for Downing, he had told an unidentified detective at the station (neither Reed nor Mayberry) that he wished to call the attorney who was representing him in an unrelated case, but that he had not been provided with the opportunity to do so. Detectives Reed and Mayberry testified that the appellant had never made a request of either of them to speak to counsel, nor had they been made aware that he had made such a request of any other law enforcement officer. No other detective was called to testify at the hearing.
After recessing to view the videotape, the trial court found that the appellant's testimony that he had invoked his right to counsel was not credible. This conclusion was based on a number of factors that the trial court articulated. The judge noted that the appellant had voluntarily gone to the police station. Moreover, the unknown officer or detective to whom he had allegedly told that he wished to invoke his right to counsel was not, by the appellant's own admission, even involved with this case. In addition, the judge noted, the appellant admitted that when he met with Detective Mayberry, who advised him of his rights before asking him any questions, he did not hesitate to waive those rights on the PD-47. The court reasoned that if he had indeed invoked his right to counsel to an unnamed police detective, the logical point to reiterate that he had invoked his right to counsel would have been shortly thereafter, when Detective Mayberry was advising him of the rights he gave up by agreeing to answer questions. Further, the trial court noted, the appellant waived his rights yet again on the videotape. Indeed, the videotape itself provided the trial court with an opportunity to view the appellant's demeanor at a time not long after the time when he allegedly had invoked his right to counsel, and the trial court took that into account at the time of the ruling. Having considered all of these factors, the court found the appellant's assertion that he had invoked his right to counsel was not credible and ruled that the videotape was admissible.
At trial, the appellant's counsel conceded in his opening statement that the appellant was guilty of conspiracy, armed robbery, armed kidnapping and armed carjacking because he had admittedly participated in those crimes against the decedent.*fn3 On the other hand, counsel asserted that the appellant was not guilty of the murder charges and in fact had attempted to dissuade his co-conspirators from killing Ms. Semino. Moreover, he pointed out that the appellant had voluntarily gone to the police station and spoken with Detective Mayberry, admitting his participation in the robbery, kidnapping and carjacking. At that time, as counsel indicated, the appellant told Detective Mayberry that he had not wanted any part in the killing of Ms. Semino and had tried to talk the others out of killing her. He also had identified Robert Moody and Leon Butler as the ones who had been responsible for killing her.*fn4 In addition, appellant's counsel warned the jury to pay particular attention to the testimony of Butler, who had pleaded guilty to second degree murder while armed and armed kidnapping on the promise (1) that all other charges would be dropped if he agreed to testify against the appellant, and (2) that his cooperation with the government would be brought to the attention of the court at the time of his sentencing. This meant, counsel argued, that Butler necessarily had an interest in currying favor with the government through his testimony so that the government would speak favorably about his cooperation to the judge who would sentence him.
The government's evidence at trial included the appellant's videotaped confession, the testimony of the cooperating co-defendant, Butler, who described the appellant's role in the offenses of the evening that Ms. Semino was murdered, the testimony of a friend of the appellant to whom he had confessed, and other less central witnesses who corroborated the appellant's involvement in the crimes. The appellant testified in his own defense, adamantly denying his involvement with the murder, while conceding his guilt on all of the other charges.
Defense counsel's closing argument focused on the evidence and reasons why the appellant was not guilty of the murder charges. Ultimately, the jury convicted the appellant of conspiracy to commit armed robbery, armed robbery, armed carjacking, armed kidnapping, possession of a firearm during a crime of violence and carrying a pistol without a license. It was unable, however, to reach a verdict on the first degree murder or felony murder charges. Two months later, the appellant pleaded guilty to ...