Appeals from the Superior Court of the District of Columbia (F-4564-00) (Hon. Michael L. Rankin, Motions Judge) (Hon. Henry F. Greene, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before WASHINGTON, Chief Judge, and KRAMER and THOMPSON, Associate Judges.
Appellant Zachary Wages was indicted on thirteen charges and at the conclusion of a jury trial was convicted of all.*fn1 He was sentenced to an aggregate term of 602 years to life imprisonment, and thereafter filed a timely notice of appeal (02-CF-142). While that appeal was pending, appellant filed a motion for a new trial pursuant to D.C. Code § 23-110 (2001), claiming ineffective assistance of counsel. The appeal of his convictions was stayed while hearings on the § 23-110 motion were conducted. Ultimately, the § 23-110 motion was denied and appellant also appeals from that denial (05-CO-323).
Appellant claims that the government failed to present sufficient evidence to sustain his conviction for Malicious Disfigurement While Armed, and that his two convictions for Possession of a Firearm During a Crime of Violence (PFCV) should merge. Appellant also challenges the denial of his motion for a new trial, alleging that his defense counsel was rendered ineffective by a conflict of interest, in violation of the Sixth Amendment.*fn2 We find the appellant's arguments to be without merit and affirm his convictions.
A. The Government's Evidence
The government's theory of the case was that appellant, a self-styled freelance jewelry merchant and regular presence at the National Jewelry Center ('NJC') on Wisconsin Avenue and O Street, Northwest, decided to rob the Hajar brothers after familiarizing himself with their routine. To that end, he stalked the brothers at the NJC on the day of these events, waiting outside the building in a white Jeep, then followed the brothers to a restaurant, in the same vehicle, and, with a getaway driver waiting for him behind the wheel, shot the brothers, robbed Ahmed Hajar, and absconded in the Jeep. The evidence adduced at trial overwhelmingly supports this theory.
The evidence at trial was that during the time period relevant to the instant offense, the victims, Mohamed Hajar and his younger brother Ahmed Hajar (hereafter for simplicity's sake referred to as Mohamed and Ahmed) lived in New York City and worked as jewelry salesmen. Pursuant to this employment, both men regularly traveled to retail jewelers to display samples of their products and take orders. Their regular habit was to travel together on Wednesdays from New York to Baltimore and then to the District of Columbia, where they met with customers at the NJC. The NJC is open to the public and provides space for independent dealers to set up booths. The activities and wares of the merchants are readily observable by anyone on the premises. After completing their business at the NJC, the Hajar brothers would continue their Wednesday routine with lunch at the Moby Dick House of Kabob on 31st Street in Georgetown (Moby Dick's), where they were known as regular customers.
On the day of the events at issue, the Hajar brothers engaged in their usual rounds, arriving at the NJC at approximately 1:30 p.m. and leaving some two hours later. Each carried a sample case that contained over $100,000 worth of diamond and gold jewelry. Upon leaving the NJC, the men put their sample cases in the trunk of their car and drove directly to Moby Dick's, arriving at approximately 4:00 p.m. As was their practice, they brought their sample cases inside the restaurant with them.
Initially, the brothers took a table near the restaurant's glass front door. Ahmed, however, became nervous when he noticed a man repeatedly peering through the door at them. He and Mohamed therefore moved to a table behind the door where they could not readily be observed from the street. Ahmed sat facing the door; Mohamed was seated with his back toward the entrance. The only others present in the restaurant's small, well-lit dining room at that time were a cashier named Hassan Tafaghodrad and a customer named Nora Falcon, who was waiting at the counter for a takeout order.
Shortly after 4:00 p.m., the man who had been peering in the door came inside and inquired about prices at the counter. Both Mr. Tafaghodrad and Ms. Falcon referred him to a menu board. The man ignored the menu, however, and approached the Hajar brothers. Mohamed, noticing a look of concern on his brother's face, stood up and turned around. At that moment, the man pulled a stocking down over his face, produced a revolver from the waistband of his pants, and, without uttering a word, shot Mohamed in the side. The bullet traveled straight through Mohamed and struck a wall. Ahmed stood up to help his brother, and the man shot him in the side, and then shot again but missed and hit the wall. Thereafter, Ahmed began grappling with the man for the gun. Pointing the gun above Ahmed's right eye and angling the muzzle downward, the man then shot Ahmed point 5 blank in the face. The bullet struck Ahmed just above his right eyebrow, traveled behind his right eye, ruptured the rear of the eyeball, continued down Ahmed's throat, and exited a few inches below his left earlobe. Ahmed fell to the floor, and the man grabbed Ahmed's sample bag and fled. As the man ran from the restaurant, Mohamed hit him with a chair. Still clutching the sample bag, the man ran toward a white Jeep Cherokee waiting nearby and entered the vehicle through the passenger side. The vehicle then sped away, as Mohamed, now bleeding heavily, stood outside the restaurant with his cellular phone and yelled for assistance.
Ambulances took the Hajar brothers to George Washington University Hospital Center. Mohamed's lungs had collapsed from the volume of blood in his chest. Surgeons were able to repair the damage, and he was discharged from the hospital one week later. Ahmed's ruptured eye, however, had to be removed. He now wears a prosthetic eye and is completely and permanently blind on the right side. He also lost 25% of the hearing in his left ear and has difficulty breathing because of the injuries he suffered.
Both Hajar brothers testified, and their accounts of their Wednesday routine and the events surrounding the robbery closely coincided. Hassan Tafaghodrad substantiated their accounts up until the moment when the robber fired the first shot. At that point, Mr. Tafaghodrad dropped to the floor behind the counter and did not emerge until after the robber had fled. He estimated that about ten shots were fired. Nora Falcon's account closely matched that of the other eyewitnesses in the dining area, although her narration of the actual shooting differed in sequence from those given by the Hajar brothers. According to Ms. Falcon, first Ahmed was shot in the eye; next the robber reached for the 6 bag; then Mohamed and the robber began to struggle over the bag. At that point, the robber shot Mohamed in the stomach and fled the store.
A bartender and a customer who were present at a restaurant across the street from Moby Dick's at the time of the shooting each testified that he saw a man leave Moby Dick's while carrying something and then enter the passenger side of a white Jeep. Both also said that this man was followed out of the restaurant by another man who was bleeding heavily and yelling into a cell phone. The bartender was "pretty sure" the defendant in the courtroom was the man he saw leave Moby Dick's and enter the Jeep.
Tasha Ford, an account executive, testified that on the day of the robbery, she was calling on customers in the neighborhood where the NJC is located when a man in a white Jeep got out of his vehicle, told her to smile for the camera and then took a picture of her. Ms. Ford testified that she was "very sure" the defendant in the courtroom was the same person who had taken pictures of her. Ms. Ford also stated that the photographer's white Jeep had been sitting in an illegal parking space in the vicinity of the Jewelry Center from at least 2:30 to 3:30 on the afternoon of the events at issue. Ms. Ford was shown photographs by the prosecution and identified them as those appellant had taken of her. One had also been taken from inside the photographer's vehicle and had captured the back portion of the vehicle in the rearview mirror. Ms. Ford identified the vehicle in the picture as the white Jeep she had seen the appellant entering and exiting several times during that afternoon.
Mai Ly Tran Lam testified that she is a jewelry merchant at the NJC and had conducted business with both the Hajar brothers and with the appellant. She said that on the day of the robbery, both appellant and the Hajar brothers had been at the NJC.
Ada Jones, the mother of appellant's girlfriend, Carla Wilson, testified that appellant drove both a brown Buick Riviera and a white Jeep with paper tags. Ms. Jones said she had seen the appellant operate the Jeep on several occasions in the months before the events at issue. She also testified that the last time she ever saw the white Jeep was the day after the robbery, when it was being driven by appellant's son.
Detective Lawrence Kennedy, who was the lead investigator, testified that five days after the robbery, when tips and eyewitness descriptions and identifications had developed appellant as a suspect, a search warrant was executed at the Northeast residence appellant shared with his girlfriend, Carla Wilson. The search recovered temporary paper tags from the District of Columbia, Maryland, and Virginia, all of which pertained to a Jeep with the same vehicle identification number (VIN), as well as insurance certificates for the Jeep. Investigators also impounded a brown Buick Riviera that appellant was known to drive. A search of this vehicle revealed additional insurance documents and another temporary tag, all of which related to a Jeep with the same VIN as that found on the tags and paperwork recovered from appellant's residence. Rolls of film were also recovered from the Buick that, when developed, showed pictures of Tasha Ford taken in Georgetown.
Detective Kennedy further testified that about a week after the robbery, he attempted to interview appellant's sister, Sandra Wages, whom he had learned was hospitalized at the George Washington University Hospital Center Burn Unit. At the hospital, however, Detective Kennedy observed that Ms. Wages was sedated, intubated and bandaged, and was in no condition to answer questions. Treatment providers at the hospital told Detective Kennedy that Ms. Wages had been severely burned, and that she had reported that she was injured as she tried to light the pilot light on ...