October 9, 2008; as amended October 15, 2008 and December 17, 2008
Appeals from the Superior Court of the District of Columbia (F-3113-00 and F-7080-00) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ, Associate Judge, FARRELL, Associate Judge, Retired,*fn1 and BELSON, Senior Judge.
Appellants Ronald Brisbon and Michael Wonson appeal their convictions for first-degree murder, assault with intent to kill and related offenses. Brisbon challenges the admission of his videotaped confession claiming it was involuntary, the denial of his motion for mistrial after an unanticipated month-long delay midway through the trial, and the admission of other crimes evidence. Wonson challenges the denial of his motion for severance as well as the denial of his post-conviction § 23-110 motion claiming ineffective assistance of counsel in that his lawyer did not present an alibi defense promised in opening statement. Both appellants argue that the prosecutor's closing argument improperly shifted the burden of proof to the defense and should have led to mistrial. We conclude that none of Brisbon's claims of error requires reversal of his convictions, which we affirm. Although we consider that the deceptive tactic used by the officers in interrogating Brisbon make the question of voluntariness a close question, we conclude that admission of his videotaped confession was harmless in light of the government's otherwise overwhelming evidence against him. We agree, however, with Wonson's claim that he was prejudiced by the admission of Brisbon's unredacted out of court confessions--which also incriminated Wonson in the charged murders--at their joint trial, and by the trial court's denial of his motion to sever and institute a separate trial against him. We, therefore, reverse Wonson's convictions and remand for a new trial.
Because the strength of the government's case is dispositive with respect to several of the legal challenges raised by appellants, we recount the evidence presented at trial in detail.
Dana Route testified that at the time of the crime, she was "Ronnie T" Brisbon's ex-girlfriend; they remained friends and worked together at C&T Auto Shop in Fort Washington, Maryland. On the evening of Tuesday, May 16, 2000, she went with Brisbon in her Honda to meet "Pretty B" Wonson and two other men at the 4600 block of Hillside Road, S.E., where they bought a black Ford F-150 truck from Michael Cobb for $60. Wonson drove the truck away.
The next day, around 9 p.m. on Wednesday, May 17, 2000, Brisbon and Ms. Route picked up Wonson in Ms. Route's car and drove to where Wonson had parked the truck behind an apartment building on Benning Road. Wonson then went into the woods near the truck and returned to the car. The three went to Brisbon's grandmother's house. While there, Ms. Route saw Brisbon cleaning two rifles with WD-40 while Wonson stood nearby. Appellants each grabbed a gun and Brisbon invited Ms. Route to accompany them. She refused to go, but gave appellants the keys to her car. She recalled that Brisbon was wearing a black ballcap, black T-shirt, and blue jeans. Brisbon and Wonson returned in under twenty-five minutes, guns still in hand. After they came into the house, Brisbon said to Wonson, "I can't believe that your gun jammed."
About fifteen minutes later, all three left the grandmother's house in Ms. Route's car, with one of the appellants concealing the guns in a black shirt. Wonson got out in an alley behind the grandmother's house. Brisbon drove the truck to Prince George's County while Ms. Route followed him in her car. Brisbon parked the truck in a residential neighborhood and set fire to it with a lit napkin. They then went to Brisbon's house in Ms. Route's car for the night.
The following day, Thursday, May 18, 2000, Ms. Route was watching the news on TV while at work when she saw a report "that two people were killed on East Capitol Street" and that "a burnt truck" was suspected as being involved. Ms. Route put two and two together and confronted Brisbon. At first, Brisbon denied killing anyone, but then recounted a version of events that made it fairly obvious that he did. Specifically, Ms. Route testified, Brisbon told her that "Pretty B [Wonson] was looking for somebody," and when he and Brisbon spotted the target, "Pretty B had got out of the truck and fired [bullets] into a crowd." Brisbon told her that he saw a car trying to evade them by making a U-turn, so he shot at that car, and saw that "the person in the car had slumped over the steering wheel." Ms. Route was impeached with her initial statements to the police denying any knowledge of the crime to the police. She said that her parents, who are retired police officers, convinced her to testify after explaining that she could be considered an accessory-after-the-fact or a perjurer if she failed to tell the truth to the grand jury or at trial.
Michael Cobb, testifying with use of immunity with respect to charges involving the stolen Ford truck, claimed that he sold the Ford F-150 truck to Brisbon. He remembered that appellants arrived in a small car which may have been a Honda. Cobb recalled that Brisbon--whom he knew as "T"--was talking about fighting "them," but didn't know who "them" referred to.*fn2 When shown a photo array, he recognized Wonson because his hair was styled in dreadlocks and identified both Brisbon and Wonson from the array; he also identified the burned Ford F-150 truck as the one he had sold.
Eyewitnesses to the Murders
Nikita Sweeney testified that she was the one who made the U-turn that caught Brisbon's eye. She had dropped off and was waiting for her friend, murder victim Ivory Harrison, who was looking for her lost purse at Eastern Senior High School at around 11 p.m. on May 17. According to Ms. Sweeney, there was a crowd of about fifteen to twenty people gathered in front of the school, drinking and talking. As she started the U-turn, she saw "a boy" get out of a "black pickup truck" and fire, first into the air, and then into the crowd of people outside the high school. When he then "point[ed] his gun towards" her, she hid under her dashboard. As she opened her eyes, Ivory Harrison had gotten back in the car, but both young women decided to crawl out of the car's passenger side door to escape the shots that were still being fired at their car. Almost as soon as they started, however, both were shot. They tried to run to safety; Ms. Harrison was too injured to run, but Ms. Sweeney, who had been shot in the left leg, made it to a group home across the street, from where she was taken to D.C. General and hospitalized for a month. Ms. Sweeney could not say how many shots were fired, but she thought they came from an automatic gun that looked like a rifle, and that the shots had been fired in a steady stream without any break. She was not able to pick her assailant out of a photo array,*fn3 but she was certain that he was a black male dressed in "all black," including a "black baseball cap," and that he had gotten out from the passenger side of the black pickup truck. She also said that there was only one person shooting and that the shooter had only one gun.
Seventeen-year-old Jameice Phillips testified that she was around Eastern High that night talking in a group of about thirty people, when a "black pickup truck pulled up." She saw the passenger come out of the truck,*fn4 and fire "one big loud gunshot," "a loud boom" and then "a lot of other gunshots." Her friend"Peabo," Charles Jackson, was one of the persons shot dead. According to Ms. Phillips, there was only one shooter, who was wearing a bandanna or scarf across the forehead; she did not see the driver. She identified Brisbon, whom she knew from her neighborhood for about five years as "Ronnie T, " as the shooter.
Metro Transit Police Officer Eric Croom was patrolling the area, which is near the Stadium-Armory Metro station, when he heard gunshots. At what he estimated to be 11:25 p.m. he saw through his rear view mirror a car stopped horizontally in the middle of the street about a block and a half away, then saw the flash of gunshots coming from the driver's side. He immediately radioed the Metropolitan Police and began assisting the victims. He saw Ms. Harrison lying on the ground by Ms. Sweeney's car, and found Mr. Jackson, bleeding from the head, without a pulse. He could not describe the person who fired the shots, but thought there was only one shooter, because he saw a "series" of flashes from what appeared to be a single gun muzzle.
Experts and Physical Evidence
Metropolitan Police Department Firearms Examiner Michael Mulderig took the stand as a firearms expert. He testified that on May 31 he began his examination of the 45 shell casings (caliber of 7.62 mm.) that were recovered outside the school. He concluded that they could have been fired from an assault rifle, such as an AK-47, and that the shell casings had been fired from two different rifles. Corroborating Ms. Route's testimony that Brisbon said to Wonson, "I can't believe your gun jammed," he testified that one cartridge found at the murder scene "was attempted to be fired but did not fire."
James Sullivan, a fire investigation expert, testified that the Ford F-150 truck was set on fire with a "lit ordinary combustible" on the front passenger seat, which also corroborated Ms. Route's testimony.
Police Testimony Regarding Brisbon's Confession
Brisbon was arrested at 11:30 a.m. on May 24 at his place of work (C&T Auto Shop) by the Prince George's County, Maryland police. He was wearing a bulletproof vest. D.C. Metropolitan Police Department Detectives Michael Irving and J.O. Johnson arrived at the police station in Prince George's County between 3-4 p.m. that day. Detective Irving gave Brisbon a hamburger and Brisbon agreed to waive his extradition rights, but they did not discuss the shooting. The detectives then drove Brisbon to the District of Columbia in a patrol car, chatting idly, and did not talk about the shooting.
Once they arrived at the D.C. police station, Detective Irving took Brisbon to an interrogation room and told him that he was under arrest for two murders on May 17, and had been "identified as being a shooter that night." The detective "told [Brisbon] just to listen and let [Det. Irving] tell him what [the police] knew about the case and what he was being charged for." Detectives Credle and Irving testified that they did not ask Brisbon any questions or discuss the facts of the case further until Brisbon signed the PD-47 form waiving his Miranda rights at 7:14 p.m. See Miranda v. Arizona, 384 U.S. 436 (1966)
The detectives then began interrogating Brisbon, and, during the first fifteen minutes, Brisbon denied everything. Detective Irving told him that they had searched the house where Brisbon lived with his mother and grandmother and "that the police recovered drugs and a shotgun out of his grandmother's house,"--which was true--and "that his grandmother had got upset and was rushed to the hospital and that his mother was placed under arrest"--which was false. According to the detectives, Brisbon dropped his head and was quiet for a few seconds, then admitted that he "did it," saying that he did not "want anyone else to get in trouble." Detectives Irving and Credle insisted that Brisbon give them all of the details of the crime, because a blanket confession would not convince them that he had told the truth. The detectives denied promising Brisbon that confessing would aid his mother or grandmother. The interrogation continued for two hours, until, at around 9:30 p.m., Brisbon consented to a videotaped confession.
Brisbon's videotaped confession, given on May 24, the day he was arrested, was introduced during the government's case-in-chief. To avoid tainting Wonson's trial, however, the trial judge originally permitted the jury to see only a redacted version of the videotape, which excised all references to Wonson's involvement. The trial judge told the jury that the excised portions were legally irrelevant.
In the redacted videotaped confession, Brisbon said that he bought the truck from "George" and "someone else." He then drove both men home in Dana Route's Toyota. He said that his motive for the shooting was revenge for an unidentified "friend" who had been assaulted in a club. Brisbon recounted the drive-by shooting with himself as the driver and the friend as the passenger, and remembered such details as cleaning the weapons with WD-40 beforehand, as Ms. Route had testified. He also claimed that he turned the truck over to someone else to be burned.*fn5 Toward the end of the confession, the detective asked Brisbon, "what would you say... If I told you that all the shell casings that were out there... all came from the same gun"? Brisbon answered, "that's impossible."
Brisbon, who was in his mid twenties, took the stand at trial. He denied any involvement in the crimes and explained that the videotaped confession was a fabrication produced under detailed police direction during two hours he spent alone with Detective Irving, and under severe emotional duress, because of the lies the detectives had told him about his mother's and grandmother's distress. He testified that after "at least like eight to nine hours" in custody and "four or five hours" of denying involvement, and repeatedly asking about his family ("like maybe 20 or more" times) the police told him that his mother and grandmother were "locked up" as a result of the contraband found during the search of their house. According to Brisbon, he told the officers that he "was willing to take the charge of whatever they found at her house," but "the police told [him] I couldn't do it unless [he told] them "what they wanted to hear." He thought that his ex-girlfriend, Dana Route also had been arrested as an accessory in the shooting deaths, and he wanted to keep her out of it. Brisbon testified that he had falsely implicated Wonson in his confession because the detective told him two guns had been involved in the shooting and he wanted to protect his family and to avoid the version that the police were trying to get him to confess to, in which he, and Dana Route were the shooters. He claimed that Wonson was a vague acquaintance whose name he did not even know until Detective Irving mentioned him.
To rebut Brisbon's testimony, the prosecutor played the entire, unredacted videotaped confession during cross-examination.*fn6 The prosecutor also introduced a letter that Brisbon had written to Wonson from the jail,*fn7 in which he promised to "take the dive on this shit by myself" and that he would tell the jury "some sucker shit like the police" were coercing him to confess.*fn8
On cross-examination, Brisbon admitted that immediately after the videotaped confession he had also met with another detective and FBI agent concerning their investigation of another crime. During that interview Brisbon confessed to "half a dozen" unrelated crimes, and also gave information about other crimes in which he was not involved. Brisbon dismissed these volunteered confessions as a way to slander "people I didn't like," while offering information to the police in the hope that would help exonerate his mother, grandmother and Dana Route. Brisbon also admitted to having had a third meeting that night, with a different detective, and said the information he gave then also was false.
Finally, the prosecutor asked Brisbon about statements he had made at a "debriefing" meeting that Brisbon's counsel had requested two weeks before trial.*fn9 Brisbon admitted that at that meeting, with counsel by his side, he repeated what he had said in the videotaped confession, including details about Wonson having approached him because he had a "problem" and he knew Brisbon had a gun. Wonson was seeking to retaliate for a fistfight he had at a club. According to Brisbon, someone from the 17th & Compton/Independence neighborhood had punched Wonson at the Heart & Soul Nightclub, and, in retaliation, they had planned and executed the shooting at Eastern High School to kill anyone from that neighborhood. Brisbon testified that he had lied to the prosecutors again and that he had simply repeated what Detective Irving had previously told him to say on the videotape.
On February 13, 2002, the jury convicted each appellant of two counts of first-degree (premeditated) murder while armed of Charles Jackson and Ivory Harrison, see D.C. Code §§ 22-2401, -404.1 (b)(6), -3202 (Supp.1999) (current version at D.C. Code §§ 22-2101, -104.1 (b)(6), -4502 (Supp. 2008)); one count of assault with intent to kill, while armed, Nikita Sweeney, see D.C. Code § 22-501 (Supp. 1999) (current version at D.C. Code § 22-401 (2001)); id. § 22-3202 (current version at D.C. Code § 22- 4502 (Supp. 2008)); three counts of possession of a firearm during a crime of violence, for two AK-47s and one Mac-90, see D.C. Code § 22-3204 (b) (Supp. 1999) (current version at D.C. Code § 22-4504 (2001)); and one count of felony destruction of property, for bullet holes to Nikita Sweeneys automobile, see D.C. Code § 22-403 (current version at D.C. Code § 22-303 (2001)).
II. Voluntariness of Brisbon's Confession
Brisbon moved to suppress the admission of his confession into evidence, claiming that it was an involuntary statement elicited in violation of the Fifth Amendment. Before trial, Brisbon filed a motion to suppress his confession and witness identifications. The judge called for a hearing, but Brisbon's counsel presented no evidence relevant to ...