August 13, 2009; as amended January 4, 2010
HARRY WHEELER, APPELLANT,
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (FEL3155-03) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Argued March 12, 2009
Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and FERREN, Senior Judge.
Harry Wheeler appeals his conviction on one count each of conspiracy to commit first-degree murder while armed, D.C. Code §§ 22-1805a, -2101, -4502 (2001); first-degree murder while armed, D.C. Code §§ 22-2101, -4502 (2001); and possession of a firearm during a crime of violence, D.C. Code § 22-4504 (b) (2001). Wheeler argues that (1) there was insufficient evidence to support the convictions, (2) the trial court's jury instructions constitute reversible error, (3) the court impermissibly limited his constitutional right to confront witnesses and present a defense by restricting cross-examination and refusing to allow evidence that pointed to third-party motives for the murder, (4) the court erred in denying his motion for a mistrial, and (5) the court violated his constitutional right to confront witnesses and to present exculpatory evidence by refusing to continue the sentencing hearing and by denying his post-conviction motions. We affirm.
I. Evidence at Trial
On April 1, 2003, an unidentified individual shot and killed Michael Taylor at the corner of 1st and R Streets, N.W., early in the evening. Police arrested appellant Wheeler two months later for murder, believing that Wheeler had "solicited and entered into an agreement with other individuals, and knowingly participated in the murder of Michael Taylor" in retaliation for Taylor's involvement in stealing money belonging to Wheeler. On February 4, 2004, a grand jury indicted Wheeler on the three charges on which he was eventually convicted.
During Wheeler's trial, witnesses discussed events after the theft leading up to Taylor's murder. According to Brittainy Johnson, the mother of Wheeler's child, Taylor had been involved in a robbery at her residence on March 31, 2003, the day before he was killed. Taylor and another individual had forcibly entered her house and stolen $17,000 that Wheeler had given her a week earlier for the care of their son. Johnson recognized Taylor, whom she had known since elementary school and regularly saw in the neighborhood.
Johnson testified that when she had told Wheeler that some men had stolen his money he was "very angry." Wheeler went to Brittainy Johnson's house and spoke with her father, police Sergeant Fred Johnson. Sergeant Johnson testified that Wheeler told him, "I'm going to do what I have to do and I'll go to jail behind this one." Brittainy Johnson told Wheeler the next day that Taylor had been one of the men who stole his money.
Chaz McCray, a friend of Wheeler's, testified that he had met with Wheeler and a number of other individuals outside of Johnson's house later on the day of the robbery. According to McCray, Wheeler was "very upset" and was "pouting, screaming his money got tooken." McCray said that Wheeler admitted he knew who had committed the robbery and screamed, "fuck, somebody [is] going to pay for this." McCray further testified that he had seen Wheeler again that night. He said that Wheeler spoke about knowing who had committed the robbery and getting "Slim" to "smash" the robber. According to McCray, "Slim" is a generic term to refer to an acquaintance, and "smash" means "get you killed, whooped, beat up, or some type of harm done to you." McCray added that Wheeler was going to get "Slim" to "smash" the robber because "Slim" would keep his mouth shut.
McCray also testified that he had seen Wheeler with another individual approximately eight times the next day, April 1. Wheeler was "still upset" about his stolen money each time McCray had seen him on the day of the murder. When McCray saw Wheeler at nightfall, however, after the murder, he was "more chilled, laid back, . . . [and] social with the crowd" and did not mention the robbery.
Anthony Babb, a close friend of Taylor's, testified that he had been with Taylor on the afternoon of the robbery and had seen Wheeler driving around Johnson's neighborhood. Wheeler called Babb and Taylor over to his truck and asked Babb if he had seen anything funny that day. According to Babb, Wheeler was "upset" and "serious" because somebody had robbed the mother of his son. Babb further testified that he had seen Wheeler again on the night of the robbery driving in Johnson's neighborhood with another individual. Wheeler called Babb over to Wheeler's truck and asked Babb again if he knew anything about the robbery. Wheeler told Babb that he had learned that one of the robbers drove a green Intrepid and said, "I know you know Mike [Taylor] got a green Intrepid." Babb thought Wheeler was "angry," but "a little sad." Despite assurances from Babb that Taylor had not been involved in the robbery, Wheeler told Babb that he was not going "to let that shit slide about his girlfriend['s] house getting robbed."
Babb also testified that in the early part of the afternoon the next day -- the day of the murder -- he had seen Wheeler again, driving in Johnson's neighborhood. Wheeler was accompanied by the same individual Babb had seen him with the previous day. (Brittainy Johnson's cousin, Theresa Johnson, similarly testified that she had seen Wheeler with another individual that same afternoon, and that Wheeler had told her Brittainy Johnson had mentioned to him that one of the robbers looked like Taylor). Babb approached Wheeler, who told Babb that people were telling him that Taylor had been one of the robbers. Wheeler said, "shit ain't looking good for your man." Babb added that he had seen Wheeler again two days after Taylor's funeral and asked him if he had had Taylor killed. Wheeler replied, "I don't know what happened to your man. Just like don't nobody know what happened to my house getting robbed."
Theodore Riley, an acquaintance of Wheeler's, testified that at some point Wheeler had approached him and was "real agitated and rushed." Wheeler told Riley, "When I find out who did it I'm going to yeah." Riley testified that he interpreted "yeah" as "smash," even though Wheeler never said "smash." Riley told Wheeler that if he needed any assistance, Wheeler should contact him. Riley acknowledged that he had made the offer so that "once [Wheeler] found out who did it if he needed any help killing the person, [Riley] was willing to assist." According to Riley, Wheeler responded, "all right," and drove off.
After Wheeler's arrest for Taylor's murder, he was incarcerated with Riley (who was serving time on an unrelated offense). Riley anticipated that Wheeler would be indicted for conspiracy to commit murder and testified that he had told Wheeler he could "beat the case" as long as the shooter did not cooperate with law enforcement. According to Riley, Wheeler replied, "I got my man. He's going to hold fast."
II. Convictions and Sentencing
As a predicate for decision, it is important to understand precisely the indictment, the trial court's instructions, the jurors' verdicts, and the court's sentences. As to the indictment, the first count charged Wheeler with "Conspiracy to Commit Murder," citing the conspiracy and first-degree murder statutes*fn1 and the provision for enhancing a sentence for an offense "when armed."*fn2 The second count charged "First Degree Murder While Armed (Premeditated),"*fn3 while the third count added "Possession of a Firearm During Crime of Violence or Dangerous Offense,"*fn4 namely, the "First Degree Murder While Armed (Premeditated)" in the second count.
The trial court instructed the jury on five separate issues related to the three counts in the indictment. First, the court instructed on the second count, "first degree murder while armed" (and on the "lesser included offense of second degree murder while armed").*fn5
Second, the court gave its "aiding and abetting" instruction,*fn6 applicable to the substantive offenses charged in the second and third counts: "murder and/or possession of a firearm during the crime of violence." Third, the court described the elements of the first count, "conspiracy to commit murder,"*fn7 described as "a separate charge from murder itself." The court did not advert to the "armed" enhancement provision specified in the indictment and in the instruction for the second count. Nor did the conspiracy instruction otherwise refer to a firearm. Fourth, the court gave the Pinkerton*fn8 instruction as to the second and third counts that Wheeler could be "found guilty of the crimes of murder and/or possession of a firearm[,] which [were] allegedly committed by a coconspirator[,] even though [Wheeler] did not participate directly in the acts constituting . . . those offenses," provided that they were "a reasonably foreseeable consequence of the conspiracy."*fn9 Finally, the trial court instructed on the "essential elements" of the third count, possession of a firearm during a crime of violence:*fn10 that "the Defendant possessed a firearm" (as defined); that he possessed it "while committing a crime of violence"; and that he possessed it "knowingly and intentionally," meaning "consciously, voluntarily and on purpose, not by mistake or accident."*fn11
In announcing their verdicts, the jurors answered "guilty" to each of the charges posed by the trial court: "conspiracy to commit murder," "first degree murder while armed," and "possessing a firearm during the crime of violence." Later, at sentencing, the court imposed a sentence of sixteen months in prison for "conspiracy to commit murder," forty-five years for "first-degree murder while armed," and five years for "possessing a firearm," all sentences to run concurrently. Thereafter, the signed sentencing order referred to convictions for "Conspiracy," "Murder I w/Armed," and "Poss. of Firearm During Comm. of Crime of Violence." The conspiracy entry in the sentencing order did not reference the "armed" enhancement provision cited in the indictment.*fn12
There was no dispute at trial that Taylor's death was caused by a firearm. Moreover, the court made clear from the outset that the murder charge concerned an armed offense; as noted above, the court initially instructed the jury on the second count, "first degree murder while armed" (emphasis added). The italicized phrase, however, did not appear again in the jury instructions, when the verdict was taken, or at sentencing -- omissions, as we shall see, that complicate the analysis.
III. Sufficiency of the Evidence and Instructional Arguments
Wheeler contends that the evidence at trial was insufficient to prove beyond a reasonable doubt that he had committed any of the three offenses charged. Two of these evidentiary contentions are premised on arguments that the trial court erred when instructing the jury on the second and third counts of the indictment: first-degree murder while armed and possession of a firearm during a crime of violence (PFCV). The instruction applicable to the first count, however -- conspiracy to commit first-degree murder*fn13 -- is not challenged. Accordingly, we shall first address sufficiency of the evidence under that conspiracy count, and then consider sufficiency under the second and third counts after resolving the instructional issues.
A. Sufficiency of the Evidence: Count One (Conspiracy)
"In reviewing a claim of insufficient evidence, this court must determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, reviewing the evidence in the light most favorable to the government, and giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." McCoy v. United States, 890 A.2d 204, 213 (D.C. 2006) (internal citations and quotation marks omitted). We have said that to prove a conspiracy, the government must establish the following elements: "that an agreement existed between two or more people to commit a criminal offense; that the defendant knowingly and voluntarily participated in the agreement, intending to commit a criminal objective; and that, in furtherance of and during the conspiracy, a co-conspirator committed at least one overt act." Id. at 213-14 (citing McCullough v. United States, 827 A.2d 48, 58 (D.C. 2003)).*fn14
On this record, the government's evidence was sufficient for a rational trier of fact to have found Wheeler guilty of conspiracy to commit murder beyond a reasonable doubt. First, Wheeler had a clear motive to commit the murder: Two individuals had robbed the mother of his child of $17,000 that he had given her for the child's care. Second, Wheeler was extremely angry after the robbery, telling various individuals that he was going to get revenge. He said, for example, that "somebody was going to pay"; that he was "going to do what [he had] to do" and was willing to "go to jail behind this one"; that he was not going "to let that shit slide about his girlfriend['s] house getting robbed"; and that he was "going to yeah,"*fn15 meaning "smash," the perpetrator when he found out who was responsible for the robbery. Third, Wheeler then drove around the neighborhood with another individual,*fn16 seeking information about the identity of the man who had stolen his money. He eventually learned the identity of the robber from a number of individuals, including Brittainy Johnson -- the victim of the robbery -- who told Wheeler that Taylor had been one of the robbers.
Fourth, Wheeler then spoke about getting "Slim" (a slang term for an acquaintance, according to McCray) to "smash" (a slang term that, according to McCray, could mean kill, beat up, or cause some type of harm to) the robber. See note 15, supra. Wheeler even told one of Taylor's friends on the day of Taylor's murder that "shit ain't looking good for your man." Fifth, and also on the day of the murder, Wheeler was seen with the same man who had been with him on the day of the robbery.*fn17 Sixth, only thirty-one hours after Wheeler's $17,000 were stolen, Taylor was shot ten times with a nine millimeter Luger firearm by an unidentified black male.*fn18 Seventh, after the murder Wheeler no longer was angry; rather, "[h]e was more chilled, laid back, . . . [and] social with the crowd."
Finally, Wheeler made two incriminating statements after the murder. When Babb asked Wheeler if he had had Taylor killed, Wheeler responded sarcastically, "I don't know what happened to your man. Just like don't nobody know what happened to my house getting robbed." While incarcerated with Riley, who advised that Wheeler could "beat the case" as long as the shooter did not cooperate with law enforcement, Wheeler replied, "I got my man. He's going to hold fast."
Wheeler argues, nonetheless, that his uncorroborated out-of-court statements made after commission of the crime -- that is, after he allegedly had entered into the agreement with his co-conspirator to kill Taylor with a firearm -- cannot support his conviction. He contends that we should apply the holding in Opper v. United States, 348 U.S. 84, 90 (1954), recognized in Smith v. United States, 348 U.S. 147, 152 (1954), that statements made by an accused after the commission of a crime (but not those made before) regarding essential facts or elements of the crime require corroboration. Here, however, even accepting Wheeler's argument that the crime occurred at the moment he allegedly entered into the agreement to kill Taylor, and not later when the unidentified shooter actually shot Taylor, there is sufficient corroborative evidence to support Wheeler's conviction. Wheeler's clear motive, extreme anger following the robbery, and actions to discover the identity of the robber, along with the close proximity in time between the robbery and the murder, as well as Wheeler's calm and relieved demeanor following the murder, provide sufficient corroboration for any statements that took place after he entered into the agreement with the unidentified shooter. Based on the evidence presented, therefore, even though largely circumstantial,*fn19 we are satisfied that a rational trier of fact could have found Wheeler guilty beyond a reasonable doubt of conspiracy to commit first-degree murder.
B. Instructional Arguments: Count Two (First-Degree Murder While Armed) and Count Three (PFCV)
The trial court offered the jury two avenues to convicting Wheeler on the second count, first-degree murder while armed: as an aider and abettor and/or as a co-conspirator. His instructional arguments, therefore, unfold in the following order. First, the government concedes that the aiding-and-abetting instruction was deficient. Contrary to our en banc decision in Wilson-Bey,*fn20 this instruction did not require the jury to find that Wheeler, as an aider and abetter of the shooter, had intended to commit murder. More specifically, the instruction did not require the jury to find that Wheeler himself, after "premeditation and deliberation," had formed "the specific intent to kill" Taylor -- the same murderous intent that the government would have had to prove for the shooter.*fn21 Instead, the trial court's instruction erroneously permitted the watered-down finding that Wheeler was guilty of murder because it was the "natural and probable consequence" of a crime, committed by another, in which Wheeler had "intentionally participate[d]."*fn22 Wheeler begins his argument, therefore, with the uncontested proposition that the jury's initial instruction on liability as an aider and abettor under the second count amounted essentially to a negligence instruction and thus expressed an invalid level of intent.*fn23
Wheeler next turns to the Pinkerton instruction for co-conspirator liability, which authorized the jury to find Wheeler guilty of counts two and three, "murder and/or possession of a firearm," as a co-conspirator, if either crime was the "natural consequence" or the "reasonably foreseeable consequence" of the alleged conspiracy.*fn24 That instruction, he says -- like the aiding-and-abetting instruction -- failed to incorporate the higher level of intent required for first-degree murder.
From these observations, Wheeler argues that whether the jury used aiding-and-abetting or co-conspirator liability to find him guilty of count two -- including the possibility that some jurors used one theory while the remaining jurors used the other -- each instruction diluted the level of intent required to convict him of first-degree murder while armed. That is to say, each instruction allowed the jury to convict him of first-degree murder while armed if he acted negligently rather than with specific intent to kill with premeditation and deliberation. He adds, moreover, that even if this court were to "view the coconspirator liability instruction as properly given," the murder conviction could not stand because some of the jurors may have convicted him under the defective aiding-and-abetting instruction, precluding jury unanimity under a valid instruction.*fn25 Although creative, these instructional arguments must fail.
1. First-Degree Murder
As predicates for analysis, we note again that in convicting Wheeler, on count one, of conspiracy to murder, the jury found the specific intent to kill, with premeditation and deliberation, required by Wilson-Bey for conviction on count two of the murder itself. Furthermore -- and this point is ultimately key to our analysis -- the trial court's unchallenged conspiracy instruction on count one, although somewhat differently formulated, embraced all three critical elements of conspiracy specified in its Pinkerton co-conspirator liability instruction on count two, the validity of which we acknowledged in Wilson-Bey.*fn26 From these predicates, the analysis can proceed in two ways.
First, even if one or more jurors, in deciding count two, focused on the erroneous aiding-and-abetting instruction, not on the valid Pinkerton co-conspirator liability instruction, they already would have found -- by convicting on count one -- that Wheeler had the specific, premeditated, and deliberate intent required by Wilson-Bey for the count two first-degree murder. Thus, the defect in the aiding-and-abetting instruction, permitting the jury to find Wheeler guilty of murder as the "natural and probable consequence" of another individual's actions, was eclipsed -- made harmless beyond a reasonable doubt -- by the fact that the jury, in convicting of conspiracy to murder, unanimously found the higher, requisite intent for premeditated murder because a conspiracy to murder could hardly involve any lesser intent. Put another way, the jury's count one conspiracy conviction effectively provided the special verdict required to assure us that the jurors who found all the elements of aiding and abetting also added in a finding of the heightened mental state required by statute to prove first-degree murder. No member of the jury, therefore, could have relied exclusively on the lesser, negligence standard that Wheeler identifies as the presumed basis for conviction by one or more jurors under the aiding-and-abetting instruction.*fn27
But there is a second, alternative approach. Because the count one conspiracy satisfied the defining elements of the count two Pinkerton co-conspirator liability instruction,*fn28 all jurors can be said to have found Wheeler guilty of a conspiracy that embraces all substantive crimes that were "a natural consequence" or "a reasonably foreseeable consequence" of the conspiracy. In Wilson-Bey, we called criminal conspiracy "an offense of the gravest character"; as a "partnership in crime," it justifies conviction of each conspirator for all reasonably foreseeable criminal acts of a co-conspirator (deemed at law to be the conspirator's agent) "without proof of the mens rea otherwise required for the subsequent crime."*fn29 Under Pinkerton, therefore, the intent necessary for conviction of murder as an aider and abettor under Wilson-Bey yields to virtually the same state of mind -- the lesser foreseeability or natural and probable consequences standard -- found erroneous in the court's aiding-and-abetting instruction. In short, a conspiracy -- an agreement not necessarily present among aiders and abettors -- is deemed a substitute for the particular state of mind required for convicting a nonconspiratorial accomplice of murder under Wilson-Bey. A jury finding that Wheeler had the state of mind required for conviction of first-degree murder was therefore not necessary for conviction under the Pinkerton theory.
Ultimately, however, there is one overriding reality that makes the Wilson-Bey error harmless. Every juror found, at the very least, that Wheeler had joined a criminal conspiracy to commit murder with an unknown co-conspirator, and every juror found that Taylor's murder was the natural or probable result of that conspiracy. Those findings suffice for Pinkerton co-conspirator liability, and Wheeler's conviction of first-degree murder accordingly must be upheld.*fn30
2. First-Degree Murder "While Armed" and PFCV
Reliance on the count one conspiracy instruction to cure the defect in the aiding-and-abetting instruction, however, extends only to the intent to murder; the conspiracy instruction says nothing about the additional "while armed" language in count one of the indictment or about the validity of the count two instructions as applied to PFCV.*fn31 Thus, we must consider whether the aiding-and-abetting instruction and/or the Pinkerton co-conspirator instruction adequately covered the additional jury finding required for conviction of murder "while armed," as well as the findings necessary for conviction of PFCV.*fn32
Had the jury not convicted Wheeler of conspiracy to murder, two decisions of this court, Wilson-Bey and Lancaster,*fn33 would have dictated that his conviction of aiding and abetting PFCV required, respectively, a proper instruction, followed by a jury finding, that Wheeler "took specific steps" to assist Taylor's killer in the actual possession of a firearm; a "general participation in the criminal venture to prove aiding and abetting of the possessory firearms offense" is not enough.*fn34 Thus, as elaborated in note 34, supra, without a conspiracy, a jury finding on count two that "it was reasonably foreseeable to the aider and abettor that some type of weapon was required" to commit Taylor's murder would not suffice for conviction of PFCV.*fn35 Similarly, if Wilson-Bey were applicable to the "when armed" language in D.C. Code § 22-4502 (a) -- an issue we do not decide -- we could not conclude that the trial court's instruction, allowing the jury to rely on "reasonable foreseeability" of a firearm, satisfied the intent requirement for aiding and abetting an armed offense under § 22-4502 (a).*fn36
C. Sufficiency of the Evidence: Count Two (First-Degree Murder While Armed) and Count Three (PFCV)
We need not consider such Wilson-Bey applications further. Given our conclusion that the count one conspiracy conviction embraced the elements of a Pinkerton conspiracy, we must conclude that a unanimous jury properly found Wheeler guilty of murder "while armed," as well as PFCV. Based on the evidence presented in Part I and assembled in Part III. A. to demonstrate Wheeler's participation in a conspiracy to murder Taylor, we are satisfied that Taylor's murder by an "armed" killer, and thus the killer's "possession of a firearm during a crime of violence," were -- like the murder itself -- crimes readily described as "natural" or "reasonably foreeseeable" consequences of that conspiracy. Those overt acts by Wheeler's unknown co-conspirator justified, under Pinkerton, the jury's verdicts convicting Wheeler not only of conspiracy to murder but also of first-degree murder while armed and possession of a firearm during a crime of violence. As we have observed in analyzing the murder in Part III. B. above, the fact that some jurors may have relied on the erroneous aiding-and-abetting instruction, rather than on the Pinkerton theory, to find reasonable foreseeability is irrelevant, and the instructional error harmless, given the legal validity of the result under Pinkerton.
IV. Cross-Examination (Jencks Issue)
Wheeler argues that the trial court improperly limited his attempts to test Babb's memory, credibility, and bias. Defense counsel requested Jencks*fn37 material for use in cross-examining Babb about his assistance to law enforcement officers under a plea agreement admitting his participation in a conspiracy to distribute cocaine, for which he had not yet been sentenced. Pursuant to that agreement, Babb agreed to "provide the police with information about ongoing crime" in the hope that the government would recommend a lenient sentence. Counsel for Wheeler therefore asked for Jencks statements*fn38 by Babb pertaining to cases other than Wheeler's; he reasoned that if the information Babb provided before Wheeler's trial had not been useful to the police, then his testimony at Wheeler's trial, favorable to the government, would have been especially important in achieving a lighter sentence for his part in the cocaine conspiracy. In short, counsel wanted the Jencks statements for help in exploring whether Babb had an incentive to exaggerate the information he provided against Wheeler.
Before the government must produce Jencks material to the defense, four prerequisites must be satisfied: "The material must be in the possession of the government; the defense must request the material; the material must constitute a 'statement' as defined [in the Jencks Act]; and the statement must relate to the subject matter of the witness' direct testimony." Lyles v. United States, 879 A.2d 979, 983 n.12 (D.C. 2005) (quoting Butler v. United States, 481 A.2d 431, 446 (D.C. 1984), cert. denied, 470 U.S. 1029 (1985)).
In assessing Wheeler's argument, it is important to repeat that trial counsel was seeking information from the government about Babb's statements concerning crimes other than those charged against Wheeler. It is highly questionable, therefore, whether any statement pertaining to those other crimes can be said to "relate to the subject matter of the witness' direct testimony," id., in Wheeler's trial, because Babb's testimony, aside from preliminaries, focused entirely on his interactions with Wheeler during the thirty-one hours immediately preceding Taylor's murder. Defense counsel told the trial court, however, that this "subject matter" criterion was satisfied because the government had introduced Babb's plea agreement in evidence and Babb, on direct examination, had provided details of his cooperation with the police in other cases. The trial court deflected that argument by calling the requested material irrelevant.
We need not resolve this "subject matter" issue, or even resolve whether Babb had made "statements"*fn39 that would qualify for disclosure as Jencks material if they pertained to the subject matter of Babb's direct examination. The trial court was correct: the requested material could not have been relevant to trial counsel's only stated reason for seeking the material, because whether the information Babb had supplied to the police about other crimes had, or had not, been useful to law enforcement was entirely beyond the ability of Babb, or Wheeler's trial counsel, to evaluate. Only the police and the prosecutors could evaluate the usefulness of information provided by Babb in other matters.
The trial court ruled that defense counsel was "free to examine [Babb] about any bias or motivation he ha[d]," and counsel did so effectively. As to credibility, counsel established that Babb had been a drug dealer, was facing a substantial federal sentence for conspiracy to sell drugs, and had agreed to cooperate with the government in the hope of receiving a lenient sentence. As to bias, counsel elicited that Babb had worn a wire to record conversations with various drug dealers, but not with his friend, Taylor, who also was a drug dealer. Nor did he report Taylor's theft at Brittainy Johnson's house to the police.
Moreover, once Babb learned that Wheeler believed Taylor had been the robber, Babb and Taylor discussed getting guns to deal with the tense situation that was developing. Counsel, it is clear, elicited considerable evidence bearing on Babb's memory, credibility, and bias. In contrast with this evidence, the information that counsel might have obtained from his request for Jencks material related to other cases was so speculative that no potential benefit to the defense is discernible.
Furthermore, we agree with the government: "satisfying appellant's cross-examination request would have required a wholesale fishing expedition through potentially countless confidential investigative files." This would have offered minimal probative value to the defense when compared with the substantial prejudice to the government. As we have said, the Jencks Act is not a tool for discovery; rather, "[o]ne purpose of the Jencks Act was to restrict defendant's right to any general exploration of the government's files." Hilliard v. United States, 638 A.2d 698, 704 (D.C. 1994) (internal citations and quotation marks omitted). All things considered, therefore, we conclude that the trial court did not abuse its discretion*fn40 in denying trial counsel's request for Jencks material.*fn41
V. Evidence of Third-Party Motives
Wheeler also asserts that the trial court erred in granting the government's motions to preclude evidence of cocaine found in Taylor's possession and the presence of drugs in his system. Defense counsel objected, arguing "it's just as likely that [Taylor] was killed in the process of doing a drug transaction," and thus that a third party, not Wheeler, was responsible.
Evidence that a third party committed the crime for which the defendant is charged may be presented through the testimony of defense witnesses when there are sufficient indicia that the evidence is reliable. However, "to be admissible, evidence proffered by the defense must 'tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.'" Gethers v. United States, 684 A.2d 1266, 1271 (D.C. 1996)(quoting Johnson v. United States, 552 A.2d 513, 516 (D.C. 1989)); see also Winfield v. United States, 676 A.2d 1, 5 (D.C. 1996) (en banc) (holding that mere proof of third-party motive to commit crime does not ordinarily create "real possibility" that third party was perpetrator, and that trial judge has "discretion to exclude marginally relevant evidence" that may distract jury from culpability of defendant). In Gethers, moreover, we emphasized that "[none] of our prior decisions suggested that the third party could be a hypothetical person, i.e., an unidentified, unknown person with only generic reasons for committing the crime." 684 A.2d at 1271. Here, Wheeler argues that evidence of cocaine found on Taylor and the presence of drugs in his system would have shown that Taylor had a "dangerous lifestyle" and was at a "high risk of violent death" from "[r]ival drug dealers, dissatisfied customers, or frustrated robbers." This argument fails to provide anything more than "a hypothetical, unidentified person who may have had a motive" to commit the murder. Id.*fn42
VI. Motion for Mistrial
Wheeler maintains that the trial court abused its discretion when it failed to grant his request for a mistrial after Babb spontaneously testified that Wheeler "had got Mike [Taylor] killed." The trial court struck Babb's comment and directed the jury to "disregard [Babb's] belief about who did the shooting" because he had "no personal knowledge."*fn43 The court then denied defense counsel's motion for a mistrial.
As Wheeler recognizes, "[a] decision whether to declare a mistrial is committed to the sound discretion of the trial court." Smith v. United States, 665 A.2d 962, 966 (D.C. 1995). In reviewing that discretion and thus assessing the degree of prejudice suffered by Wheeler from the trial court's ruling, we must consider "the gravity of the misconduct, the relative strength of the government's case, the centrality of the issue affected, and any mitigating actions taken by the court, all the while giving due deference to the decision of the trial judge, who had the advantage of being present not only when the alleged misconduct occurred, but throughout the trial." Coleman v. United States, 779 A.2d 297, 302 (D.C. 2001) (quoting Bennett v. United States, 597 A.2d 24, 27 (D.C. 1991)). After applying these criteria and noting in particular the trial court's curative instruction, we conclude that the trial court did not abuse its discretion; denial of Wheeler's motion for a mistrial was in no way "irrational, unreasonable, or so extreme that failure to reverse would result in a miscarriage of justice." Roy v. United States, 871 A.2d 498, 505 n.3 (D.C. 2005) (quoting Parker v. United States, 757 A.2d 1280, 1286 (D.C. 2000)).
VII. Post-Trial Motions
Wheeler argues that the trial court erred in denying his post-trial motions asking for a continuance of his sentencing hearing and alleging ineffective assistance of trial counsel. Neither argument has merit.
A. Request for Continuance at Sentencing
Citing Brady v. Maryland, 373 U.S. 83 (1963), Wheeler argues that the government had unlawfully withheld exculpatory information, specifically, the fact that the Internal Affairs Division (IAD) of the Metropolitan Police Department (MPD) had been investigating Sergeant Fred Johnson, Brittainy Johnson's father, because of his failure to call the police or file a report about the robbery until after Taylor's murder. Wheeler then contends that the trial court abused its discretion when, at the sentencing, it denied his request for a continuance, as well as his motion to compel discovery, to obtain more information about that investigation.*fn44 It appears that counsel filed these motions in anticipation of timely seeking a new trial or filing a collateral attack.
Wheeler stresses that evidence of Sergeant Johnson's investigation and eventual suspension by the IAD would have provided "strong impeachment of a critical government witness" in light of Johnson's testimony at trial that his failure to report the robbery caused him no problems at the police department. The record confirms, to the contrary, that Sergeant Johnson's testimony was not false. An affidavit provided by Sergeant Anthony Langley of the IAD states that although the lead homicide investigator in Wheeler's case had contacted a supervisor at IAD in 2003 to express his concerns about Sergeant Johnson's conduct in the matter, IAD did not pursue an investigation in 2003 because there had been "no specific information or evidence that implicated Sergeant Johnson" at that time. The "first and only formal M.P.D. investigation" of his conduct in connection with the homicide occurred shortly after Wheeler's trial ended in February 2005. Sergeant Langley conducted that investigation in the spring and summer of 2005 (when he learned about the 2003 information outlined above) and filed his final report in July 2005. After "further disciplinary proceedings in this matter in 2005 and 2006, Sgt. Johnson's service with the M.P.D. was terminated in May, 2006."
Wheeler challenges the particulars of Langley's affidavit. According to counsel on appeal, Wheeler was indicted in February 2004 and thus "the homicide investigation was over." Counsel then argues that either the police had been investigating Sergeant Johnson earlier than the Langley affidavit indicated, and thus that Johnson had "lied at trial," or the investigation commenced in 2005, as Sergeant Langley wrote, and "the police deliberately undermined Mr. Wheeler's right to a fair trial by holding off on formal investigation until after Sgt. Johnson had testified and there was a guilty verdict." With all respect due, counsel's alternatives amount to considerable speculation. There is no reason to believe that Sergeant Langley was lying under oath. Furthermore, even if we assume the truth of counsel's second alternative, that the government deliberately delayed the investigation of Sergeant Johnson until after Wheeler's trial was over, there is no basis, other than counsel's guess, for believing that Johnson was aware of that ploy.
In any event, Wheeler is incorrect in suggesting that defense counsel had been unable to impeach Sergeant Johnson's testimony at trial. No one disputes that Sergeant Johnson should have reported the robbery, and that his failure to do so came to light during the trial. In fact, Sergeant Johnson admitted before the jury that IAD was "monitoring" him as a result of his failure to report the robbery. The jury, therefore, had information casting a shadow over Sergeant Johnson's credibility and possible bias in favor of the government. Accordingly, even if the government had delayed the investigation for the alleged tactical purpose and Sergeant Johnson had been aware of that fact, Johnson's testimony would not have greatly assisted the defense. His acknowledged awareness -- perhaps from the aborted 2003 activity -- that he was being "monitored" for his behavior at the time of the killing supplied much of the impact that Wheeler hoped to develop through discovery. All things considered, therefore, we can perceive no abuse of trial court discretion in refusing to continue Wheeler's sentencing and in denying his motion to compel discovery.
B. Ineffective Assistance of Counsel
Wheeler filed several pro se motions under D.C. Code § 23-110 (2001) alleging trial counsel's ineffectiveness. Then, through counsel, he filed a supplemental motion alleging that trial counsel had failed to call favorable witnesses. The trial court denied Wheeler's motions without a hearing "[f]or the reasons set forth in the government's opposition" and denied a related motion to compel discovery as moot.
On appeal, Wheeler contends that his trial counsel inadequately investigated his case and, more specifically, failed to present testimony from Jermaine Dunmore and George Johnson, who he claims would have provided exculpatory testimony. Wheeler alleges that these two individuals had been with McCray when he spoke with Wheeler on the day of the robbery. He further alleges that they would have testified that the alleged conversation between McCray and Wheeler, in which Wheeler had said he was going to get "Slim" to "smash" the robber, never occurred. Wheeler, however, submitted no affidavits from Dunmore or Johnson that they would testify to this effect. In contrast, the government provided an affidavit from Wheeler's trial counsel explaining that he had been aware of these potential witnesses, who were in custody pending narcotics charges in federal District Court; that he had obtained a writ for their presence at trial; that George Johnson's counsel, however, would not let Johnson speak with Wheeler's trial attorney; and that both Dunmore and Johnson had "5th Amendment issues related to their pending federal narcotics case." Wheeler's trial counsel further explained that, in the end, he had made a tactical decision not to call Dunmore or Johnson because they were asserting their Fifth Amendment privileges not to testify and because he had learned from their attorneys that their potential testimony would not have been helpful to Wheeler.*fn45
Absent any information from Wheeler as to what these witnesses would have said at trial, and given trial counsel's detailed explanation as to why he had not called them to testify, we perceive no constitutional deficiency in trial counsel's performance. See Strickland, supra note 45, 466 U.S. at 687-98. Because the record "conclusively show[s]" that Wheeler "is entitled to no relief," D.C. Code § 23-110 (c), the trial court did not abuse its discretion in denying Wheeler's motions without a hearing. See Sykes v. United States, 585 A.2d 1335, 1340 (D.C. 1991) (internal citations omitted).