Appeals from the Superior Court of the District of Columbia (F-6148-03) (F-1031-05 & F-1467-03) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before REID, GLICKMAN, and THOMPSON, Associate Judges.
Gerald Lee Whitfield was kicked and stomped to death in an alley behind the 1200 block of 16th Street, N.E., in the Trinidad neighborhood, during the early morning hours of June 28, 2002. After a six-day trial during February 2006, a jury found appellants Lamiek Kareem Fortson and Harry T. Ellis guilty of Whitfield's murder, convicting Fortson of armed first-degree pre-meditated murder and Ellis of armed second-degree murder. Ellis was also convicted of one count of obstruction of justice (arising from an attempt to interfere with the testimony of eyewitness Ebony McBeth). Appellants challenge their convictions on a variety of grounds. We affirm.
Initially, co-defendants Fortson and Ellis were tried before a jury during May 2005, but the trial ended in a mistrial when the jury was unable to reach unanimous verdicts. Subsequently, Fortson pled guilty to one count of obstruction of justice, a charge based upon his tampering with one of the jurors from the 2005 trial, Jevonda Blackson. Fortson's wife, Erica Williams, also pled guilty to obstruction of justice in connection with the jury tampering scheme.
A. The Jury Tampering Incident
The background of the jury tampering convictions, which is pertinent to portions of the current appeal, is as follows.*fn1 When jury selection was about to begin in the first trial, Williams recognized one of the members of the jury venire, Blackson, as an individual with whom both Williams and Fortson had attended junior high school. Williams spoke to Blackson in a restroom at the courthouse and told her that her husband, Fortson, was about to stand trial. Blackson told Williams that "she got us," meaning that Blackson would "help us with the verdict." Williams obtained Blackson's jury number and gave it to Fortson's defense counsel, Mr. Evans, telling him that she knew this prospective juror. According to Williams, Evans responded, "we got her," meaning that Blackson had been selected for Fortson's jury. Later, Blackson gave Williams a note with a telephone number where she could be reached, and Williams showed the note to Evans. Thereafter, Williams and Blackson spoke every day or every other day during the trial, with Williams generally calling Blackson from a pay phone (a practice that, according to Williams, was per Evans's instruction). Williams, acting as a conduit for Fortson, provided Blackson with points about "the holes in the case" to argue to other jurors as they deliberated. Williams kept in touch with Fortson, who was in jail, by telephone. The Williams-Fortson telephone calls were monitored and taped. A recording of the calls was played for the jury during the second trial.
Fortson's and Ellis's second trial began on February 2, 2006. The government's witnesses included Ebony McBeth and Fatima McClain, both of whom witnessed the attack on Whitfield. McBeth testified that, at approximately 12:30 a.m. on the morning in question, she was in a bedroom of her home at 1220 16th Street N.E. Looking through an open window, she saw three men running down the alley behind her house, from the direction of Raum Street. Two men -- one a tall, thin, dark-complected man who was dressed in a dark shirt, and the other a light-complected man who was wearing a white shirt -- were chasing the third man. McBeth recognized the man in the white shirt as appellant Ellis. McBeth heard the third man, later identified as Whitfield, say that he "was playing about something he had said." When the men reached the middle of the alley directly behind McBeth's house, the man in the dark shirt grabbed Whitfield and knocked him down. Ellis and the man in the dark shirt then started kicking, stomping and beating on" Whitfield. McBeth saw Whitfield grab Ellis's leg as if "he was trying to get back up," but Ellis, still kicking and stomping, told Whitfield "to stop grabbing on his leg." McBeth never saw the victim strike a blow or defend himself in any way. For about thirty minutes, Ellis and the man in the dark shirt were both "kicking and stomping" on Whitfield and were "jumping up and down" on Whitfield's chest, face, back and upper body area. The man in the dark shirt did most of the jumping and stomping, but Ellis "did his share." Once Ellis "thought it was over," he walked back up the alley, along the way removing the white T-shirt that he had been wearing.
McBeth testified that after Ellis departed, the man in the dark shirt continued to stomp and jump on Whitfield, until a car pulled down the alley and stopped momentarily. Ellis was the driver. It appeared to McBeth that some words were exchanged between Ellis and the man in the dark shirt. The car then drove away down the alley and the man in the dark shirt walked back up the alley toward Raum Street.*fn2 Detective William White testified that, when interviewed on the night of the incident, McBeth had further stated that the darker-complected assailant (the man in the dark shirt) was "holding onto the fence and jumping on [Whitfield's] face."
Fatima McClain, who was living next door to McBeth at 1222 16th Street, N.E., on the day of the beating, testified that, from her back balcony, she saw "two men coming down the alley with another man."*fn3 McClain recognized two of the men as Fortson and Ellis, whom she knew from the Trinidad neighborhood. McClain testified that she saw Fortson and Ellis "beat the third man to death" by "kicking, punching" and "[j]ust beating him."
Forensic pathologist Dr. Gertrude Juste performed the autopsy on Whitfield. She testified that he died as the result of blunt force trauma to his head, neck, and torso. His injuries "were concentrated on the head and neck" and were "to his head mainly," while, as Dr. Juste recalled from the autopsy report, there were no injuries to the extremities. Whitfield's mouth was crushed. His teeth were broken, as were bones in his nose and his jawbone, and his skull was visibly fractured, an injury of a type that "is going to happen if the head is against the ground and force is applied against the skull." The skin had been scraped away from his cheeks and left ear, consistent with his head having been in contact with concrete as force was applied. Whitfield's face was "grossly deformed" (so much so that his mother did not recognize him from the autopsy photograph when she went to morgue to identify him). The injuries were consistent with someone "jumping on Mr. Whitfield's face" and with two people having jumped and stomped on him at the same time while he lay on concrete, offering no resistance. Some of the blows tore Whitfield's tissues apart, the type of injury for which "[y]ou really need much more force" than a fist could supply. "There had to be several" blows to cause the injuries that Dr. Juste observed on Whitfield's body. There was hemorrhaging to the brain and the brain was "grossly swollen." This showed that Whitfield was alive "for some period of time" after the brain injury was inflicted since "if you die immediately, brain swelling doesn't occur." Whitfield had no defensive wounds, and because there was "blood splatter at a very low level" and because of the blood tracks on his body, Dr. Juste opined that he was "already on the ground" during the kicking. Whitfield also had injuries made by a sharp object, including stab wounds in the top of the head, cheek, and torso and a "gaping wound" along the sternum. These wounds were consistent with Whitfield's having been being stabbed with a small knife. Dr. Juste further testified that Mr. Whitfield's body bore "clear markings of [bloody] shoe prints, overlapping markings of [several] shoe prints."
Several police officers and an FBI forensic examiner testified about the blood and DNA evidence discovered at the crime scene and in Ellis's car. There were pools of blood around Whitfield's head, on his face and on the ground around him. There were bloody shoe prints on Whitfield's chest, and a bloody trail, including a bloody boot print, led from his body through the alley towards Raum Street. DNA analyses revealed that the blood in the alley belonged to Whitfield and Fortson; Ellis's DNA was not found on the scene. Blood found at various locations on the passenger side of Ellis's car belonged to Whitfield and Fortson. A "fairly heavily-stained" white shirt recovered from the driver's seat also contained Whitfield's blood.*fn4 A small pocket knife was recovered from the middle console of Ellis's car, but serological testing indicated that it contained no blood.*fn5
Appellant Fortson was the only defense witness. He testified that on the day in question, he was playing a game of craps along with Whitfield and a man named Odell. Fortson and Whitfield "got into an argument over a bet in the crap game." Fortson testified that Whitfield swung at him with a sharp object, cutting him on the arm. Fortson "took off running" through the alley, but Whitfield followed and caught up with him, and the two exchanged punches. Odell arrived and hit Whitfield, who fell to the ground. Fortson and Odell then started kicking and punching Whitfield. Fortson testified that he hit Whitfield about five times and kicked him about three times, in the chest area, and then left after two or three minutes because his arm was bleeding. Fortson left Odell in the alley, still kicking Whitfield. As Fortson was walking away, his friend Ellis drove up behind him and gave him a ride back to his own car. Fortson took off a white shirt he had been wearing and left it in Ellis's car.
Fortson admitted that he "participated in the murder" and agreed that Whitfield never resisted during the assault. He denied, however, jumping on Whitfield or kicking him in the head. His goal was not to kill Whitfield but to "hurt him," and he did not think that Whitfield was dead when he left the scene. Fortson also acknowledged that Odell was killed sometime after the day in question.
Fortson's first argument on appeal is that he is entitled to reversal of his convictions because a ruling by the trial court deprived him of the defense attorney who was most familiar with his case.*fn6 The relevant background is as follows. Before the second trial, but following the arrest and indictment of Fortson for obstruction of justice (jury tampering), the government moved to disqualify the lawyer, Evans, who had represented Fortson during the first trial and who was continuing as his counsel.*fn7 The government asserted that, during many of the tape-recorded telephone conversations between Fortson and Williams, Williams referred to conversations she had had with counsel Evans about jury selection and about jury deliberations. The government argued that it was entitled to delve into Evans's knowledge of those conversations. At a minimum, the prosecutor told the court, Evans would be called as a witness (against Fortson) before the grand jury in the obstruction-of-justice case.*fn8 The prosecutor represented that Evans was "inextricably intertwined as his name comes up all over the place" and that the government was continuing to investigate whether Evans had participated in the jury tampering conspiracy. Through counsel, Evans opposed the motion to disqualify, and he represented as "an officer of the Court" (though not as a sworn witness) that he lacked "any knowledge of any alleged conspiracy or any wrongdoing at all." The trial court granted the government's motion to disqualify on the grounds that Evans was going to be a witness in an upcoming prosecution against his client.
A court "may not unreasonably interfere with the accused's choice of counsel," Harling v. United States, 387 A.2d 1101, 1104 (D.C. 1978), because "the selection of an attorney is often the most important decision a defendant makes in shaping his defense." Douglas v. United States, 488 A.2d 121,142 (D.C. 1985) (internal quotations and citation omitted). Therefore, even where there is an actual conflict between the interests of the accused and those of his attorney, a court may accept a defendant's waiver of his right to conflict-free counsel, to preserve the defendant's right to be represented by counsel of choice. See id. at 139. Nevertheless, "the right to be represented by counsel of choice . . . is not absolute," id. at 142, and a trial court has "discretion to disallow a first choice of counsel that would create serious risk of conflict of interest," Gonzalez-Lopez, supra note 6, 548 U.S. at 148 n.3; see also id. at 152 (a defendant may not "demand that a court honor his waiver of conflict-free representation"). In determining whether to accept a waiver, a court must consider the potential of the conflict to adversely affect the effectiveness of counsel. Freeman v. United States, 971 A.2d 188, 194 (D.C. 2009) (where the trial court learns of "the possibility of conflict" between the interests of the accused and those of his attorney, the court has an "affirmative duty to inquire into effectiveness of counsel") (internal quotation marks and citation omitted); see also id. at 197 n.8(trial court could properly reject defendant's waiver of conflict on grounds that defendant could not anticipate exactly what information his counsel might refrain from placing before the jury). In addition, "the trial court has an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. at 194 (citations and internal quotation marks omitted); Pinkney v. United States, 851 A.2d 479, 489 (D.C. 2004) (trial court did not abuse its discretion in refusing defendant's waiver of conflict because "the appearance of impropriety was too great under the circumstances presented here"); see also United States v. Kerik, 531 F. Supp. 2d 610, 620 (S.D.N.Y. 2008) (waiver may be insufficient to cure the problem posed when a defendant's advocate is also a witness, because the fact-finding process is impaired, meaning that the government, too, is potentially prejudiced by the defense attorney's continued involvement). Because a trial court "must be allowed substantial latitude in refusing waivers of conflicts of interest," Wheat v. United States, 486 U.S. 153, 163 (1988), we will reverse a conviction on the basis of disqualification of counsel only if the trial court abused its discretion in determining that a conflict existed and that the conflict should not be waived.*fn9
Here, the government proffered sufficient facts to "alert the trial court to the possibility of a conflict." Gibson v. United States,632 A.2d 1155, 1159 (D.C. 1993)(internal quotation marks, italics, and citation omitted). Numerous courts have found an actual conflict of interest in circumstances similar to those presented here. See, e.g., United States v. Levy, 25 F.3d 146, 156 (2d Cir. 1994) (collecting cases involving attorneys who were implicated in, were being investigated for, or were accused of crimes related to those of the client). In such cases, harm to the client is virtually unavoidable, because "[i]f the allegations [against the attorney] are true, then "the attorney may fear that a spirited defense could uncover convincing evidence of the attorney's guilt or provoke the government into action against the attorney" and, in any case, "the attorney [would] not [be] in a position to give unbiased advice to the client" because of his personal stake in the case. United States v. Fulton, 5 F.3d 605, 610 (2d Cir. 1993). In this case, the trial court could reasonably expect that if the government's allegations were false, Evans would be unable to expose their falsity without testifying himself, in violation of his ethical obligations; and that if the government's allegations were true, Evans would be loathe to call Fortson to testify in his own defense for fear that Fortson would implicate Evans. We cannot conclude that the trial court abused its discretion in finding that there was a serious conflict of interest warranting disqualification of Fortson's counsel (notwithstanding any waiver that Fortson might have given).*fn10 Although Fortson argues that the trial judge ruled prematurely (i.e., before seeing whether indictments would be handed down and whether any obstruction of justice charges would be joined with the murder charges at the second trial), we are satisfied that the seriousness and nature of the government's allegations and the importance of the court's obligation to ensure that there was no appearance of impropriety gave the court an ample reasonable basis not to defer its ruling.
Early in the Superior Court proceedings, Ellis moved for severance on the ground that any allusions the government would make during the second trial to Fortson's jury tampering and to the resultant mistrial would unduly prejudice Ellis's own defense. The court denied the motion, but Ellis ...