Appeal from the Superior Court of the District of Columbia (F-6847-05) (Hon. Herbert B. Dixon, Jr., Trial Judge).
The opinion of the court was delivered by: Oberly, Associate Judge
Submitted February 16, 2010
Before OBERLY, Associate Judge, and KERN and KING, Senior Judges.
Appellant Jerome H. Jones was indicted on one count of assault with intent to kill while armed ("AWIKWA"), one count of possession of a prohibited weapon (box cutter) ("PPW"), and one count of obstruction of justice (asking witness for false testimony), based on his role in a nightclub fistfight that ended in one man, Terrance Brown, dying. After a jury trial, Jones was found not guilty of AWIKWA and the lesser included offense of assault with a dangerous weapon. He was found guilty of the lesser included offense of simple assault,*fn1 possession of a prohibited weapon*fn2 and obstruction of justice.*fn3 On appeal, Jones first argues that there was insufficient evidence to support the obstruction of justice charge. Second, he argues that the trial court erred in refusing to give the jury a self-defense instruction. Third, Jones argues that the trial court coerced the jury into reaching its verdict of guilty on simple assault, PPW, and obstruction of justice by giving anti-deadlock instructions. We reject each of Jones's arguments, and affirm the trial court's judgment of conviction.
On a Saturday night in 2005, Terrance Brown and his nephew, Ladell Brown, went to Club U in the District. The dance floor at the club was crowded, so much so that "[a] lot of people . . . [were] packed together . . . everybody [was] crowded trying to be on the little dance floor." While dancing, one witness saw Terrance and appellant Jones "exchange elbows" with each other, probably due to the crowded space. As Ladell sought Terrance to get a drink at the bar with him, Ladell saw a "dark" man with dreadlocks push Terrance.
Terrance responded by "swinging" toward the man who pushed him. Two eyewitnesses then saw Jones, who wore his hair in dreadlocks at the time of the incident, pull a box cutter from his pocket and begin hitting Terrance. A fistfight ensued and other people jumped into the fray. A club security guard pulled apart the fighters and took Terrance outside the club because he seemed to be the person several people were fighting. The guard testified that Terrance told him he'd been stabbed so the guard went to go get help but he was distracted by having to break up another fight. Another security guard saw that Terrance was lying on the ground and went to investigate; that guard testified that Terrance said, "I can't believe he stabbed me." The guard noticed Terrance's wound and provided medical assistance, but Terrance died shortly thereafter.
II. Obstruction of Justice Conviction
At trial, the government presented evidence that after the fight at the club, Jones asked his friend Jennifer Moore if she would say she had been at the club with Jones, even though she had not been there. Although Jones's exact words were unclear, Moore testified that Jones phrased his request for her to lie by beginning with the words, "if I was to ask you . . ." but that he "never told [her] to go to anyone and say that [she had been] at the club." Moore agreed to Jones's request, and later, "on her own accord," Moore told a defense investigator that she was with Jones at the club on the night of the fight. She later recanted that statement to the investigator and testified that she was not with Jones at the club. Based on Jones's request for Moore to lie, the government charged Jones with obstruction of justice.
Under D.C. Code § 22-722 (a)(2)(A), "[a] person commits the offense of obstruction of justice if that person . . . corruptly persuades another person . . . [or] endeavors to influence, intimidate, or impede a witness . . . in any official proceeding, with intent to . . . [i]nfluence, delay, or prevent the truthful testimony of the person in an official proceeding." We have stated that "'indubitably, one is a witness, within the meaning of [the obstruction of justice statute], when he knows or is supposed to know material facts, and expectably is to be called to testify to them.'" (Darryl) Smith v. United States, 591 A.2d 229, 231 (D.C. 1991) (quoting United States v. Jackson, 513 F.2d 456, 459 (D.C. Cir. 1975)).
Jones first argues that the government was not able to prove that he had the intent to influence a witness, as is required by the statute, because he did not know that Moore would be called as a witness in his case. Second, Jones asserts that his statement to Moore was "a conditional statement that never actually directed Moore to do anything." According to Jones, he "only asked [Moore] whether [she] would make such a statement if he needed her to do that, and he never 'went that next step to ask [her] to lie and say [she was] at the club.'"
Jones's argument fails in light of Smith. In that case, the appellant approached his friend, who had not been at the scene of a killing, and asked the friend to testify that he had been with Smith during the killing and had witnessed someone other than Smith commit the crime. 591 A.2d at 230. The government charged Smith with obstruction of justice, and Smith, like Jones, argued that because his friend was not at the scene of the killing, he was not a witness when Smith talked to him; thus, Smith claimed he had not tried to encourage a witness to lie about Smith's involvement in the crime. Id. at 232. We affirmed Smith's conviction, reasoning that the obstruction of justice offense "covers the broad category of participants, potential or actual, . . . and its application extends not only to those who inherently fall within that category by their actual knowledge of material facts but those as well who are by the defendant's own acts brought within that category." Id. (emphasis added).
Here, as in Smith, we will affirm the trial court's judgment of conviction. Like the defendant in Smith, Jones "vest[ed]" Moore "with the status of one who 'may know' or 'is supposed to know,'" thus making Moore a witness within the meaning of the statute. 591 A.2d at 232. As explained above, by his actions, Jones brought Moore within the category of "witness" because he asked her if she would lie about the night in question. Moore was not at the scene and knew nothing about the incident; had Jones not spoken to her, Moore would not have been a witness. It was only Jones's request that she lie, if he asked her to do so, that made Moore a witness with information that would require her to testify.
Jones's second attack on the obstruction count -- that his conditional request for Moore to lie was not an effort to obstruct justice because Jones "never actually directed Moore to do anything" -- fails as well. One commits obstruction of justice if one "endeavors to influence" a witness in an official proceeding with the intent to "influence, delay or prevent the truthful testimony of the person in an official proceeding." D.C. Code § 22-722 (a)(2)(A). As we have stated, "[t]he gist of the crime is the endeavor to interfere with the administration of justice," and "[t]he use of the term 'endeavor' does not require success or even an overt attempt; it merely requires that the defendant have made 'any effort or essay to accomplish the evil purpose that the [statute] was enacted to prevent.'" Irving v. United States, 673 A.2d 1284, 1289 (D.C. 1996) (citing Ball v. United States, 429 A.2d 1353, 1359 (D.C. 1981), and quoting United States v. Russell, 255 U.S. 138, 142-43 (1921) (affirming Russell's conviction of "corruptly endeavoring to influence a juror" based on his attempt to pay a potential juror in his case, despite Russell's argument that he "was only in preparation of a sinister purpose," but had not yet attempted to influence the juror)).
Here, despite Jones's claim that he was only seeking a promise from Moore to lie if he later called upon her to do so, a jury easily could have found that his attempt to secure Moore's assurance on this question was an "endeavor to interfere with the administration of justice." Whether Moore definitely promised to lie, or whether Jones later called upon her to make good on her promise are irrelevant questions; there was sufficient evidence that Jones "endeavored," that is, made an "effort or essay to do or accomplish the evil ...