Appeals from the Superior Court of the District of Columbia (CF1-5070-08, CF2-22126-09) (Hon. Herbert B. Dixon, Jr., Trial Judge)
The opinion of the court was delivered by: Reid, Senior Judge:
Before, WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID, Senior Judge.
Opinion for the court by Senior Judge REID.
Opinion by Associate Judge GLICKMAN, concurring in part and dissenting in part, at page 34.
Appellant Cyrus Contez Harrison was convicted by a jury on various charges, including first-degree murder (premeditated) and obstruction of justice.*fn1 He challenges the sufficiency of the evidence relating to his obstruction of justice and conspiracy to obstruct justice convictions. In addition, he contends that the trial court committed reversible error in two instances, one relating to an evidentiary ruling and the other to the government's closing argument. For the reasons set forth below, we are constrained to vacate Mr. Harrison's convictions on the conspiracy and obstruction of justice charges, and to remand the case to the trial court with instructions to enter judgment of acquittal as to those charges. However, we affirm all of his other convictions.
The government presented testimony and other evidence showing that George Henry Hill was murdered on September 24, 2007, in the Northeast quadrant of the District of Columbia. Dr. Lois Goslinoski, the District's deputy medical examiner, performed an autopsy on Mr. Hill and reported that he suffered five gunshot wounds to his torso (chest, back, abdomen) and left arm. The bullet that entered his back caused "rapidly fatal" injuries to the spinal column, aorta, and the lungs. Dr. Goslinoski recovered two bullets from Mr. Hill's body which she turned over to the Metropolitan Police Department's ("MPD") mobile crime officer assigned to the autopsy.
Keith West, Jr. ("Mr. West Jr."), the government's main witness, was
twenty-two years old at the time of trial, and had been close friends
with Mr. Harrison for about ten years. He described the events leading
to Mr. Hill's murder. Around 2 p.m. on September 24, 2007, both young
men began playing a series of dice games (craps) for money with Mr.
Hill. They played into the night, with breaks in between games. During
one of the breaks, Mr. Harrison gave Mr. West Jr. a gun to hold for
him; Mr. West Jr. placed the gun in a bush near the site of the games.
Eventually, a heated argument broke out after Mr. Hill emerged as the
victor and decided to leave with the money he had won.*fn2
In response to Mr. Harrison's request, Mr. West Jr. retrieved
the gun, gave it to him, and began walking away. He continued to walk away as he heard the gun cock; soon
he heard gunshots, got down on the ground, saw Mr. Harrison chasing
Mr. Hill while firing the gun, and watched him stand over and shoot
Mr. Hill again.
On October 16, 2007, Mr. West Jr. joined the Army. He was stationed in South Carolina when two MPD detectives visited him on January 11, 2008. They asked him questions about September 24, 2007. At first and for about one hour, Mr. West Jr. lied to them about the events of that day in order to "help" his friend (Mr. Harrison). Mr. West Jr. even invented characters named Mike and Donald whom he placed at the scene during the shooting, and he maintained that he did not know who did the shooting when the detectives pressed him. He changed his mind about telling lies to assist Mr. Harrison and after asking what would happen to his friend, Mr. West Jr. wrote Mr. Harrison's name on a piece of paper, signed and dated it. The detectives recorded what transpired next during the interview, including what Mr. West Jr. said as he identified Mr. Harrison from a photo array. Mr. West Jr. signed a statement prepared from the recording.
Detective Kimberly Lawrence witnessed part of the shooting on September 24, 2007. She had gone to the block where the shooting occurred to serve a subpoena. She heard gunshots and saw one person shooting another individual as the individual fell to the ground. After the victim had fallen to the ground, the shooter fired more shots and then ran off. Although she could see the shooting, which took place about one half block from where she was standing, Detective Lawrence could not see the shooter's facial features, but she described his hairstyle as shoulder-length plats or dreadlocks and his clothing as a black T-shirt, blue jeans and a knitted cap.
Amobi Agu, a man with a history of bank robbery convictions and Mr. Harrison's friend for ten years, entered into a plea agreement with the government with respect to a criminal matter in Virginia, and agreed to testify against Mr. Harrison. He claimed that he regularly played dice with Mr. Harrison and he heard him make incriminating statements after the September 24, 2007, murder of Mr. Hill. He listened as Mr. Harrison (a) described to others how Mr. Hill was crying and begging after he first shot him, and (b) stated that he "hit [Mr. Hill] again" with gunfire. Mr. Agu also personally spoke with Mr. Harrison who explained that Mr. Hill was cheating during the dice games, that Mr. Harrison "got aggravated" and "pulled his gun out and shot him."
MPD Officer Jay Gregory, a crime scene investigator, and Officer Kelvin Dyson of MPD's tactical canine unit revealed what they found at the scene of the crime on September 24. Officer Gregory collected clothing, shell casings, and a round of ammunition. With the help of a dog, Officer Dyson located a handgun.
An independent expert firearms examiner, Michael Mulderig, examined the bullets that Dr. Goslinoski removed from Mr. Hill's body, the shell casings and the 9 millimeter Luger handgun recovered from the crime scene. He testified that the 9 millimeter Luger cartridge casings and ammunition were fired from the 9 millimeter Luger handgun. However, he could not "say for sure that [the bullets] were fired in [the Luger] pistol," but he stated that "the amount of lands and grooves, being eight, and the direction of twist are the only type of lands and grooves that are manufactured in that particular firearm."
Obstruction of Justice and Conspiracy to Obstruct Justice Convictions
Mr. Harrison argues that his convictions on charges of obstruction of justice and conspiracy to obstruct justice must be reversed because the government "failed to establish beyond a reasonable doubt a crucial element of [these] charges: that [he] possessed the specific intent to prevent [Mr. West Jr.'s] truthful testimony."
The government asserts that Mr. Harrison's "argument boils down to an impermissible attempt to substitute [his] own view of the evidence for the permissible inferences that the jury was entitled to draw." The government maintains that the jury could draw reasonable inferences based upon both words used in three telephone conversations between Mr. Harrison and his father, and an in-person conversation between Mr. Harrison's uncle and Mr. West Jr.'s father.
To provide the factual context for our analysis of the conspiracy and obstruction of justice issues, we set forth the evidence presented by the government at trial. Close to July 6, 2009, the scheduled date of his first trial, Mr. Harrison called his father three times from the D.C. Jail; the calls were recorded by officials at the jail. On June 20, 2009, Mr. Harrison told his father that he needed to talk to him; he also asked his father to tell Dequan (Mr. Harrison's brother) that he "need[ed] Little Keith's (Mr. West Jr.'s) number," and he remarked, "I gotta catch up with Little Keith." In a second call on June 25, 2009, Mr. Harrison referred to Mr. West Jr. as "Shorty" and stated: "They say little Shorty supposed to come back . . . Friday [or] Saturday." Mr. Harrison's father declared, "Well, what the hell would he be coming back for?" Mr. Harrison replied that he did not know and was "trying to find out." The father then said, "Oh, that don't, that don't sound good." After recalling that Mr. Harrison was scheduled to go to trial on July 6, the father stated, "I don't know, it might, it might not be, it might not be nothing, though." Mr. Harrison answered, "Uh-huh." The father reiterated, "Well, it might not, yeah, it might not be, it might not be, it might not be nothing." Mr. Harrison asserted, "yeah, I don't know, man. Yeah, I ain't . . . ." The father interrupted saying, "[d]on't even worry about that. It might not be, it might not be, it might not be nothing." Mr. Harrison replied, "Uh-huh."
During a telephone call on July 4, 2009, Mr. Harrison asked his father, "did they ever take care of Shorty?" His father answered, "they talked to his father, right, but I don't think anyone talked directly to him." Mr. Harrison responded, "Yeah."
In addition to the recorded jail telephone conversations between Mr. Harrison and his father, the government presented the testimony of Keith West, Sr. ("Mr. West Sr.") who testified about a conversation he had with Keith Harrison ("Mr. K. Harrison"), appellant's uncle, at a boxing gym around June 2009, prior to appellant's first trial (scheduled to begin on July 6, 2009). At the time of the conversation, Mr. West Sr. had known since April 2009, that his son had to appear in court but he had only a vague understanding about the case. Mr. K. Harrison and Mr. West Sr. attended the same school when they were growing up, and Mr. K. Harrison testified that he went to the boxing gym out of curiosity about the gym. During a 30-minute conversation between the two men, Mr. K. Harrison discussed the murder of Mr. Hill, indicating that appellant was charged with the murder and that Mr. West Jr. "had information connected to that case." Mr. West Sr. "fe[lt] threatened" and "uneasy" when Mr. K. Harrison asked where Mr. West Jr. was and whether ...