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Tyrone P. Fortune v. United States

January 17, 2013

TYRONE P. FORTUNE, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CF3-6767-09) (Hon. Robert R. Rigsby, Trial Judge)

The opinion of the court was delivered by: Washington, Chief Judge:

Argued January 18, 2012

Before WASHINGTON, Chief Judge, EASTERLY, Associate Judge, and FARRELL, Senior Judge.

Appellant Tyrone Fortune was convicted of first-degree burglary, attempted robbery, and unlawfully possessing a firearm after a felony conviction. On appeal, he claims that: (1) the trial court committed reversible error by holding a bench trial on the felon-in-possession charge without obtaining a valid waiver of appellant‟s right to a jury trial; (2) the trial court erred by failing to poll the jury regarding appellant‟s first-degree burglary and attempted robbery convictions; (3) the trial court violated appellant‟s constitutional right to be present during all stages of trial by failing to ensure appellant‟s presence during the portions of voir dire that were conducted at the bench; and (4) the evidence was insufficient to support his attempted robbery conviction. For the reasons stated below, we affirm in part and reverse in part.

I.

Erica Bernard and the appellant, Tyrone Fortune, are cousins. In December 2008, Ms. Bernard was living in an apartment with her wife, Lillian Holland, along with Ms. Holland‟s children and grandchildren. Fifteen-year-old Janon Washington lived in the apartment upstairs.*fn1

On December 29, 2008, Mr. Fortune arrived at the Bernard-Holland apartment and asked Ms. Holland whether Ms. Bernard was home. Ms. Holland replied that Ms. Bernard was not home and that she did not know where Ms. Bernard was, but Mr. Fortune did not believe her. He showed Ms. Holland a gun and told her to tell Ms. Bernard that he was looking for her, and that he was "not playing."

The next day, December 30, 2008, as Ms. Holland was cooking in her kitchen, Janon Washington entered the apartment, followed by Mr. Fortune. Ms. Holland told Mr. Fortune to leave. Mr. Fortune asked where Ms. Bernard was and Ms. Holland again told him to leave. After asking again where Ms. Bernard was, Mr. Fortune walked down the hall to Ms. Bernard‟s bedroom. Ms. Holland and Ms. Washington followed him.

When Mr. Fortune entered the bedroom, Ms. Bernard was sitting on her bed. Mr. Fortune was "jittery" and high on PCP. In a calm, low, voice, he stated, "What you thought, I was f___in‟ playing?" and "So you not going to give me no f___in‟ money?" Ms. Bernard was afraid of Mr. Fortune, whom she described as having a "real strong demeanor" and who had previously threatened to hit her. While Ms. Holland watched from the doorway, Ms. Bernard repeatedly asked Mr. Fortune, "[H]ow the "f___‟ did [you] get in my house?" Ms. Holland told Mr. Fortune to leave because he was disrespecting her house. Mr. Fortune refused to leave, said something, drew the same gun that he had shown to Ms. Holland the previous day, and pointed it at Ms. Bernard.

Ms. Bernard walked to the end of her bed. When Mr. Fortune "went to cock the gun," Ms. Bernard dove at him and the two began to fight. At that point, Ms. Holland took her granddaughter upstairs to Ms. Washington‟s apartment and left her there. Ms. Holland returned to the bedroom three minutes later, and the fight was still underway. At some point, Mr. Fortune dropped his gun. Ms. Bernard grabbed an aluminum bat and swung it at Mr. Fortune; she was uncertain whether she hit him but thought that she hit the wall. Ms. Holland saw Ms. Bernard hit Mr. Fortune‟s head; the blow did not stun Mr. Fortune or cause him to bleed. Mr. Fortune threw Ms. Bernard up against a wall and then flipped Ms. Bernard‟s mattress, stating "that he knew there was some money in there."

Ms. Holland entered the room carrying a telephone. Mr. Fortune asked "who the f___ she was calling?" Ms. Holland stated that she was going to call the police. Mr. Fortune then stated "I‟ll be back; I‟ll be back," and left the apartment.*fn2

Ms. Bernard and Ms. Holland returned to the bedroom, moved the mattress, and located Mr. Fortune‟s gun in front of the dresser. Ms. Holland told Ms. Bernard not to touch the gun. However, Ms. Bernard unsuccessfully tried to "uncock" the gun so that it would not discharge and then put it on the dresser. She then called the police and reported that: (1) her cousin had come into her house "complaining"; (2) she and her cousin had "gotten into it"; (3) her cousin pulled out a gun and acted like he was going to shoot her; (4) she and her cousin "got into a tussle."

Mr. Fortune was eventually arrested and charged with, inter alia: first-degree burglary while armed, in violation of D.C. Code §§ 22-801 (a), -4502 (2001); attempted robbery while armed, in violation of D.C. Code §§ 22-2802, -4502, -1803 (2001); and unlawful possession of a firearm after having previously been convicted of a felony, in violation of D.C. Code § 22-4503 (a)(2) (2001) (a)(2) (2001 & Supp.2008).*fn3

On December 18, 2009, after trial, a jury found Mr. Fortune guilty of the lesser unarmed offenses of first-degree burglary and attempted robbery, and the trial judge found Mr. Fortune guilty of unlawfully possessing a firearm after a felony conviction (felon-in-possession). This appeal followed.

II.

Mr. Fortune first claims that the trial court erred by failing to obtain a valid waiver of his right to a jury trial before holding a bench trial on the felon-in-possession charge. Mr. Fortune did not object to the trial court‟s failure to obtain a waiver at trial. We have not resolved whether a defendant must satisfy the strictures of plain error review where a trial court fails to fulfill its duty to elicit a waiver of his Sixth Amendment right to a jury trial and, ...


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