Omar A. Euceda, Appellant,
United States, Appellee.
Argued October 16, 2012
Appeal from the Superior Court of the District of Columbia (FEL-3044-04) (Hon. Lee Satterfield, Trial Judge) (
Deborah A. Persico for appellant.
Joseph Virgilio was on the brief for appellant.
Leslie Ann Gerardo, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Gary Wheeler, Assistant United States Attorney, were on the brief, for appellee.
Before Blackburne-Rigsby, Thompson, and Beckwith, Associate Judges.
Beckwith, Associate Judge
A jury note puzzlingly "fell through the cracks" during deliberations in appellant Omar Euceda's trial on felony murder while armed, attempted armed robbery, and weapons charges. When Mr. Euceda's lawyer opened the file to begin work on an appeal, he discovered the note—posing two detailed questions about an element of attempted armed robbery—but found no record that the trial court ever had responded to the questions. Counsel also determined that neither Mr. Euceda's trial counsel nor the government had been informed of the note's existence or given a chance to react to it.
Four years after the trial, not a single juror questioned about the note remembered it in any detail, and two days of hearings yielded little definite information about the specific note or any response from the court. Taking the jurors' testimony as a whole, however, it appears that someone answered the note after all, and there is evidence that it was the judge's courtroom clerk, not the judge, who formulated the response. Two jurors remembered being told, in response to "a note, "to refer back to instructions the judge already had given them. And it remains clear that neither defense counsel nor Mr. Euceda was informed of what the trial judge later called "a very substantive note"or was allowed an opportunity to shape the court's response.
While the jurors' supplemental testimony is far from conclusive, we are presented with an adequate record on which we hold that because a clerk received and responded to the note without alerting Mr. Euceda or his counsel, Mr. Euceda was deprived of his constitutional right to "the presence of defense counsel and the accused at all critical stages of the prosecution."United States v. (James) McCoy, 429 F.2d 739, 742 (D.C. Cir. 1970); see also Winestock v. United States, 429 A.2d 519, 528 (D.C. 1981) ("[A] defendant and his counsel have a right to be informed of all communications from the jury and to offer their reactions before the trial judge undertakes to respond."). This error is obvious, undisputed, and implicates important rights at the crucial moment of a trial when a confused jury seeks further instruction from the trial judge, whose "influence . . . on the jury is necessarily and properly of great weight."Bollenbach v. United States, 326 U.S. 607, 612 (1946). The circumstances and substance of the response in all likelihood prejudiced Mr. Euceda, failing to clear up the jury's confusion over the critical question whether Mr. Euceda attempted an armed robbery and thus committed felony murder in killing Walter Kirkland, the decedent in this case. See id. at 612-13. We reverse all but one of Mr. Euceda's convictions and remand for a new trial.
A. The Shooting of Walter Kirkland
Appellant Euceda and another young man, Ivan Gallow, were accused of trying to rob two drug dealers—Walter Kirkland and Deandre Abbott—on the evening of November 9, 2003, and killing Mr. Kirkland in the process. A jury convicted Mr. Euceda in August 2006 of all the counts in the indictment against him: first-degree felony murder while armed (Count 1); two counts of attempted armed robbery, one against Mr. Kirkland (Count 2) and the other against Mr. Abbott (Count 3); two counts of possession of a firearm during the commission of a crime of violence or dangerous offense (PFCV) (Counts 4 and 5); and carrying a pistol without a license (CPWL) (Count 6). Count 1 of the indictment expressly charged Mr. Euceda with armed felony murder during the commission of Count 2. Mr. Euceda's conviction for felony murder thus depended on the jury finding that he attempted to rob Mr. Kirkland.
At trial, the performances of the government's main eyewitnesses were not, as the government acknowledged in its closing argument, "Hollywood"material. Though testimony from both men—Ivan Gallow and Deandre Abbott, Mr. Kirkland's partner in selling marijuana that night—implicated Mr. Euceda in the shooting of Mr. Kirkland, this testimony was often confusing and contradictory. The two men also disagreed with each other on key interactions between the accused robbers and the drug dealers.
Mr. Abbott testified that he and his cousin Mr. Kirkland, both African-American, were approached by two Latino men as they walked in the 3200 block of 11th Street in Northwest Washington, D.C. One of the Latino men, whom Mr. Abbott later identified in a photographic lineup as Mr. Gallow, asked them if they had an ounce of marijuana to sell. Mr. Kirkland replied that they did not have that much but could sell them a smaller amount. The shorter of the Latino men, whom Mr. Abbott identified in a second photo lineup as Mr. Euceda, never said anything but kept his hands in his pockets and "made [Abbott] nervous."As Mr. Kirkland showed Mr. Gallow two dime bags of marijuana and Mr. Gallow pressed him for an ounce instead, Mr. Euceda "started moving in the street and everything, like he was trying to reach for something, "so Mr. Abbott "took off running"and "didn't look back."As he turned a corner, he heard a gunshot. On cross-examination, Mr. Abbott added details to his testimony, including that Mr. Gallow "got the weed from us"then "asked what I had in my pocket."Mr. Abbott also said Mr. Gallow "reached for my pockets [and] I smacked his hand away, and that's when I took off running."
Mr. Gallow, on the other hand, testified that the two African-American men were trying to rob them, not the other way around,  and he told a much longer story of their interactions that night. His recounting of the night included multiple run-ins between the two pairs of young men, and a meeting he and Mr. Euceda had with another drug dealer. Mr. Gallow testified that an "associate"he knew as "Omar"came to his house the evening of the shooting, showed him a gun he stole, and said he wanted to go out and "steal a car stereo."As soon as they left the house, "the plan changed": "Omar"—the man the government insisted, not unconvincingly, was Omar Euceda—now wanted to "rob some drug dealers."The plan was that Mr. Gallow would translate for Mr. Euceda, telling the drug dealer that they wanted an ounce of marijuana, and when the dealer led them away from the area to get the drugs, Mr. Euceda would use the gun to rob the dealer.
On the way to an alley near "Hobart . . . where they sell drugs, "two African-American men saw Mr. Gallow and Mr. Euceda from across the street and made "signs [asking], do we want to buy some drugs."Mr. Gallow told them no, and he and Mr. Euceda continued to the alley, where they met another drug dealer whom they "were going to just rob"if everything went according to plan. When Mr. Gallow asked for an ounce, however, the dealer left and returned with the drugs, spoiling their plan of leaving the area with the dealer. After smelling the drugs, Mr. Gallow and Mr. Euceda realized that there were people around, so they left. Though he noticed the two African-American men behind them, Mr. Gallow ignored them, "just happy the whole situation [with the other dealer] didn't happen."
Mr. Gallow and Mr. Euceda ran into the two men again, however, as they noticed the men were following them on their way to Lamont Street to buy beer. Finally, one of the men went in front of Mr. Gallow and, with his back turned to Mr. Gallow, "grab[bed]"Mr. Euceda, turned him around, and said, "Come here."That is when Mr. Gallow heard shots. Mr. Gallow did not see either of the African-American men with a gun but knew that Mr. Euceda had a gun at the time he heard the shots. Mr. Gallow admitted that he at first told the police nothing of his and Mr. Euceda's plan to rob drug dealers. He told the police that the African-American men tried to rob him and Mr. Euceda, and he maintained in his trial testimony that this was true.
B. Jury Instructions and Deliberations
Superior Court Judge (later Chief Judge) Lee Satterfield instructed the jury on August 3, 2006. He told jurors to consider separately each count of the indictment, and the evidence for each, and then instructed them on the elements of each offense. On the charge of felony murder while armed, Judge Satterfield told jurors, among other things, that they must find beyond a reasonable doubt: "1) that the defendant caused the death of the decedent; 2) that he did so while committing or attempting to commit robbery while armed; 3) that at that time of the offense, the defendant was armed with a pistol or firearm."For the charge of attempted robbery while armed, the judge began by telling the jurors that there were two counts to ...