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Harrison v. United States

Court of Appeals of Columbia District

August 29, 2013

Steven T. HARRISON and Denardo D. Hopkins, Appellants,

Argued Feb. 5, 2013.

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Donald L. Dworsky, for appellant Steven T. Harrison.

Christopher R. Pudelski, for appellant Denardo D. Hopkins.

Leslie Ann Gerardo, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and Vinet Bryant, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and FERREN, Senior Judge.

FISHER, Associate Judge.

Appellants Steven Harrison and Denardo Hopkins challenge several of their convictions stemming from an attempted armed robbery and felony murder. We affirm, vacating only those convictions that merge.

I. Background

Brian Thompson purchased marijuana from his friend Michol Brown (" Mike-Mike" ) approximately two times per week. On three of those occasions, Thompson's childhood friends, Steven Harrison and Denardo Hopkins (" Boo Boo" ) accompanied him, although they did not purchase any marijuana themselves. On the first occasion, Harrison stated, " Let me get your man," which Thompson interpreted to mean " that he [Harrison] wanted to rob [Brown]." Hopkins was present but did not say anything. Similarly, on " another trip to buy weed," Harrison stated, " Son, let me get your man for his money and drugs." Hopkins was again present but said nothing. On both occasions, Thompson refused, saying, " That's my man."

On December 3, 2007, Harrison and Hopkins again accompanied Thompson when he went to purchase marijuana from Brown. They picked Thompson up from his uncle's house before meeting Brown at an AutoZone located on South Capitol Street. Hopkins parked in the parking lot and, while the three waited for Brown to arrive, Harrison again stated to Thompson, " Let me get your man." Thompson again said, " [N]o, I can't let you all ... get him," to which Hopkins responded, " So what? You scared?"

When Brown arrived and parked nearby, Thompson got out of the car. Thompson was " getting halfway to [Brown's] truck" when Harrison exited Hopkins' vehicle. Thompson " waved to [Harrison] to tell him to go back," but Harrison continued walking towards the truck. Thompson got into Brown's vehicle behind the front passenger seat. Harrison sat behind the driver's seat. Kenyada Davis (" Little K" ), Brown's best friend, sat in the front passenger seat.

Once both Harrison and Thompson were inside Brown's vehicle, Brown passed marijuana to Thompson in exchange for fifty dollars. Shortly thereafter, Thompson observed Hopkins walking towards Brown's truck from the driver's side. As Hopkins was still approaching Brown's vehicle, Harrison " pulled out the gun [[1]] to K [Davis] and tell both of them [Brown and Davis] to give it up." [2] In response to

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Harrison's demand and gesture, Davis " reached back and tried to take the gun." Harrison then fired a shot that hit Davis. Within seconds, Hopkins fired through the driver's side window of Brown's vehicle, shattering the glass and striking Brown. Brown and Davis then ran into the AutoZone store. Brown collapsed and later died; Davis suffered a gunshot wound from which he recovered.

Harrison and Hopkins ran back towards their vehicle and drove away, leaving Thompson behind. Thompson " didn't want to ... get caught on the scene," so he drove to Congress Park in Brown's vehicle and parked it in an alley. Thompson then went to a nearby recreation center where he encountered Harrison and Hopkins. Thompson asked Hopkins, " Man, why y'all do that?" In response, Hopkins told Thompson, " Son, I think I killed one of them." Thompson said he thought Hopkins just " shot him in his shoulder," but Hopkins replied, " No, I did kill him, son." During this conversation, Hopkins told Thompson that the type of gun he had was a " 9." Thompson never saw Brown or Davis with a gun that night; Thompson himself did not have a gun.

On February 28, 2008, after Harrison was advised of and waived his rights, he gave a videotaped statement to Detective Dwayne Corbett. In the statement, a redacted version of which was played for the jury,[3] Harrison acknowledged that he fired his gun inside the truck. Although Harrison stated that he believed the front seat passenger was reaching for something, he admitted that he reached for his gun first. Detective Corbett testified that Harrison did not assert at any point during the interview that he saw either Davis or Brown with a gun— either inside the vehicle or outside, as Davis and Brown were running away.

Hopkins testified that he was not in the parking lot of the AutoZone store that evening, and he denied planning to rob or attempting to rob Brown or Davis. Hopkins also asserted that he did not shoot either Brown or Davis.

Hopkins and Harrison were each charged with conspiracy to commit robbery, D.C.Code §§ 22-1805a, -2802 (2001); two counts of attempted armed robbery, D.C.Code §§ 22-2802, -4502, -1801 (2001); four counts of possession of a firearm during a crime of violence or a dangerous offense, D.C.Code § 22-4504(b) (2001); felony murder while armed, D.C.Code § 22-2101, -4502 (2001); assault with intent to kill while armed, D.C.Code §§ 22-401, -4502 (2001); and carrying a pistol without a license, D.C.Code § 22-4504(a) (2001). Additionally, Harrison was charged with tampering with physical evidence, D.C.Code § 22-723 (2001); malicious destruction of property, D.C.Code § 22-303 (2001); obstructing justice, D.C.Code § 22-722(a)(2)(A) (2001); and threats to do bodily harm, D.C.Code § 22-407 (2001). On March 11, 2010, a jury found Hopkins guilty on all counts. The jury acquitted Harrison of obstruction of justice and threats, but found him guilty on all other counts.

II. Analysis

A. Judicial Notice

On January 12, 2010, Judge Rankin [4] held a pretrial hearing on Harrison's oral motion to suppress his statement. Detective Corbett testified that Harrison

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spent " over ten hours" at the hospital to receive treatment for a hand injury he sustained while trying to elude the police. After they reached the police station, Detective Corbett advised Harrison of his rights and Harrison agreed to speak with him. During the interview, Harrison was not handcuffed, Corbett did not have his weapon drawn, and Corbett did not threaten Harrison in any way.

When Harrison's counsel was cross-examining the detective, the court called counsel to the bench and announced it was taking judicial notice that Harrison had been convicted of armed robbery in a case in which he made a videotaped confession, and that Harrison was represented in the prior case by the same counsel who represented him in the current matter. " I just say this because one of the things that the Court has to take into consideration ... [is] his past experience with the system. And so it looks like he's well experienced and knows all about his rights and confession." It is not clear from the record what brought this information to Judge Rankin's attention.

At the conclusion of the hearing, the trial court found " that this statement that Mr. Harrison gave at the 7th District was voluntary given his knowledge of his constitutional rights and that the waiver was a valid waiver." The court also observed that appellant's prior experience with the system was relevant to the determination of voluntariness; " the records [containing the facts] are public record" ; and " the very first thing [the court] did when [it] saw [the information] was to call it to [the parties'] attention." The court reasoned that it " would be foolish of the court to try to make a decision on a constitutional issue such as this without having facts that help to determine whether or not this young man's freedom of choice was overborne by police tactics or methods."

As appellant concedes, a court may take judicial notice of its own records. See Washington v. United States, 760 A.2d 187, 194-95 (D.C.2000). We caution, however, that doing so sua sponte may create an appearance of partiality.[5] Nevertheless, " bias is not shown by taking judicial notice of relevant evidence." In re Marshall, 549 A.2d 311, 314 (D.C.1988); see also id. at 312 n. 3 (noting that the judge had collected other court files related to attorney charged with contempt). Moreover, the procedures employed by the trial court in this case were fair. The trial court disclosed the facts that were being noticed, explained why, and gave appellant an opportunity to contest those facts.

Ultimately, appellant has not shown that the court's taking of judicial notice prejudiced him by affecting the outcome of his motion to suppress. Harrison's counsel, who was uniquely qualified to do so, did not question the accuracy of the facts noticed by the court. Appellant does not dispute the legal relevance of those facts. Moreover, although his counsel urged him to do so, Harrison chose not to testify at the ...

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