CHARLES E. MOBLEY, DANTE CARPENTER, AND GERALD A. THOMPKINS, APPELLANTS,
UNITED STATES, APPELLEE
Argued December 6, 2013.
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Appeals from the Superior Court of the District of Columbia. (CF3-27290-07, CF2-9878-08, CF3-28751-07). (Hon. Harold L. Cushenberry, Jr., Trial Judge).
Jennifer Wicks, appointed by the court, for appellant Charles E. Mobley.
Shilpa S. Satoskar, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Dante Carpenter.
Judith A. Lovelace, appointed by the court, for appellant Gerald A. Thompkins.
David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and Melinda Williams, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and REID, Senior Judge.
Reid, Senior Judge :
A jury convicted appellants, Charles E. Mobley, Dante Carpenter (aka Cornell Swangin), and Gerald A. Thompkins, of multiple criminal offenses arising from the firing of numerous gunshots at a nightclub in the Northeast quadrant of the District of Columbia, a police chase of the perpetrators, and alleged efforts by two of the co-defendants to obstruct justice and to attempt tampering with physical evidence. Appellants raise multiple challenges to their convictions. For the reasons set forth below, we affirm the trial court's judgment in part, reverse it in part, and remand the case for resentencing. Specifically, (1) we conclude that the trial court did not abuse its discretion by denying Mr. Mobley's motion for severance; (2) on the merger issues, we hold that appellants' ADW convictions pertaining to Officers Geddies and Evely merge with the APOWA convictions relating to those officers, and that the seven PFCV convictions of each appellant merge into one, but we reject the other merger arguments advanced by Mr. Mobley and Mr. Carpenter; (3) we are not persuaded by Mr. Thompkins's argument that his two APOWA felony convictions must be reduced to misdemeanors; (4) we vacate Mr. Thompkins's and Mr. Carpenter's obstruction of justice convictions; (5) we affirm Mr. Thompkins's attempted tampering conviction; (6) we affirm Mr. Thompkins's CPWL conviction; and (7) we affirm the trial court's remand decision denying appellants' new trial motion based on juror misconduct.
The government presented testimony from numerous witnesses concerning multiple gunshots outside a nightclub around 3 a.m. on November 24, 2007. Prior to 3 a.m., Metropolitan Police Department Officers, Samuel Geddies, Gregory Evely,
James Sulla, and Lance Bishop arrived at Club Envy, located at Queens Chapel Road and Adams Street, Northeast. They occupied separate, marked police vehicles and wore police uniforms. They were assigned to traffic and crowd control due to a large crowd at the club. Officers Evely and Bishop were parked at Queens Chapel Road and Adams, about five feet from Club Envy. Officer Geddies stationed his vehicle about two feet from Officer Evely's car, and Officer Bishop about seven feet from Officer Evely's car. Officer Sulla was parked across from Club Envy, about ten feet away from Officer Evely.
Ralph Anwan Glover and his Backyard Band had performed at the club. Because he was wet from perspiration, Mr. Glover decided to go to his car, parked on the side of the club near the entrance, to get his " tee shirt." He testified that he had not experienced any problems or been involved in any altercations or arguments during his performance, and he left the club alone. He had almost reached his vehicle when gunshots began to " whistle" past his face. He " got down on the ground." He estimated that there may have been ten, fifteen rounds fired past his face, and a total of about twenty to thirty shots. The shots were coming from two directions. He could not see who was firing the shots. He crawled between cars until he reached an alley, and then he ran up the alley, made his way back to his vehicle, and drove home.
Officers Geddies, Evely, Sulla, and Bishop also were in the line of fire. Officer Geddies was inside his police car, facing the club, when he thought he heard gunfire to his left. He turned and noticed " what looked like some type of altercation . . . a block down the street." He exited his vehicle and saw someone shooting at him. The individual stood next to a black vehicle. Officer Geddies also observed two or three other individuals shooting at " someone or something" -- firing at the wall of the club or vehicles. He heard gunshots hitting his car and " vehicles around" him. As he approached the altercation, someone fired at him. He took cover and " returned fire," after yelling, " Police." Officer Evely was " pinned down" behind his vehicle. Officer Geddies saw four individuals leave the scene in the black vehicle.
Officer Evely gave the following testimony. He was outside his police cruiser when five black males walked out of the club at a " brisk pace" while the music was still playing inside the club. Officer Evely became suspicious because the men had left the club before the music ended. The men walked between his police car and Officer Geddies's car. They proceeded to a black Dodge Charger on Queens Chapel Road, about thirty feet from the club. Streetlights illuminated the area. Officer Evely described how the men looked that night, and in court he identified Messrs. Mobley, Carpenter, and Thompkins as three of the men. He was familiar with and saw Mr. Glover's car near the entrance of the club. Four males got into the black Dodge Charger. They quickly " came out [of the Charger], and started shooting." Officer Evely identified the three defendants as three of the men he saw firing guns. The men fired approximately twenty or twenty-five shots in the direction of the officers. Officer Evely stated that " they [were] firing shots at us."
Officer Geddies' car was hit. Officer Evely took cover, and one of the men shot at him. When the shooting stopped, Officers Evely and Bishop pursued the men.
Otis Bartlett, a licensed special police officer employed by the Edgewood apartment complex to provide security, was on duty around 3:00 a.m. on November 24, 2007. He and other security officers were outside and about to begin their patrol around the grounds when Mr. Bartlett heard police sirens. A black Dodge Charger pulled up on the grass between apartment buildings, followed by a police cruiser. " [S]everal male[s] jump[ed] out of the car and start[ed] to flee." Three or four people ran in Mr. Bartlett's direction. Mr. Bartlett was unarmed and took cover when he heard shots. He recognized one of the men and made an in-court identification of Mr. Carpenter. He chased the men, and a man with dreadlocks threw a dark object into the brush. When Mr. Bartlett arrived at the 611 Edgewood building, he learned that one man had been apprehended; the man had a shoulder wound and later was identified as Mr. Carpenter. Mr. Bartlett and another special police officer went back to look through the brush and Mr. Bartlett discovered " a black handgun, automatic." He notified an MPD officer.
Around the time of the shooting incident at Club Envy, Detective Anthony Commodore was on duty at the Fifth District police station, a few blocks away. He was about to get into his car " when [he] heard a lot of gunshots." He was dispatched to the Club and then went to the Edgewood apartment complex. He met Officer Evely outside of 611 Edgewood Street, and Officer Evely indicated that one of the perpetrators was inside the building. Detective Commodore saw the alleged perpetrator and made an in-court identification of Mr. Carpenter as the man who had been apprehended.
Upon arriving at the Edgewood complex after following the Dodge Charger, Officer Evely noticed three individuals from the Charger run toward the 611 Edgewood building and one toward the 601 Edgewood building. He identified Mr. Mobley, who had been shot in the ankle, as the person who ran into 601 Edgewood. He also went to 611 Edgewood and identified Mr. Carpenter as one of the men who had fired gunshots at the club. Later, on December 7, 2007, he viewed a photo array and identified Mr. Thompkins as the third perpetrator.
William Sinclair, who had prior criminal convictions and who had a plea agreement with the government regarding a 2007 offense, testified that he and Mr. Carpenter were at the D.C. Jail at the same time. Mr. Carpenter had shared a cell with him for a day when the light in Mr. Carpenter's cell went out. Mr. Carpenter asked if Mr. Sinclair had heard about Mr. Carpenter's case, and Mr. Sinclair said he had not. According to Mr. Sinclair, Mr. Carpenter made the following statement. " [H]e [Mr. Carpenter] went to the club[; ] [h]e [saw] someone he was beefing with[,] [s]o some people went to their car to get their guns. [F]irst they w[ere] beefing but they started shooting." " Four" people went outside to get their guns. He [Mr. Carpenter] saw " the person he was beefing with outside. They started shooting." In response to the prosecutor's question, " [t]hey meaning who? Who started shooting?" Mr. Sinclair replied, " Shay [Mr. Carpenter]." Mr. Carpenter also stated,
" [s]omehow they ended up shooting towards the police." When the prosecutor inquired whether Mr. Carpenter said " why they were shooting in the direction of the police," Mr. Sinclair responded, " [t]he guy ran towards them." The " guy" meant " [t]he person they were beefing with." " They started shooting back." Mr. Sinclair assumed that " they" meant " [t]he police." The trial judge instructed him not to assume and Mr. Sinclair remarked, " [h]e [Mr. Carpenter] just said they started shooting back." " They jumped in their cars [a]nd . . . they sped off towards the Edgewood neighborhood. The police were chasing him." The car was " [a] black Dodge Charger." When they got to Edgewood, Mr. Carpenter " jumped out the car[,] [t]hrew his gun towards the bushes[, and] ran in a building. He felt as though he was about to pass out. That's when he was arrested."
Sergeant Michael Menefee, a Department of Corrections litigation coordinator, confirmed that Mr. Sinclair and Mr. Carpenter were housed in the same cell from January 10 to January 11, 2008. He also testified about recorded telephone calls made by Mr. Carpenter from the D.C. Jail to Mr. Thompkins (Gerald). The calls were recorded on a compact ...