Argued: November 9, 2012.
[Copyrighted Material Omitted]
Appeals from the Superior Court of the District of Columbia. (CF1-15431-07, FEL-1573-03 & CF1-20622-08). (Hon. Frederick H. Weisberg, Trial Judge).
Jonathan S. Zucker, with whom Patricia Daus was on the briefs, for appellant Israel.
Quin M. Sorenson, with whom David M. Schilling, Kristen Mann, David W. DeBruin, and Ishan K. Bhabha were on the briefs, for appellant Cheadle.
Sarah T. Chasson, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, then Assistant United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, John P. Mannarino, Shana Fulton, Deborah L. Sines, Amanda Haines, Kathryn Rakoczy, and Peter S. Smith, Assistant United States Attorneys, were on the briefs, for appellee.
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and PRYOR, Senior Judge.
Thompson, Associate Judge :
Following a seven-week jury trial, appellants Ronald Marquet Cheadle and Azariah Israel were convicted of murder, robbery, conspiracy, obstruction of justice, and weapons charges. After the trial court denied their motions for new trials, they filed these consolidated appeals, in which we consider claims that the trial court (1) erred in rejecting appellants' claim that African Americans were underrepresented in and systematically excluded from jury venires at the time appellants' petit jury was selected (the " fair cross-section claim" ); (2) allowed improper rebuttal argument by the prosecutor; (3) improperly removed a juror during deliberations (the " juror removal claim" ); (4) erroneously denied Israel's motion for a new trial after joinder was shown to have been prejudicial; and (5) erred in denying Cheadle's new-trial motion premised on a claim that the weight of the evidence did not support the jury's verdicts.
Following oral arguments before this court in November 2012, we remanded the cases for additional proceedings related to
appellants' fair cross-section and juror removal claims. The Superior Court issued its Findings of Fact and Conclusions of Law on Remand in November 2013. Thereafter, the parties filed supplemental briefs as to both claims, completing the briefing on April 1, 2014. Having reviewed the trial court's supplemental findings and considered the arguments raised in appellants' initial and supplemental briefs, we now affirm the judgments of conviction and the denial of appellants' new-trial motions.
The charges on which appellants were tried relate to the murders of Asheile George, Elias Atkins, and Pierre Johnson. The government alleged that the Atkins and Johnson murders were committed pursuant to a conspiracy to obstruct justice by silencing witnesses who might provide inculpatory testimony about Cheadle's role in the murder of George and then of Atkins.
A. The Asheile George Murder
The government presented evidence that, on September 14, 2002, Cheadle, Atkins, and Michael Craig committed an armed robbery and an attempted armed robbery in the 500 block of Kenyon Street, N.W. Government witnesses testified that the three men approached Kenyon Street driving in a van, confronted a group of men (including George) who were playing a game of craps on the street, and " stuck everybody up[,]" and that Atkins and another robber then crossed the street to rob another group of people who were sitting in a car. A gun battle ensued after one of the victims began to defend himself, and six people, including Cheadle and George, were shot. George eventually died of his wounds. Renee Beach, the mother of Cheadle's child, acknowledged at trial that she testified before the grand jury that Cheadle told her that he had been shot while walking to his car on Kenyon Street. The jury also heard the grand jury testimony of Cheadle's friend Michael Matthews, who testified that Cheadle told him that the injury occurred when Cheadle " went on a mission to rob somebody[.]"
B. The Elias Atkins Murder
According to Michael Matthews's grand jury testimony, in the months following the Kenyon Street robbery, Cheadle became concerned about the possibility that Atkins " might tell." On March 11, 2003, six months after the Kenyon Street incident, Cheadle and Matthews visited Atkins at the apartment of Arlene Morris, where Atkins was staying. During the visit, Cheadle, Matthews, and Atkins conferred in Morris's son's bedroom, while Morris was in another room. Morris testified that, shortly thereafter, she heard shots being fired in her son's room. She looked out into the hallway and saw Matthews fleeing from her son's room with nothing in his hands. After hearing more gunshots coming from her son's room, she hid in a closet, emerging later to find Atkins's body on the floor. Matthews told the grand jury that he saw Cheadle pull out a gun and ran out of the apartment after he heard a shot. Cheadle later told Matthews that he (Cheadle) shot Atkins again after Atkins ran out of the room and that Matthews should " say nothing" about the incident.
C. The Pierre Johnson Murder
On March 14, 2003, Cheadle was arrested for the Atkins murder and thereafter was housed in the same area of the D.C. Jail as his childhood friend Pierre Johnson. Appearing before a grand jury in May 2003, Johnson testified that, while he and Cheadle were incarcerated together, Cheadle confessed to killing Atkins. At approximately
1:30 a.m. on October 10, 2004, Johnson was shot and killed near the corner of 14th and V streets, N.W. George Haynes, another childhood friend of Cheadle, testified that he was standing with some friends outside a gas station nearby when he saw Israel emerge from behind some cars wearing a mask that covered the lower portion of his face. Haynes testified that Johnson started to flee as soon as he spotted Israel, but that Israel fired five or six shots at the fleeing Johnson before running through an alley away from the scene. Haynes testified that he " understood that [Johnson] was going to get killed because he was telling" about Cheadle's involvement in the Atkins murder and that Israel had told him he was going to kill Johnson. Haynes further testified that, after Johnson had been killed, Israel approached Haynes and another man and asked them if they had seen " his work" and clarified that he was referring to the Johnson murder. About a week after Johnson was murdered, Israel told Haynes that men known as " Little MoMo" and " Little Clay" were also to be killed because they were " telling on" Cheadle for the Atkins murder.
D. Obstruction of Justice with Respect to Matthews
During the time period between the Atkins murder and the Johnson murder, while Cheadle and Johnson were still in jail together, Michael Matthews began cooperating with the government. On March 15, 2003, he gave a videotaped statement describing the Atkins shooting, and on March 17, 2003, he testified before the grand jury. In May and June of 2004, Matthews visited Cheadle several times at the D.C. Jail and had conversations with Cheadle that were recorded by the jail. After those jail visits, Matthews went missing, failing to appear to testify in Cheadle's trial, which was scheduled to start in July of 2004 but had to be delayed after Matthews could not be found. At appellants' trial in 2009, Matthews claimed to have no memory of Atkins's murder even though he had given details about it to the grand jury.
A. The Fair Cross-Section Claim
Cheadle filed a pre-trial motion in which he sought an opportunity for discovery on jury selection procedures, arguing that the District's jury selection process " systematically excludes and underrepresents African Americans in violation of both the United States Constitution and the District of Columbia Jury System Act." The trial court denied the motion, a ruling that both appellants challenged in their opening briefs on appeal. The government conceded in its brief that the trial court's summary denial of the motion was improper in light of this court's opinion in Gause v. United States, 6 A.3d 1247 (D.C. 2010) (en banc), and agreed that the case should be remanded for the court to consider the scope of discovery to which appellants were entitled. Accordingly, in November 2012, we remanded the cases to the Superior Court with instructions to " consider and decide the scope of any discovery on jury-selection methods to which appellants are entitled, and . . . [to] entertain any motion appellant(s) may bring challenging the jury selection procedure used in connection with the trial[.]"
While the cases were on remand, and pursuant to the discovery motion, appellants received from the Superior Court Juror Office a spreadsheet containing self-reported race data for 344,241 potential jurors to whom summonses were sent between October 2008 and May 2010. Appellants also had the opportunity to interview Superior Court Juror Officer Suzanne Bailey-Jones. Thereafter, relying on an analysis
by Howard University Professor of Economics Dr. Richard Seltzer, Cheadle moved for a new trial,  alleging that the jury-selection procedure used for his trial violated the Sixth Amendment and the Jury System Act because African Americans were underrepresented in jury venires at the time his petit jury was selected in 2009. In opposing the motion, the government relied on an analysis by statistician Dr. Bernard Siskin.
The experts proposed two benchmarks as points of comparison with the Juror Office data: (1) Figures from the 2010 Census (adjusted to exclude individuals under age eighteen), from which Dr. Seltzer estimated that African Americans comprised slightly more than 47.6 percent of the District's adult population in 2010 and Dr. Siskin estimated that the same group made up 48.89 percent of the District's adult population in that year; and (2) data from the 2005-2009 American Community Survey (an ongoing statistical survey prepared by the Census Bureau that gathers and publishes population information for non-census years), from which the experts estimated that 50.9 percent of the District's adult population was African American in 2009.
Dr. Seltzer's analysis of the Juror Office data focused on the percentage of African Americans among the qualified potential jurors who actually reported for service (" the venires" ). Dr. Seltzer found that, during the weeks between October 1, 2008 and February 2, 2009 -- i.e., the weeks leading up to appellants' trial -- an average of 37.3 percent of the qualified jurors who reported for duty were African American. Dr. Seltzer further found that, on the two days on which appellants' trial jury was selected -- February 2 and 3, 2009 -- 37.4 percent of the qualified jurors who reported for any venire were African American, and that, of the 128 jurors who made up the venires from which appellant's petit jury was selected, 38.6 percent were African American. When these statistics are compared to the 47.6 and 50.9 percent benchmarks Dr. Seltzer described, they suggest that African Americans were underrepresented among qualified jurors who reported for duty. Stated differently, Dr. Seltzer's data suggest that during the four months immediately preceding February 2009, African Americans were underrepresented on the venires by over 10 percentage points (and by as much as 15.6 percentage points based on use of Dr. Seltzer's non-geocoding-adjusted estimate
that only 35.3 percent of qualified reporting jurors during this period were ...