Ashby v. United States, 011019 DCCA, 14-CF-414

Docket Nº:14-CF-414, 14-CF-424, 14-CF-669
Opinion Judge:Nebeker, Senior Judge.
Party Name:Paul Anthony Ashby, Keith A. Logan, and Merle Vernon Watson, Appellants, v. United States, Appellee.
Attorney:Alice Wang, with whom Samia Fam was on the brief, for appellant Paul Ashby. Thomas T. Heslep for appellant Keith Logan. Margaret M. Cassidy for appellant Merle Watson. James A. Ewing, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief wa...
Judge Panel:Before Blackburne-Rigsby, Chief Judge, Fisher, Associate Judge, and Nebeker, Senior Judge.
Case Date:January 10, 2019
 
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Paul Anthony Ashby, Keith A. Logan, and Merle Vernon Watson, Appellants,

v.

United States, Appellee.

Nos. 14-CF-414, 14-CF-424, 14-CF-669

Court of Appeals of The District of Columbia

January 10, 2019

Argued December 19, 2016

Appeals from the Superior Court of the District of Columbia (CF1-3069-10, CF1-21619-10, and CF1-23411-11) (Hon. Herbert B. Dixon, Jr., Trial Judge)

Alice Wang, with whom Samia Fam was on the brief, for appellant Paul Ashby.

Thomas T. Heslep for appellant Keith Logan.

Margaret M. Cassidy for appellant Merle Watson.

James A. Ewing, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Michael Liebman, and Erik Kenerson, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, [*] Fisher, Associate Judge, and Nebeker, Senior Judge.

Nebeker, Senior Judge.

Appellants Paul Ashby, Keith Logan, and Merle Watson appeal, together and separately, various convictions related to the kidnapping and murder of Carnell Bolden and the shooting of Danielle Daniels on December 30, 2009. The three were jointly tried before a jury in July and August of 2013, and were found guilty of a majority of the charged offenses. Given the factual and legal complexities, the number of issues, and the length of this opinion, we set forth a table of contents below.

Table of Contents

I. Factual Background

II. Analysis

A. Alleged Brady Violations and Sanctions

B. Motions to Suppress Evidence

i. The Search of 70 W Street, N.W.

ii. Ashby's Cell phone Records

C. Admission of Out-of-Court Statements

i. Statements Against Penal Interest

ii. The State-of-Mind Exception

iii. Denial of Severance

D. Winfield Defense and Bias Cross-Examination

i. Winfield Defense ii. Bias Cross-Examination

E. Sufficiency of the Evidence for the Daniels Shooting Conviction

F. The Pinkerton Instruction

G. The Prosecutor's Closing Argument

H. Logan's Unannounced PFCV Conviction

I. Merger of Convictions

III. Conclusion

I. Factual Background

On December 30, 2009, the victims, Carnell Bolden and his girlfriend Danielle Daniels, drove to W Street in the northwest quadrant of the District of Columbia. At approximately six in the evening, Ms. Daniels dropped off Mr. Bolden so he could briefly visit some friends.

Appellant Logan and his girlfriend, Queen Williams, lived on the top two floors of a house located at 70 W Street, N.W., near the area where Ms. Daniels dropped off Mr. Bolden. Logan's uncle, Bruce Adams, was the owner of the home. Derrick Hill had rented the basement apartment, paying rent to Logan, from February or March until November 2009. Mr. Hill and Mr. Bolden were good friends, and Mr. Bolden supplied crack cocaine for Mr. Hill to sell from the basement apartment. Logan was aware of this arrangement, and had purchased cocaine from Mr. Bolden through Mr. Hill in the past. Logan also sold heroin out of the top two floors, and used the drug himself.

After Mr. Bolden exited the car, Ms. Daniels waited in the car. When Mr. Bolden did not return within ten minutes, as Ms. Daniels had anticipated, she began calling his cell phone. When she received no response, she got out of the car and spent approximately five to ten minutes searching the length of the street, all the while attempting to call Mr. Bolden, and saw no one outside. Ms. Daniels then got back into the driver's seat of her car and shut the door.

Close to 7:00 p.m., Ms. Daniels saw in the driver's side mirror that someone was approaching the driver's side of the car from behind. This "dark figure" in a black hooded sweatshirt "put a gun up to the window and just started shooting." After the assailant stopped shooting and fled, Ms. Daniels exited her car, called for help, and, within five minutes, called 911. Her 911 call was placed at about 7:15 p.m. A neighbor on W Street was looking out her window and saw a "man in dark clothing with a hood" run down the street, and she also called 911 in response to gunshots. Ms. Daniels was subsequently able to receive medical attention and survived the shooting. However, she was hospitalized for three months and underwent several surgeries; at the time of trial, she suffered from nerve damage and loss of use of her left hand.

On the morning of December 31, 2009, a Metropolitan Police Department ("MPD") officer found Mr. Bolden's body twenty-five feet off the side of the road near the 3000 block of Park Drive, S.E.; it appeared to have been dragged there. The cause of Mr. Bolden's death was determined to be two gunshot wounds to the face that appeared to have been fired at close range.1 Duct tape covered Mr. Bolden's mouth and eyes, his pants were pulled down, and his feet were bound by duct tape, packing tape, and electrical cords "consistent with" having been pulled from a television set. Mr. Bolden also had multiple injuries, including bruising on his left eye, his nose, right cheek, and upper lip; hemorrhaging was also found under the right side of his scalp.

After searching the 70 W Street house, discussed further in section II.B.i below, the police found substantial evidence establishing that Mr. Bolden had been murdered there. Mr. Bolden's blood was found on a jacket that Mr. Hill gave to the police. A piece of tape found on Mr. Bolden's body was a "fracture match" with a roll found in the basement, showing that the piece of tape had been torn from that roll. A television set missing a cord like the one found on Mr. Bolden's body was also recovered. Additionally, Mr. Bolden's blood was found in a car which Logan had access to; it had been driven by Ms. Williams and was found abandoned about five blocks from the W Street house on January 8, 2010, days after the murder. A neighbor also testified that the car had been parked around 70 W Street in the past.

Substantial evidence also linked appellants to the murder. Appellants Ashby and Watson had been seen at and around the 70 W Street house in the weeks leading up to the murder. Ashby and Watson had a "close" relationship, and, on December 24, 2009, Watson, Ashby, and Logan were together for at least forty-five minutes at the 70 W Street house. Logan had called Mr. Bolden twice on December 30, 2009, at 4:19 p.m. and 5:47 p.m. Watson also called 911 from his phone at 6:44 the evening of December 30, 2009, about thirty minutes before Ms. Daniels was shot, to falsely report the shooting of an undercover police officer.2Phone records and location data regarding Ashby's call activity, discussed in section II.B.ii below, revealed that Ashby had called Watson five times between 12:59 p.m. and 6:27 p.m. the night of the shooting and murder, from the vicinity of the crime scene, and an expert testified that, based on the progression of phone calls, Ashby's phone had traveled south, towards the area where Mr. Bolden's body was found.

In addition, John Carrington, an acquaintance of Mr. Bolden, stated that, in November 2009, weeks before Mr. Bolden's murder, Logan suggested they "rob and kill" Mr. Bolden. Mr. Carrington turned down Logan's proposition, telling him "hell no." Melvin Thomas, another acquaintance, stated that, after the murder, Ashby approached him in a CVS parking lot and admitted that he and his co-appellants had killed Mr. Bolden and placed his body in the southeast quadrant of the city.3 Mr. Thomas and Ashby spoke again later in 2010, when they were both in the D.C. jail library. Ashby expressed that he was not worried about the case because all of the evidence was "pointing at" Logan, except for Ashby's phone, which was in police custody at the time.4

Following the MPD's investigation into the murder and the shooting, Appellants were charged with five crimes related to the killing of Mr. Bolden: (1) conspiracy to kidnap and rob, in violation of D.C. Code §§ 22-1805a, -2001, and -2801;

(2) first-degree premeditated murder while armed and felony murder while armed, in violation of D.C. Code §§ 22-2101 and -4502; and

(3) kidnapping while armed, in violation of D.C. Code §§ 22-2001 and -4502, and robbery while armed, in violation of D.C. Code §§ 22-2801 and -4502.

They were also charged with three crimes related to the shooting of Ms. Daniels: (1) assault with intent to kill while armed, in violation of D.C. Code §§ 22-401 and -4502 ("AWIK");

(2) aggravated assault while armed, in violation of D.C. Code §§ 22-404.01 and -4502; and

(3) mayhem while armed in violation of D.C. Code §§ 22-406 and -4502.

They were...

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