Brisbon v. U.S., No. 02-CF-601.

• Decision Date: 09 October 2008
• Docket Number: No. 04-CO-144.,No. 02-CF-601.,No. 02-CF-777.
• Parties: Ronald BRISBON and Michael Wonson, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

957 A.2d 931

Ronald BRISBON and Michael Wonson, Appellants, v. UNITED STATES, Appellee.

No. 02-CF-601.

No. 02-CF-777.

No. 04-CO-144.

District of Columbia Court of Appeals.

Argued April 18, 2006.

Decided October 9, 2008.

Michael L. Spekter, Washington, for appellant Ronald Brisbon.

Peter H. Meyers, Washington, for appellant Michael Wonson.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and John R. Fisher, Assistant United States Attorney at the time the brief was filed, Elizabeth Trosman, Emory V. Cole, and Joan Draper, Assistant United States Attorneys, were on the brief for appellee.

Before RUIZ, Associate Judge, FARRELL, Associate Judge, Retired,^* and BELSON, Senior Judge.

RUIZ, Associate Judge:

Appellants Ronald Brisbon and Michael Wonson appeal their convictions for first-degree murder, assault with intent to kill and related offenses. Brisbon challenges the admission of his videotaped confession claiming it was involuntary, the denial of his motion for mistrial after an unanticipated month-long delay midway through the trial, and the admission of other crimes evidence. Wonson challenges the denial of his motion for severance as well as the denial of his post-conviction § 23-110 motion claiming ineffective assistance of counsel in that his lawyer did not present an alibi defense promised in opening statement. Both appellants argue that the prosecutor's closing argument improperly shifted the burden of proof to the defense and should have led to mistrial. We conclude that none of Brisbon's claims of error requires reversal of his convictions, which we affirm. Although we consider that the deceptive tactic used by the officers in interrogating Brisbon make the question of voluntariness a close question, we conclude that admission of his videotaped confession was harmless in light of the government's otherwise overwhelming evidence against him. We agree, however, with Wonson's claim that he was prejudiced by the admission of Brisbon's unredacted out of court confessions—which also incriminated Wonson in the charged murders—at their joint trial, and by the trial court's denial of his motion to sever and institute a separate trial against him. We, therefore, reverse Wonson's convictions and remand for a new trial.

I. The Trial

Because the strength of the government's case is dispositive with respect to several of the legal challenges raised by appellants, we recount the evidence presented at trial in detail.

Dana Route's Testimony

Dana Route testified that at the time of the crime, she was "Ronnie T" Brisbon's ex-girlfriend; they remained friends and worked together at C & T Auto Shop in Fort Washington, Maryland. On the evening of Tuesday, May 16, 2000, she went with Brisbon in her Honda to meet "Pretty B" Wonson and two other men at the 4600 block of Hillside Road, S.E., where they bought a black Ford F-150 truck from Michael Cobb for $60. Wonson drove the truck away.

The next day, around 9 p.m. on Wednesday, May 17, 2000, Brisbon and Ms. Route picked up Wonson in Ms. Route's car and drove to where Wonson had parked the truck behind an apartment building on Benning Road. Wonson then went into the woods near the truck and returned to the car. The three went to Brisbon's grandmother's house. While there, Ms. Route saw Brisbon cleaning two rifles with WD-40 while Wonson stood nearby. Appellants each grabbed a gun and Brisbon invited Ms. Route to accompany them. She refused to go, but gave appellants the keys to her car. She recalled that Brisbon was wearing a black ballcap, black T-shirt, and blue jeans. Brisbon and Wonson returned in under twenty-five minutes, guns still in hand. After they came into the house, Brisbon said to Wonson, "I can't believe that your gun jammed."

About fifteen minutes later, all three left the grandmother's house in Ms. Route's car, with one of the appellants concealing the guns in a black shirt. Wonson got out in an alley behind the grandmother's house. Brisbon drove the truck to Prince George's County while Ms. Route followed him in her car. Brisbon parked the truck in a residential neighborhood and set fire to it with a lit napkin. They then went to Brisbon's house in Ms. Route's car for the night.

The following day, Thursday, May 18, 2000, Ms. Route was watching the news on TV while at work when she saw a report "that two people were killed on East Capitol Street" and that "a burnt truck" was suspected as being involved. Ms. Route put two and two together and confronted Brisbon. At first, Brisbon denied killing anyone, but then recounted a version of events that made it fairly obvious that he did. Specifically, Ms. Route testified, Brisbon told her that "Pretty B [Wonson] was looking for somebody," and when he and Brisbon spotted the target, "Pretty B had got out of the truck and fired [bullets] into a crowd." Brisbon told her that he saw a car trying to evade them by making a U-turn, so he shot at that car, and saw that "the person in the car had slumped over the steering wheel." Ms. Route was impeached with her initial statements to the police denying any knowledge of the crime to the police. She said that her parents, who are retired police officers, convinced her to testify after explaining that she could be considered an accessory-after-the-fact or a perjurer if she failed to tell the truth to the grand jury or at trial.

Michael Cobb's Testimony

Michael Cobb, testifying with use of immunity with respect to charges involving the stolen Ford truck, claimed that he sold the Ford F-150 truck to Brisbon. He remembered that appellants arrived in a small car which may have been a Honda. Cobb recalled that Brisbon—whom he knew as "T"—was talking about fighting "them," but didn't know who "them" referred to.¹ When shown a photo array, he recognized Wonson because his hair was styled in dreadlocks and identified both Brisbon and Wonson from the array; he also identified the burned Ford F-150 truck as the one he had sold.

Eyewitnesses to the Murders

Nikita Sweeney testified that she was the one who made the U-turn that caught Brisbon's eye. She had dropped off and was waiting for her friend, murder victim Ivory Harrison, who was looking for her lost purse at Eastern Senior High School at around 11 p.m. on May 17. According to Ms. Sweeney, there was a crowd of about fifteen to twenty people gathered in front of the school, drinking and talking. As she started the U-turn, she saw "a boy" get out of a "black pickup truck" and fire, first into the air, and then into the crowd of people outside the high school. When he then "point[ed] his gun towards" her, she hid under her dashboard. As she opened her eyes, Ivory Harrison had gotten back in the car, but both young women decided to crawl out of the car's passenger side door to escape the shots that were still being fired at their car. Almost as soon as they started, however, both were shot. They tried to run to safety; Ms. Harrison was too injured to run, but Ms. Sweeney, who had been shot in the left leg, made it to a group home across the street, from where she was taken to D.C. General and hospitalized for a month. Ms. Sweeney could not say how many shots were fired, but she thought they came from an automatic gun that looked like a rifle, and that the shots had been fired in a steady stream without any break. She was not able to pick her assailant out of a photo array,² but she was certain that he was a black male dressed in "all black," including a "black baseball cap," and that he had gotten out from the passenger side of the black pickup truck. She also said that there was only one person shooting and that the shooter had only one gun.

Seventeen-year-old Jameice Phillips testified that she was around Eastern High that night talking in a group of about thirty people, when a "black pickup truck pulled up." She saw the passenger come out of the truck,³ and fire "one big loud gunshot," "a loud boom" and then "a lot of other gunshots." Her friend "Peabo," Charles Jackson, was one of the persons shot dead. According to Ms. Phillips, there was only one shooter, who was wearing a bandanna or scarf across the forehead; she did not see the driver. She identified Brisbon, whom she knew from her neighborhood for about five years as "Ronnie T," as the shooter.

Metro Transit Police Officer Eric Croom was patrolling the area, which is near the Stadium-Armory Metro station, when he heard gunshots. At what he estimated to be 11:25 p.m. he saw through his rear view mirror a car stopped horizontally in the middle of the street about a block and a half away, then saw the flash of gunshots coming from the driver's side. He immediately radioed the Metropolitan Police and began assisting the victims. He saw Ms. Harrison lying on the ground by Ms. Sweeney's car, and found Mr. Jackson, bleeding from the head, without a pulse. He could not describe the person who fired the shots, but thought there was only one shooter, because he saw a "series" of flashes from what appeared to be a single gun muzzle.

Experts and Physical Evidence

Metropolitan Police Department Firearms Examiner Michael Mulderig took the stand as a firearms expert. He testified that on May 31 he began his examination of the 45 shell casings (caliber of 7.62 mm.) that were recovered outside the school. He concluded that they could have been fired from an assault rifle, such as an AK-47, and that the shell casings had been fired from two different rifles. Corroborating Ms. Route's testimony that Brisbon said to Wonson, "I can't believe your gun jammed," he testified that one cartridge found at the murder scene "was attempted to be fired but did not fire."

James Sullivan, a fire investigation expert, testified that the Ford F-150 truck was set on fire with a "lit ordinary combustible" on the front passenger seat, which also corroborated Ms. Route's testimony.

Police...