Callaham v. United States

Decision Date03 February 2022
Docket Number19-CF-167
Citation268 A.3d 833
Parties Timothy D. CALLAHAM, Appellant v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Vincent A. Jankoski for appellant.

David P. Saybolt, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, Washington, DC, and Elizabeth Trosman, Assistant United States Attorney, were on the brief, Washington, DC, for appellee.

Before Blackburne-Rigsby, Chief Judge, and Thompson* and Easterly, Associate Judges.

Easterly, Associate Judge:

Timothy Callaham was convicted of robbery after a jury found that he and a companion, who was carrying what appeared to be a gun, approached a man in a striped shirt at the back of a market and walked out with two items that the man in the striped shirt tossed onto the floor. Although the putative complainant did not testify at trial, the incident was captured on surveillance video. The government introduced the video footage as evidence and called as witnesses two detectives who had reviewed the footage, but had not been present for the actual incident. In his brief to this court, Mr. Callaham makes several arguments related to the admission of the video footage and testimony about what the footage showed; he also argues that the jury's verdict was coerced.

Based on the particular facts of this case where (1) the body of evidence was limited and the case boiled down to whether the government had proved that a robbery occurred; (2) the jury struggled with that question and sent the court multiple notes seeking guidance as well as two notes indicating deadlock, prompting a Winters anti-deadlock instruction; (3) the Winterized jury announced a verdict which broke down (i.e., was revealed to be non-unanimous) in polling; and (4) the court gave the jury poll breakdown instruction which, although it contained the language endorsed by this court in Crowder v. United States , 383 A.2d 336, 342 n.11 (D.C. 1978) (recommending language intended to alleviate pressure on a jury to reach a verdict), still echoed the more coercive elements of the Winters anti-deadlock instruction, we conclude that there was a substantial risk that the jury's verdict was coerced. We reverse on this ground, but address to the extent necessary the other issues raised by Mr. Callaham in the event of a retrial.

I. Facts and Procedural History

One early morning in May 2018, Metropolitan Police Department officers responded to a call about a man with a gun at Mellon Market, on the corner of Mellon Street and Martin Luther King Jr. Avenue, SE. Later that morning, the market's owner called MPD to report that someone had entered the store with a gun the night before. MPD Detective1 Taylor Volpe responded to Mellon Market to review the footage captured by the market's thirty-two surveillance cameras. After watching the video, Detective Volpe identified and approached a man in a striped shirt outside the store who appeared to be the same person who had been standing in the back of the market and had tossed items on to the floor. Detective Volpe testified that this person, David Garvin, "didn't have a whole lot to say" about the incident.

Later, MPD officers retrieved the surveillance footage from Mellon Market, as well as closed-circuit television footage from an MPD camera located on the same corner as the market. Another detective assigned to the case, Konrad Olszak, identified Mr. Callaham from the Mellon Market footage. Mr. Callaham was arrested for an unrelated offense at his girlfriend's apartment. On the theory that the Mellon Market surveillance video captured an armed robbery of Mr. Garvin, Mr. Callaham was charged with both that offense,2 and possession of a firearm during the commission of a crime of violence.3 Detective Olszak executed a search warrant at the apartment where Mr. Callaham was arrested and seized three items of evidence: "[a] pair of [white] jeans with multiple cuts on them"; "[a] pair of Nike Air Max 95s"; and "[a] box ... [for a] paint gun." The government also recovered a recording of a jail call made from Mr. Callaham's account, in which he stated that the police would "see ... [him] getting [in and] out [of] the car [seen leaving the scene on surveillance footage] ... [and] say that's aiding and abetting."

Because there were no eyewitnesses,4 the government's case hinged on the Mellon Market and CCTV surveillance footage. Detective Volpe testified that he reviewed surveillance video at Mellon Market the morning after the incident. He told the jury it showed "a robbery" by two men, one holding what looked like an assault rifle and another who he identified as Mr. Callaham, and detailed what he had seen in the footage, over an objection from defense that Detective Volpe was being "ask[ed] ... to testify about his memory of something he has no personal knowledge of." Detective Volpe testified that the two men had approached a third man, whom he identified as Mr. Garvin, in the store; that "Mr. Callaham" picked up a bag and wallet that "Mr. Garvin" dropped; and that "Mr. Callaham" and his companion then left. The government later introduced an approximately seven-and-a-half-minute compilation of clips of the relevant portions of the surveillance footage, again over Mr. Callaham's objection, during Detective Olszak's testimony. The court tried to cabin the detective's testimony somewhat, ruling that he could not "give his own interpretation of things" he saw in the video, but could "point out things to bring things to the jury's attention." Detective Olszak then testified about what he saw in the footage (which had no audio), as it played to the jury.

The day after Detective Olszak's testimony began, the court expressed its concern about the government witnesses "testifying or narrating" what they saw in the video. The court indicated that, based on its understanding of the law, these witnesses "were not supposed to be" doing the latter, but that they could point "out certain things on the video so that the jury could be oriented." Even so, the court wanted to make sure the jurors understood that they "decide[ ] if it's Mr. Callaham ... if in fact he had a gun, if in fact he was walking at this pace ... The detective is pointing it out to them, but they have to see it and be convinced by it." The court thus proposed giving an instruction "explaining that to [the jury]."

The government opposed the instruction, noting that in questioning Detective Olszak, the prosecutor had made clear that the detective was testifying about "his opinion [of what] was in the video," and that this was "really no different than showing photographs or objects to any expert—or I shouldn't even say ‘expert’—any witness. The witness testifies about what they view the thing as, what it appears to them." The court noted, however, that "usually" when the government shows a witness a photograph, they are a percipient witness: "they have seen the knife on the ground, they have seen the gun, or they were there." The court distinguished identification testimony from other testimony and reiterated its concern that the evidence was "just coming out in a very weird way": in a way that might obscure for the jurors that it was "their decision about what actually happened."

Defense counsel also objected to the court's proposal to give an instruction to the jury, but on the ground that it was too little, too late. Arguing that the government had "chose[n] to present the video in the way in which they chose to present it" and that "I don't think that this [damage] can be undone," counsel moved for a mistrial. The court denied the motion for a mistrial, and instructed the jury that morning—before the government resumed its direct examination of Detective Olszak—that the detective's testimony was to "assist you in the identification of suspects in the video as well as to direct you to portions of the exhibits. It is for you to decide who is depicted in the videos, what happened, and how to interpret the video. You are the finders of the facts."

After not quite three days of trial, the jury began deliberating the morning of Tuesday, December 4, 2018.5 At 3:34 p.m., it sent a note containing three questions, followed by another note with a fourth question at 4:34 p.m. All of these questions related to whether the government had proved that a robbery had in fact occurred under the legal framework the trial court had provided: (1) "[The] [i]nstructions refer to the property of a complainant being taken. (Page 14, after #8): If there is no complainant can there be an (‘armed’) robbery?"; (2) "What or who is a complainant[?]"; (3) "If some or all of the property taken belonged to one of ‘robbers’ is it robbery to take it from the ‘victim’[?]"; (4) "The ‘victim’ has not to our knowledge ‘complained.’ Is there a robbery? Must the victim complain?" With both parties’ approval, the court provided responses to these questions.

The jury returned on Monday, December 10, 2018 (the court had been closed for various reasons the preceding Wednesday through Friday). At 10:00 a.m., the jury sent a note indicating deadlock: "Your Honor: We are at an impasse. We have extensively reviewed the instructions and evidence and remain deadlocked." The court denied defense counsel's motion for mistrial, or alternatively for a Winters anti-deadlock instruction,6 and instead granted the government's request to give the "initial instruction to [a] jury that indicates it cannot agree" set forth in Criminal Jury Instructions for the District of Columbia, No. 2.601(I) (5th ed. 2018). The court instructed the jury, in part:

[Y]our note indicates that you've been unable to reach a unanimous decision at this time. My best judgment is that you've been ... deliberating for a total of approximately five hours, which is not unusual in cases such as this. As a result, I am going to ask you to deliberate further in this case and that you keep an open
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