Fitzgerald v. United States

• Decision Date: 04 June 2020
• Docket Number: No. 18-CF-432,18-CF-432
• Citation: 228 A.3d 429
• Parties: Lori FITZGERALD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

228 A.3d 429

Lori FITZGERALD, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-432

District of Columbia Court of Appeals.

Argued January 29, 2020

Decided June 4, 2020

Gregory M. Lipper for appellant.

Eric Hansford, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Michael McCarthy, and Gregory Rosen, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, and Glickman and McLeese, Associate Judges.

Blackburne-Rigsby, Chief Judge:

Appellant Lori Fitzgerald, whose legal name is now Zakiya Ahmed, was convicted by a jury of several offenses arising out of a home invasion of the apartment of complainant Hunion Henderson. On appeal, appellant raises an evidentiary sufficiency challenge to her firearm-related and robbery convictions and an instructional challenge to her obstruction of justice conviction. For the reasons explained below, we reverse the obstruction of justice conviction and affirm the other convictions.

I. Factual and Procedural Background

A. The Charges

On July 11, 2017, appellant was indicted for multiple offenses arising out of a January 5, 2017, incident at the home of Henderson. She was tried by a jury in December 2017. Appellant had been indicted on seventeen counts, but, soon after opening arguments, the government dismissed the six counts that had been based on the testimony of cooperating witness Larry Kimbrugh, whom the government decided it would no longer sponsor due to inconsistencies in his statements that emerged just before and immediately after the start of trial.¹ Thus, with the exception of an obstruction of justice count, which had no complaining witness, Henderson was the complaining witness for the remaining counts, which included several violent offenses and several charges of Possession of a Firearm during a Crime of Violence ("PFCV") pertaining to the predicate offenses:

• Count 1 – Conspiracy to Commit Burglary ( D.C. Code §§ 22-1805a, -801, -4502) (2012 Repl. & 2019 Supp.)

• Count 2 – Kidnapping while Armed ( D.C. Code §§ 22-2001, - 4502 ) (2019 Supp.)

• Count 3 – PFCV as to Kidnapping while Armed ( D.C. Code § 22-4504(b) ) (2019 Supp.)

• Count 6 – First Degree Burglary while Armed ( D.C. Code §§ 22-801(a), - 4502 ) (2019 Supp.)

• Count 7 – PFCV as to First Degree Burglary while Armed ( D.C. Code § 22-4504(b) ) (2019 Supp.)

• Count 8 – Robbery while Armed ( D.C. Code §§ 22-2801, - 4502 ) (2019 Supp.)

• Count 9 – PFCV as to Robbery while Armed ( D.C. Code § 22-4504(b) ) (2019 Supp.)

• Count 12 – Assault with a dangerous weapon ("ADW") ( D.C. Code § 22-402 ) (2019 Supp.)

• Count 13 – PFCV as to ADW ( D.C. Code § 22-4504(b) ) (2019 Supp.)

• Count 16 – Threats to Injure or Kidnap ( D.C. Code § 22-1810 ) (2019 Supp.)

• Count 17 – Obstruction of Justice ( D.C. Code § 22-722(a)(4) ) (2019 Supp.)

B. The Evidence at Trial

The government's main witness at trial was Henderson, who testified as follows. He was fifty-four years old, had several physical and mental health issues, and had been addicted to crack cocaine for decades. Appellant was a fellow drug user whom Henderson had met and gotten to know in the drug scene; Henderson considered appellant, who was older than him, to be like an aunt to him and referred to her as "auntie." During 2016, while Henderson was in and out of rehab, his health was poor, and he needed assistance at home, he invited appellant and her boyfriend, known as "Fanbone," to live with him and take care of him. At first, appellant treated Henderson well; she would cook for him, help him pay bills, and negotiate with people to whom he owed money. However, appellant and Fanbone then began bringing other drug users to Henderson's apartment, and using and selling drugs – including crack and heroin – in the apartment. Although Henderson did not like the drug traffic in his home, particularly because he was in public housing, he acquiesced. As Henderson's relationship with appellant deteriorated and he came to feel that appellant did not care about him anymore, Henderson told appellant and Fanbone that he was afraid of them and uncomfortable with what was happening in the apartment, and he asked them to move out several times, but they refused to do so.

At some point, Henderson talked with his family about the problems he was having at his apartment due to appellant and Fanbone's behavior, and his brother connected him with the police. Henderson spoke to Sergeant Curt Sloan of the Metropolitan Police Department ("MPD"), telling Sergeant Sloan that there were drugs in his apartment, as well as guns that an acquaintance of appellant had brought in. Henderson then told appellant that his brother had spoken to the police and that the police would be coming to the apartment; Henderson recommended that appellant and Fanbone leave, but they refused to do so.

On the evening of January 4, 2017, MPD officers, including Sergeant Sloan, arrived at the apartment with a search warrant. The officers searched the premises and detained the six individuals who were inside the apartment: Henderson, appellant, Fanbone, Kimbrugh, and two others. Some of the officers took appellant and the others outside, while Henderson remained in the apartment with Sergeant Sloan. While she was outside, appellant called Henderson's phone; Henderson answered and gave the phone to Sergeant Sloan, who told appellant not to come back to the apartment.

In the very early morning hours of January 5, 2017, appellant and Henderson exchanged several text messages, in which appellant told Henderson that she needed to return to the apartment to retrieve some of her belongings, including her "papers" because she was meeting with her "case manager" the next day; her clothes and shoes; and Fanbone's "black bank card." Henderson responded by text message that appellant could not return because the police were watching his place and he did not want to get in trouble. Appellant replied, "Let's do it your way. As long as you give me our stuff, there won't be a problem"; she also sent messages saying: "I'm out in the street," "I don't mean you harm," and "I just want my things." At one point, appellant asked if she should send "Rochelle or India or [her] protector." Rochelle Gordon was Henderson's neighbor and a friend of appellant's, and India Frazier was a friend of appellant's whom Henderson knew, though Henderson did not know who the "protector" was. Henderson agreed to let Gordon into the apartment to retrieve appellant's things, but she never came.

During the time that he was exchanging text messages with appellant, Henderson had let Kimbrugh into the apartment; when Kimbrugh began getting high, Henderson told Kimbrugh to leave and he did. Kimbrugh later came back and banged on the door, saying he wanted his things, and, as Henderson opened the door, three people pushed their way into the apartment: Kimbrugh, Frazier, and Steve Wilson – an acquaintance whom Henderson had met four days earlier when appellant and Fanbone had invited him to a New Year's get-together at the apartment. Wilson hit Henderson with a gun, pointed the gun at him and ordered him to the ground, stomped on his head, kicked him in his side, threatened to shoot him, called him a "fa**ot," and accused him of "snitch[ing] on [his] friend." Frazier asked Henderson, "[W]hy did you do that" when "[t]hey took care of [you]?" – without specifying to whom "they" referred – and also kicked him.

While Henderson was on the ground, Wilson covered Henderson's head with clothes. Although Henderson's view was mostly obstructed, he observed Wilson, Frazier, and Kimbrugh putting items from the apartment into laundry bags and taking the bags and other things out of the apartment. Henderson listed several items that were taken: (1) some groceries from the refrigerator; (2) two TVs, one of which had been brought in by appellant and Fanbone, and the other of which had been brought in by another acquaintance; (3) some "money," which Henderson then clarified was a "black bank card" that belonged to Fanbone and that Henderson had put in his own pocket; (4) "a chain that didn't belong to me [Henderson]" but "belong[ed] to family members"; (6) "a ring that belonged to me [Henderson]"; and (5) other unspecified "stuff."

About ten minutes after Kimbrugh, Frazier, and Wilson had entered, appellant entered the apartment. Appellant leaned over and quietly spoke into Henderson's ear, calling him a "snitch" and saying, "You thought I wouldn't be able to get in. You thought you had got away," as well as something like, "You thought that you were going to get away with this, and you're going to pay for this." Then all four individuals left and Henderson called the police.

On cross-examination, Henderson admitted that he had testified before the grand jury that appellant, upon entering the apartment after Wilson and Frazier, said to them, in reference to Henderson: "Don't do nothing to him yet. Don't do nothing to him." Henderson also admitted to inaccuracies in his grand jury testimony. Before the grand jury, he had testified that the things that were taken during the incident belonged to him; however, on cross, he admitted that several items belonged to appellant, Fanbone, or others – including both TVs, the bank card, and some of the groceries in the fridge. He also appeared to admit that the chain that was taken actually belonged to Fanbone. When defense counsel pressed Henderson regarding his ownership of the items taken from the apartment, he stated that he "considers" "[e]verything in the apartment" to be his, "whether it's [his] or not."

After the government rested,² the defense called Rochelle Gordon, who testified that appellant contacted her in the early morning hours of January 5 and asked her to retrieve appellant's clothes and belongings from Henderson's apartment. Gordon testified that appellant showed her text messages in which Henderson requested that Gordon retrieve ...