Fortune v. United States, 10–CF–316.

• Decision Date: 17 January 2013
• Docket Number: No. 10–CF–316.,10–CF–316.
• Citation: 59 A.3d 949
• Parties: Tyrone P. FORTUNE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

59 A.3d 949

Tyrone P. FORTUNE, Appellant,

v.UNITED STATES, Appellee.

No. 10–CF–316.

District of Columbia Court of Appeals.

Argued Jan. 18, 2012.

Decided Jan. 17, 2013.

Enid Hinkes for appellant.

Patricia A. Heffernan, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Elizabeth Trosman and Courtney Saleski, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, EASTERLY, Associate Judge, and FARRELL, Senior Judge.

Washington, Chief Judge:

Appellant Tyrone Fortune was convicted of first-degree burglary, attempted robbery, and unlawfully possessing a firearm after a felony conviction. On appeal, he claims that: (1) the trial court committed reversible error by holding a bench trial on the felon-in-possession charge without obtaining a valid waiver of appellant's right to a jury trial; (2) the trial court erred by failing to poll the jury regarding appellant's first-degree burglary and attempted robbery convictions; (3) the trial court violated appellant's constitutional right to be present during all stages of trial by failing to ensure appellant's presence during the portions of voir dire that were conducted at the bench; and (4) the evidence was insufficient to support his attempted robbery conviction. For the reasons stated below, we affirm in part and reverse in part.

I.

Erica Bernard and the appellant, Tyrone Fortune, are cousins. In December 2008, Ms. Bernard was living in an apartment with her wife, Lillian Holland, along with Ms. Holland's children and grandchildren. Fifteen-year-old Janon Washington lived in the apartment upstairs.¹

On December 29, 2008, Mr. Fortune arrived at the Bernard–Holland apartment and asked Ms. Holland whether Ms. Bernard was home. Ms. Holland replied that Ms. Bernard was not home and that she did not know where Ms. Bernard was, but Mr. Fortune did not believe her. He showed Ms. Holland a gun and told her to tell Ms. Bernard that he was looking for her, and that he was “not playing.”

The next day, December 30, 2008, as Ms. Holland was cooking in her kitchen, Janon Washington entered the apartment, followed by Mr. Fortune. Ms. Holland told Mr. Fortune to leave. Mr. Fortune asked where Ms. Bernard was and Ms. Holland again told him to leave. After asking again where Ms. Bernard was, Mr. Fortune walked down the hall to Ms. Bernard's bedroom. Ms. Holland and Ms. Washington followed him.

When Mr. Fortune entered the bedroom, Ms. Bernard was sitting on her bed. Mr. Fortune was “jittery” and high on PCP. In a calm, low, voice, he stated, “What you thought, I was f___in' playing?” and “So you not going to give me no f___ in' money?” Ms. Bernard was afraid of Mr. Fortune, whom she described as having a “real strong demeanor” and who had previously threatened to hit her. While Ms. Holland watched from the doorway, Ms. Bernard repeatedly asked Mr. Fortune, “[H]ow the ‘f___’ did [you] get in my house?” Ms. Holland told Mr. Fortune to leave because he was disrespecting her house. Mr. Fortune refused to leave, said something, drew the same gun that he had shown to Ms. Holland the previous day, and pointed it at Ms. Bernard.

Ms. Bernard walked to the end of her bed. When Mr. Fortune “went to cock the gun,” Ms. Bernard dove at him and the two began to fight. At that point, Ms. Holland took her granddaughter upstairs to Ms. Washington's apartment and left her there. Ms. Holland returned to the bedroom three minutes later, and the fight was still underway. At some point, Mr. Fortune dropped his gun. Ms. Bernard grabbed an aluminum bat and swung it at Mr. Fortune; she was uncertain whether she hit him but thought that she hit the wall. Ms. Holland saw Ms. Bernard hit Mr. Fortune's head; the blow did not stun Mr. Fortune or cause him to bleed. Mr. Fortune threw Ms. Bernard up against a wall and then flipped Ms. Bernard's mattress, stating “that he knew there was some money in there.”

Ms. Holland entered the room carrying a telephone. Mr. Fortune asked “who the f___ she was calling?” Ms. Holland stated that she was going to call the police. Mr. Fortune then stated “I'll be back; I'll be back,” and left the apartment.² Ms. Bernard and Ms. Holland returned to the bedroom, moved the mattress, and located Mr. Fortune's gun in front of the dresser. Ms. Holland told Ms. Bernard not to touch the gun. However, Ms. Bernard unsuccessfully tried to “uncock” the gun so that it would not discharge and then put it on the dresser. She then called the police and reported that: (1) her cousin had come into her house “complaining”; (2) she and her cousin had “gotten into it”; (3) her cousin pulled out a gun and acted like he was going to shoot her; (4) she and her cousin “got into a tussle.”

Mr. Fortune was eventually arrested and charged with, inter alia: first-degree burglary while armed, in violation of D.C.Code §§ 22–801(a), –4502 (2001); attempted robbery while armed, in violation of D.C.Code §§ 22–2802, –4502, –1803 (2001); and unlawful possession of a firearm after having previously been convicted of a felony, in violation of D.C.Code § 22–4503(a)(2) (2001)(a)(2) (2001 & Supp.2008).³

On December 18, 2009, after trial, a jury found Mr. Fortune guilty of the lesser unarmed offenses of first-degree burglary and attempted robbery, and the trial judge found Mr. Fortune guilty of unlawfully possessing a firearm after a felony conviction (felon-in-possession). This appeal followed.

II.

Mr. Fortune first claims that the trial court erred by failing to obtain a valid waiver of his right to a jury trial before holding a bench trial on the felon-in-possession charge. Mr. Fortune did not object to the trial court's failure to obtain a waiver at trial. We have not resolved whether a defendant must satisfy the strictures of plain error review where a trial court fails to fulfill its duty to elicit a waiver of his Sixth Amendment right to a jury trial and, because the outcome of this case is unaffected by the method of review, we need not resolve that issue in this case.⁴

Under the test for plain error, an appellant must show “(1) ‘error,’ (2) that is ‘plain,’ and (3) that affected [his] ‘substantial rights.’ ” Id. (quoting In re D.B., 947 A.2d 443, 450 (D.C.2008)). To show that the error affected a substantial right, the appellant originally “must show ‘a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.’ ” Mozee v. United States, 963 A.2d 151, 164 (D.C.2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “Even if all three of these conditions are met, this court will not reverse unless (4) ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Davis, 984 A.2d at 1259;see also Harris v. United States, 602 A.2d 154, 159 (D.C.1992) (en banc) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)) (“It is well settled that reversal under the plain error doctrine is justified only in exceptional circumstances where ‘a miscarriage of justice would otherwise result.’ ”).

Where a defendant is constitutionally entitled to a jury trial, “the trial shall be by jury, unless the defendant in open court expressly waives trial by jury and requests trial by the court, and the court and the prosecuting officer consent thereto.”D.C.Code § 16–705(a) (2001 & Supp.2003). Moreover, “[c]ases required to be tried by jury shall be so tried unless the defendant in open court orally and in writing waives a jury trial with the approval of the Court and the consent of the prosecuting officer.” Super. Ct.Crim. R. 23(a). A defendant is constitutionally “entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months.” Blanton v. N. Las Vegas, Nev., 489 U.S. 538, 542, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989).

Here, there is no question that Mr. Fortune was entitled to a jury trial on the felon-in-possession charge, which carries a maximum penalty of ten years imprisonment, D.C.Code § 22–4503(b) (2001 & Supp.2008), and there is no question that the trial court did not obtain a written or oral waiver from Mr. Fortune before conducting a bench trial on the charge. Thus, the trial court's error in failing to seek a waiver of the jury trial was plain and obvious at the time of appellant's trial.⁵ The question on appeal is whether the failure to seek the waiver meets the substantial prejudice prong of plain error review and, if so, whether Mr. Fortune has demonstrated how the failure of the trial court to seek an adequate waiver of Mr. Fortune's right to a jury trial affected “the fairness, integrity or public reputation of the judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).

In the exercise of our supervisory power this court has articulated the appropriate procedures for the trial court to follow, pursuant to D.C.Code § 16–705(a) and Super. Ct.Crim. R. 23(a), when presented with a request for waiver of jury trial. See Hawkins v. United States, 385 A.2d 744, 746–47 (D.C.1978); Hicks v. United States, 296 A.2d 615, 617 (D.C.1972); Banks v. United States, 262 A.2d 110, 111 (D.C.1970); (Frederick)Jackson v. United States, 262 A.2d 106, 108–09 (D.C.1970); see also Payne v. United States, 292 A.2d 800, 802 (D.C.1972). The trial court is responsible for conducting “an oral inquiry of the defendant himself in open court, his replies to which indicate that he understands the nature of his right to a jury trial and that he chooses to waive that right.” Hawkins, 385 A.2d at 747. “The trial judge must also assure that such waiver is contained in the record as it occurred....” Banks, 262 A.2d at 111. A...