Lucas v. United States

• Decision Date: 26 May 2011
• Docket Number: Nos. 08–CF–1108,08–CF–1165.,s. 08–CF–1108
• Parties: Jose LUCAS, Appellant,andLexton Pellew, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

20 A.3d 737

Jose LUCAS, Appellant,andLexton Pellew, Appellant,

v.UNITED STATES, Appellee.

Nos. 08–CF–1108

08–CF–1165.

District of Columbia Court of Appeals.

Argued April 1, 2011.Decided May 26, 2011.

Matthew C. Leefer, Boonsboro, MD, appointed by the court, for appellant Lucas.David R. Solomon, with whom Harold I. Glaser, Baltimore, MD, was on the brief, for appellant Pellew.Patricia A. Heffernan, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, and Roy W. McLeese III, Chrisellen Kolb, Timothy Lucas, and Amy Zubrensky, Assistant United States Attorneys, were on the brief, for appellee.Before THOMPSON, Associate Judge, KRAMER, Associate Judge, Retired, ^* and NEBEKER, Senior Judge.

THOMPSON, Associate Judge:

A jury convicted appellants Jose Lucas and Lexton Pellew of several offenses in connection with the robbery of a Georgetown jewelry store in August 2006.¹ On appeal, they argue that an ex parte discussion between the court, the prosecutor, and a government witness's attorney violated their Sixth Amendment rights to counsel and to confront witnesses and their due process right to be present during trial, and also that the evidence was insufficient to support their convictions. Appellant Pellew contends in addition that the government improperly elicited testimony regarding his silence upon arrest and that he was prejudiced by the admission of certain hearsay statements. We affirm.

I.

On August 20, 2006, a group of men entered the jewelry store, ordered two employees and store owner Moshe Motai to the floor, stole jewelry and money, and shot Motai in the abdomen. Two men, Makonnen Romney and Chuka Ezeokoli, were linked to the crime after they were arrested in December 2006 for robbing a jewelry store in New Jersey. Along with another man (Damian Hamilton), Romney and Ezeokoli eventually entered into a plea agreement with the government. Pursuant to that agreement, they testified at appellants' trial, and told the jury that they and appellants, all of whom lived at the time in Brooklyn, New York, had participated in the Georgetown robbery. Romney testified that he and Ezeokoli had planned the robbery for approximately one week to a month and had been to the store on two previous occasions. On the morning of the robbery, Romney drove to meet up with his friend Hamilton, and then moved to the backseat of the car. Hamilton then drove the car a few blocks to Lucas's home to pick up appellants, who were friends of Ezeokoli. Lucas brought a navy-colored nylon bag with him. Hamilton then drove the four to the District without knowing the group's final destination.² During the trip, everyone mostly slept and no discussion took place. After arriving in Georgetown, Romney called Ezeokoli, who had come from Brooklyn by bus, to meet the group. When Ezeokoli arrived, he got inside the car and he and Romney began to have a conversation about the jewelry store. Ezeokoli started talking about a “specific ... casing inside the ... store.” Then, according to Hamilton, “we proceeded to kind of have a conversation about who would go into the store and who would stay outside....” From the conversation, Hamilton deduced that Romney would go into the store and Ezeokoli would be a look-out. Although Hamilton did not know what appellants' roles were, Romney testified that appellants were supposed to go into the store “to suppress the clerks” while he would focus on taking the jewelry. After the brief discussion, Ezeokoli exited the car and Lucas began to pass out items from the bag he brought with him, including a mask and gloves to Romney and a gun to Pellew. Lucas and Pellew then exited the car, while Romney remained for a moment to ensure that Hamilton would stay as their get-away driver.

Events inside the store were described by its employees. Salesman John Demetro testified that a person armed with a gun entered the store and told Demetro to “[g]et on the floor.” Demetro immediately complied, but could tell from the number “of footsteps” that there were multiple robbers in the store. Yahya Alaramrani, the store's jeweler, who had been in the back of the store, walked to the front room, where he was told to get down. Both employees' wallets were taken. Demetro and Alaramrani “heard a crash, like a showcase [had been] broken” and a “gunshot.” Motai was in the back office when he saw “a guy in front of [him] with a gun in his hand, [who] put it in [Motai's] face, and said, ‘Get down.’ ” The gunman then went into the safe, which was located in the office and contained cash and jewelry. When the gunman saw that Motai was watching him, he pulled Motai's shirt over his head. The gunman told Motai, “If you talk too much, I will shoot you right now, and you're never going to breathe again.” The gunman then shot Motai in the stomach.

Romney testified about the conspirators' actions at the store. Ezeokoli, with whom Romney stayed in continual contact by cell phone, “ma[d]e sure that the outside was clear and no one was coming into the store, [and kept] an eye out for officers.” Pellew, who had the gun, made sure that “the clerks were suppressed .... [and] he was just making sure that the clerks didn't move while [Romney] was looking for the keys to get into the case that [Romney] originally planned on going into.” Lucas, according to Romney, was “coming in and out [of] the store just letting [Romney] know that ... everything outside is all right[ ] and ... walking around.” Unable to open the display case, Romney walked to the back of the store where Pellew “was standing by the safe.... So when [Romney] came back there, [Pellew] had passed [him] the tray that was in there, and that's the stuff that [Romney] put all in the bag.” Romney then returned to the jewelry case at the front of the store, broke it using a metal object Pellew handed to him, and took the case's contents. Romney then “heard a shot .... [a]nd ... ran out [of] the store.” After Romney, Lucas, and Pellew returned to the car, Hamilton drove the four back to Brooklyn.

Ezeokoli and Romney identified themselves and Lucas and Pellew from a video recorded from the store's surveillance system.

II.

A.

The government's direct examination of Ezeokoli began on the first day of trial. On the second day of trial, just before the resumption of Ezeokoli's direct examination, Ezeokoli's attorney, Ms. Harvey, asked if she could approach “with ... Government counsel.” When the court agreed, Harvey said she had learned that, after trial ended the previous day, Ezeokoli was transported back to jail in the same vehicle as appellants, in violation of a separation order. Harvey said that appellants did not threaten Ezeokoli, “but ... have made it known to other people at the jail that [Ezeokoli] is testifying as a cooperator.” As a consequence, Harvey said, “[o]ther people at the jail began taunting him and making comments ... [and Ezeokoli] was warned that when he comes back today ... there could be repercussions.” Harvey then requested that Ezeokoli be transported back to the jail alone and “be removed from the jail altogether because it's now been spread to people in different units.”

Appellants now contend that the sidebar discussion between the trial judge, Ezeokoli's attorney, and the prosecutor, outside the presence of appellants and their attorneys, violated their right “to be present at [an] important stage[ ] of trial” and also constituted violations of appellants' Sixth Amendment rights to counsel and to confront witnesses. Appellants assert that had they or their lawyers been present during the ex parte discussion, they would have asked to cross-examine Ezeokoli about potential bias resulting from the threats Harvey described. They also claim that the purported violations constituted structural error and thus require “automatic reversal.” Because appellants' trial counsel were aware that there was going to be an ex parte conference and made no contemporaneous objection, we review these claims only for plain error. See Kaliku v. United States, 994 A.2d 765, 774 (D.C.2010). Thus, we will not reverse unless there was (1) error, (2) that was plain, and (3) that affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Gilchrist v. United States, 954 A.2d 1006, 1014 (D.C.2008) (citation, internal brackets, and internal quotation marks omitted).

Appellants cannot show plain error, because neither the Supreme Court nor this court has ruled that ex parte conferences to address issues of witness safety are per se improper. Moreover, other courts that have considered the issue in similar contexts have ruled that such discussions may be permissible. See, e.g., United States v. Adams, 785 F.2d 917, 920 (11th Cir.1986) (concluding that “an ex parte conference to discuss threats against a witness [was] proper” because “no rights of the defendant [were] threatened,” the substance of the witness's inculpatory testimony was not discussed, and the conference was transcribed); United States v. Arroyo–Angulo, 580 F.2d 1137, 1141–42 (2d Cir.1978) (concluding that holding certain conferences and pre-trial proceedings in camera as a security measure did not violate defendants' rights because the record disclosed “no exclusion of any defendant from any closed proceeding which developed testimony later utilized against him at trial”).

Moreover, even if we assume arguendo that exclusion of appellants and their counsel from the ex parte conference was error and that the error was structural, the relief that appellants seek still would not be warranted, because appellants have not shown that the purported error seriously affected the fairness of their trial or that the fourth prong of the plain error test is otherwise satisfied. See Barrows v. United States, 15 A.3d 673, 678 (D.C.2011) (acknowledging that “if [an error] is structural in nature, the defendant's...