Mitchell v. U.S., 06-CF-418.

• Decision Date: 31 December 2009
• Docket Number: No. 06-CF-418.,No. 06-CF-384.,06-CF-418.,06-CF-384.
• Citation: 985 A.2d 1125
• Parties: Quincey D. MITCHELL & Jerome P. Stroud, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

985 A.2d 1125

Quincey D. MITCHELL & Jerome P. Stroud, Appellants, v. UNITED STATES, Appellee.

No. 06-CF-418.

No. 06-CF-384.

District of Columbia Court of Appeals.

Argued January 8, 2009.

Decided December 31, 2009.

Mindy A. Daniels, for appellant Quincey D. Mitchell.

Dennis M. Hart, for appellant Jerome P. Stroud.

Suzanne G. Curt, Assistant United States Attorney, with whom Jeffery A. Taylor, United States Attorney at the time the brief was filed, and Elizabeth Trosman and Amanda Haines, Assistant United States Attorneys, were on the brief for appellee.

Before RUIZ, KRAMER and BLACKBURNE-RIGSBY, Associate Judges.

BLACKBURNE-RIGSBY, Associate Judge:

This case arises from a July 11, 2004 shooting that was carried out in retaliation for the November 2003 shooting of former Georgetown University basketball player, Victor Paige. On appeal, appellants Quincey D. Mitchell and Jerome P. Stroud, who were convicted of numerous offenses¹ related to the retaliatory shooting argue that: (1) the trial court erred in denying Mitchell's motion to suppress statements he made to the police; (2) the evidence was insufficient to sustain Stroud's convictions for first-degree murder and aggravated assault,² and all of Mitchell's convictions; (3) the trial court erred in denying Mitchell's motion to sever; and (4) the trial court erred in admitting evidence of Stroud's threats against government witnesses for which he was not charged. We affirm.

I.

The series of events in this case began around 6 p.m. on July 10, 2004 when Linda Thomas received a phone call from a neighbor telling her that the light was on in her black Chevy Tahoe. Ms. Thomas looked outside at her car and saw a man bending down inside the driver's side. There was another man standing in the driver's door of a tan car next to the Tahoe. Both men were black and both were wearing white t-shirts, and one man had "twisters" in his hair. After the man in Ms. Thomas' Tahoe started the car, he got in and drove off with the tan car following.

Around 1 a.m. on July 11, 2004, a group of friends including Michael Simms, Antwain Holroyd, Dwayne Carter, Michael Craig, and Jeffrey Smith, were hanging out in the parking lot of the Parkchester Apartments in Southeast Washington, D.C. As they were talking, Mr. Smith saw two people come from behind the trash dumpsters on the other end of the parking lot. Mr. Smith did not initially recognize the two people, but eventually saw that they were appellants, Mitchell and Stroud. As Mitchell raised his hand, Mr. Smith saw that he was holding a gun and Mr. Smith began to run. Mr. Carter's recollection is similar to Mr. Smith's, and he too recognized appellants Mitchell and Stroud. As the appellants emerged from behind the dumpster, they opened fire on the group of men. Mr. Smith was shot in the back of the leg, and Mr. Carter was shot both in the head and the hand. Mr. Holroyd was shot in the back of the head and died where he fell, near Mr. Carter. As Mr. Craig ran, he was shot in the back of the arm and his shoulder. He fell, but got up and continued to run. Mr. Simms was shot in the torso and died a few hours later from the injury.

Metropolitan Police Department Officer William Stokes heard the shots and responded to the scene. As Officer Stokes approached in his police vehicle, he saw two men run out of a driveway and get into a dark Chevrolet SUV with Maryland tags. He further testified that he assumed the men were fleeing from the gunshots, and that when he pulled his police car next to the SUV, the SUV took off at high speed. He pursued the SUV, but saw another individual emerge and begin shooting at the SUV. Officer Stokes stopped his car and saw a victim laying on the ground. He radioed for backup and assisted the victim instead of pursuing the SUV or chasing the other gunman.

Mitchell was arrested two days after the shooting. While en route to the homicide branch in the police cruiser, he asked why he was arrested. After FBI Special Agent Dan Sparks told him that he was under arrest for homicide, Mitchell asked, "[W]hen I'mma see my lawyer and my mother[?]" Agent Sparks instructed Mitchell to refrain from speaking until they reached the homicide branch. Mitchell testified that after they reached the homicide branch that he asked again, "when I'mma see my lawyer and my mother." Apparently, upon arriving at the station, the officers who rode in the police cruiser did not tell the officers at the station that Mitchell had asked when he could see his lawyer (and his mother).

At the Metropolitan Police Department station, about an hour after the arrest, Detective Kaufman read Mitchell his Miranda³ rights from a PD-47 card⁴ in the presence of Detective Robert Alder. Mitchell answered "yes" to each question, including that he was willing to answer questions without an attorney present. During his eight hours at the homicide branch — four of which were spent speaking with the detectives — Mitchell gave three different versions of his involvement and presence at the scene of the shooting. In the first version, Mitchell claimed that stayed in the car and heard gun shots shortly after Stroud and a third person exited the car and entered the parking lot where the shooting occurred. In his third version, Mitchell told Detectives Alder and Kaufman that he and Stroud "got out the vehicle and walked to the parking lot". After giving the third version admitting his presence at the scene, Mitchell agreed to make a videotaped statement. However, on the videotaped statement, Mitchell stated that while he exited the truck with Stroud and entered the parking lot, Stroud "pulled out the gun and started shooting." During the entire time spent at the homicide branch after signing the rights waiver, Mitchell did not request an attorney.

The government's theory at trial was that Stroud, who was Mr. Paige's cousin, engaged appellant Mitchell and Gerard Williams⁵ to help him avenge the November 2003 attack on Mr. Paige. The government presented several witnesses to corroborate its theory. Kecia Simms, Michael Simms' mother, testified that on the day of the November 2003 attack on Mr. Paige, she had seen her son's friends, Antoine Holroyd, Jeffrey Smith, and Dewayne Thomas, in a car leaving the scene of Victor Paige's shooting. Ms. Thomas testified that she saw two men who resembled the appellants stealing her black Chevy Tahoe on the evening of the July 2004 shooting. Seteria Johnson testified that she had a relationship with Stroud and that on the night of the July 2004 shooting, Stroud had come to her apartment and asked to hide a gun in her room. Ms. Johnson also testified that before trial, she had been threatened by a person named DeShawn Glover, who told her not to appear in court to testify against Stroud.

II.

A. Motion to Suppress

Prior to trial, Mitchell filed a motion to suppress his statements made to the police in which he admitted his presence at the scene of the shooting. Mitchell argued for suppression on the grounds that he was a juvenile at the time of his arrest, the statements were involuntary, and he was denied his request for counsel.

"In reviewing the denial of a motion to suppress evidence, this court accepts the trial court's factual findings unless they are clearly erroneous or not supported by the record." Crawford v. United States, 932 A.2d 1147, 1153 (D.C. 2007) (citing Ball v. United States, 803 A.2d 971, 974 (D.C.2002)). We must ensure that there was a substantial basis to support the trial court's legal conclusion that there was no constitutional violation. Id. (citing Brown v. Untied States, 590 A.2d 1008, 1020 (D.C.1991)). The trial court's legal conclusions are reviewed de novo. In re G.E., 879 A.2d 672, 677 (D.C. 2005).

Here, both appellant Mitchell and Detective Alder testified at the suppression hearing. The trial court found Detective Alder's "testimony to be significantly more credible than [Mitchell's]" as to what was actually said and determined that Mitchell had asked when he could see his attorney. The trial court concluded that Mitchell's statement "[W]hen I'mma see my lawyer and my mother[?]" was "equivocal," and that because the statement was equivocal, it did not constitute a request for counsel. Additionally, the trial court found that Mitchell had been read his Miranda rights at the police station prior to the commencement of any interrogation and that he had signed the PD-47 card. The court found that Mitchell "understood his rights and he wanted to talk." Based on these findings, the trial court ruled that Mitchell's statements were not taken in violation of his Fifth Amendment right to counsel and were voluntary.

The record supports the trial court's findings that appellant Mitchell did not request an attorney but merely asked when he would see his attorney. We have recognized the deference owed to a trial court's credibility determinations. Here, the trial court made clear that it credited Detective Alder's testimony over Mitchell's as to what was said because Mitchell's testimony was uncertain and "went back and forth between saying he asked for his attorney and asked when he could see his attorney." The trial court's finding is supported by comparing Mitchell's testimony on direct, "I asked them, man, when I'mma see my lawyer," and his testimony on cross-examination "I asked for an attorney."

The Supreme Court has held that to invoke the Fifth Amendment right to counsel, the accused must make "an unambiguous or unequivocal request for counsel." Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (finding that "`maybe I should talk to a lawyer' was not sufficiently clear to establish that [defendant] had invoked his right to counsel"). This means that an accused "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id...