Perez v. U.S.

• Decision Date: 26 March 2009
• Docket Number: No. 06-CO-1170.,No. 06-CO-341.,No. 02-CO-1231.,No. 02-CO-1205.,No. 06-CO-1563.,No. 99-CF-226.,No. 01-CO-1019.,No. 99-CF-212.,No. 99-CF-107.,No. 99-CF-257.,No. 02-CO-1253.,No. 02-CO-1385.,No. 02-CO-1242.,No. 06-CO-1164.,No. 99-CF-207.,99-CF-107.,02-CO-1242.,06-CO-341.,99-CF-207.,02-CO-1205.,99-CF-212.,02-CO-1385.,06-CO-1164.,99-CF-226.,02-CO-1253.,06-CO-1563.,99-CF-257.,01-CO-1019.,02-CO-1231.,06-CO-1170.
• Citation: 968 A.2d 39
• Parties: Luis Adonay PÉREZ, (F-4374-98) Carlos Alberto Robles-Benevides, (F-2001-98) Santos Felipe Bonilla, (F-2332-98) José Roberto Salamanca, (F-4375-98) and Oscar Villatoro, Appellants, (F-2940-98) v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

968 A.2d 39

Luis Adonay PÉREZ, (F-4374-98) Carlos Alberto Robles-Benevides, (F-2001-98) Santos Felipe Bonilla, (F-2332-98) José Roberto Salamanca, (F-4375-98) and Oscar Villatoro, Appellants, (F-2940-98) v.UNITED STATES, Appellee.

No. 99-CF-107.

No. 02-CO-1242.

No. 06-CO-341.

No. 99-CF-207.

No. 02-CO-1205.

No. 99-CF-212.

No. 02-CO-1385.

No. 06-CO-1164.

No. 99-CF-226.

No. 02-CO-1253.

No. 06-CO-1563.

No. 99-CF-257.

No. 01-CO-1019.

No. 02-CO-1231.

No. 06-CO-1170.

District of Columbia Court of Appeals.

Argued February 8, 2005.

Resubmitted February 24, 2009.^*

Decided March 26, 2009.

Kenneth H. Rosenau, Washington, appointed by the court, for appellantLuis Adonay Pérez.

M. Elizabeth Kent, Washington, appointed by the court, for appellantCarlos A. Robles-Benevides.

Robert S. Becker, Washington, appointed by the court, for appellantSantos Felipe Bonilla.

Paul J. Riley, appointed by the court, for appellantJosé Roberto Salamanca.

Jenifer Wicks, Washington, for appellantOscar Villatoro.

David B. Goodhand, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and John R. Fisher, Assistant United States Attorney at the time the brief was filed, Elizabeth Trosman, Anthony Asuncion, James S. Sweeney and David C. Woll, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Anthony Asuncion, James S. Sweeney, and Florence Pan, Assistant United States Attorneys, filed a supplemental brief for appellee.

Before WASHINGTON, Chief Judge,^**RUIZ, Associate Judge, and KING, Senior Judge.

Ruiz, Associate Judge:

The five coappellants in this case, Luis A. Pérez, Carlos A. Robles-Benevides, Santos F. Bonilla, José R. Salamanca, and Oscar Villatoro, challenge their convictions arising out of a brutal murder and various assaults, in which an unidentified homeless man was beaten and a passerby who intervened to stop the beating of the homeless man was beaten and stabbed to death.A second passerby who then intervened to stop the assault on the first passerby was also assaulted.An eyewitness was later threatened and assaulted in an effort to intimidate her into not testifying.

Appellants challenge their convictions on multiple grounds, which can be grouped into the following eight claims: (1) the government abused the grand jury system to intimidate alleged eyewitnesses and suborned perjured testimony favorable to the government; (2) the government violated their right to due process by not disclosing to defense counsel evidence and witnesses that could have undermined the credibility of government witnesses; (3)the trial court improperly admitted hearsay statements in a joint trial under the exception for statements against penal interest; (4)the trial court should have granted their requests for severance because they were prejudiced by being tried jointly; (5)the prosecutor engaged in improper argument by alluding to the fact that the defendants would not testify, by using inflammatory language, and by making references to the defendants' gang membership; (6)the trial court improperly refused to grant a mistrial because some of the jurors were biased against them; (7)the trial court improperly denied the § 23-110 motions of two of the appellants, whose counsel, they claim, were constitutionally ineffective; and (8) the aiding and abetting instruction we held erroneous in Wilson-Bey, supra note *, 903 A.2d at 818, was given to the jury in their trial and tainted their convictions for first-degree murder.We agree that the erroneous aiding and abetting instruction constituted plain error and reverse the first-degree murder convictions of appellants Robles-Benevides, Bonilla and Villatoro, and remand to the trial court with instructions to vacate their first-degree murder convictions and enter convictions and resentence them for murder in the second degree.On remand, the trial court should consider whether Pérez's conviction for first-degree murder while armed based on aiding and abetting liability should be permitted to stand.We conclude that appellants' other challenges, singly and in the aggregate, do not require reversal, and we affirm their remaining convictions.

I.The Evidence Presented at Trial

Based on the testimony of four eyewitnesses,¹ each one of whom knew appellants personally, the government adduced the following evidence at trial.On the evening of March 14 and into the early hours of March 15, 1998, appellants were at the Diversité nightclub at 14th and Q Streets, Northwest.Appellants were members of a gang called "Mara R."At one point, government witness José Benítez, who was a fellow Mara R gang member, saw appellantOscar Villatoro flash a gang sign in the nightclub at members of a rival gang, Mara Salvatrucha, commonly known as "MS-13."A fight then broke out in the night club.The night club operator shut the club down early as a result, and everyone was forced out onto the streets at approximately 3:00 a.m., March 15.Hostilities between the rival groups apparently ceased at that point, but the Mara R gang's aggressive attitude persisted.

Once outside, Benítez saw appellant Villatoro "jump" an unidentified, homeless man, and start to beat him up.²Benítez heard appellant Pérez shout "R, R" while making his gang's hand signal, and joined Villatoro in the assault.³The homeless man tried to escape, but ran into appellant Salamanca, who hit him, knocking him to the ground.Gang members Benítez, Navarette,⁴ and "Abuelo"⁵ joined in the assault by kicking the homeless man as he lay on the ground.

Greg Alexander was driving his maroon Oldsmobile on 14th Street past this scene with his two cousins and a friend, Warren Helm.When they noticed the assault, Alexander stopped the car and the four occupants got out to intervene on the homeless man's behalf.The attackers, however, left the homeless man and turned toward the four men.The intervenors retreated to the car when they saw that some of the men in the group had knives.The group followed them, throwing rocks and bottles at the Oldsmobile,⁶ and surrounded Helm before he could get into the car.Alexander drove off with his two cousins, while Helm tried to escape by running north on 14th Street.

Benítez testified that he chased Helm on foot along with appellants Pérez and Salamanca, and others.⁷As they gave chase, Benítez saw appellant Bonilla driving his Honda north on 14th Street, with appellant Robles-Benevides and two other fellow gang members, Walter Velásquez("Catinga")⁸ and Douglas Ventura.⁹When the car reached Helm, Bonilla stopped the car and Robles-Benevides, Velásquez, and Ventura got out of the car.

It appeared to Benítez that when Helm saw Bonilla's car pull up, he initially thought they were strangers stopping to help him.Once they were out of the car, however, it became obvious they were not there to offer assistance: Robles-Benevides and Ventura started hitting Helm and Velásquez stabbed him.Benítez testified that Bonilla also got out of the car, but did not know what he did.When Helm tried to run away, Ventura grabbed him and threw him to the ground.Benítez testified that those who had been chasing Helm on foot arrived at that time and joined in the attack.Appellants Robles-Benevides and Pérez, along with Ventura, Navarette, and "Abuelo," all beat Helm.Benítez admitted that he also participated in the assault.

At that moment, another passerby became involved.Barry Hallner, who worked as a medical assistant, was driving home with friends along 14th Street when he saw a "gang of people" chasing Helm.He saw the group eventually encircle Helm, beat him, and throw him to the ground.Hallner stopped his car and approached the group with a flashlight, yelling for them to stop, which only seemed to infuriate the assailants.Hallner saw a man in a blue jacket, whom he identified later that morning as Robles-Benevides, "kick [Helm] so hard in the chest you could just feel it."When Hallner jumped into the crowd to defend Helm, somebody hit him and knocked the flashlight out of his hand.As Hallner bent down to retrieve the flashlight, the man in the blue jacket (Robles-Benevides) kicked him in the throat.When the gang started to flee, Hallner yelled to his friends in the car to call 911.Hallner approached Helm, who was lying on the ground, and saw that Helm's "intestines were hanging out of his stomach," and that he had had suffered "quite a number of stab wounds."

When Greg Alexander, who had driven around the block after fleeing the scene, came back to 14th Street, he saw Helm stabbed to death and an "older, white guy"(Hallner) standing over him.

Three other government witnesses corroborated various parts of Benítez's testimony.AppellantLuis Pérez's brother, José ("Chino") Pérez, saw a fight outside the club after it had closed.José Pérez testified that he saw a red car stop, and five African-American men came out of the car and approached the group fighting outside the nightclub.He then saw all but one of the men reenter the car and drive off.José Pérez testified that the gang punched, kicked, and stabbed the man left behind (Helm).He saw Velásquez, Ventura, and "Abuelo" stab Helm.He saw his brother, appellantLuis Pérez, along with appellants Villatoro and Robles-Benevides punch Helm, and saw government witness Benítez punch and kick him (as Benítez had admitted).

When Rosa ("China") García left the club, she saw appellant Villatoro across the street arguing with a homeless man.She then walked north on 14th Street with her friends, Sandy Leonzo, Blanca Buruca, Mayra Rivera, and José ("Chino") Guevara.¹⁰At the intersection of 14th and Swann Streets (two and a half blocks north), she heard a "black male" crying out, "no, no, no."When she looked back, García saw Velásquez stabbing the man (Helm), and appellant Villatoro, along with Ventura,...