Tann v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Tann v. United States, 127 A.3d 400 (D.C. 2015)
• Decision Date: 19 November 2015
• Docket Number: 09–CF–1469,Nos. 09–CF–1438,09–CF–1482,10–CF–55,09–CF–1439,10–CF–120.,10–CF–54,09–CF–1450,09–CF–1483,s. 09–CF–1438
• Parties: Michael D. TANN, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver, Appellants, v. UNITED STATES, Appellee.

127 A.3d 400

Michael D. TANN, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver, Appellants,

v.UNITED STATES, Appellee.

Nos. 09–CF–1438

10–CF–54

09–CF–1439

10–CF–55

09–CF–1450

09–CF–1469

09–CF–1482

09–CF–1483

10–CF–120.

District of Columbia Court of Appeals.

Argued March 25, 2014.

Decided Nov. 19, 2015.

[127 A.3d 416]

Judith A. Lovelace, for appellant Tann.

Thomas T. Heslep, Washington, DC, for appellant Cooper.

Deborah A. Persico, for appellant Arnette.

Steven R. Kiersh, Washington, DC, for appellant Rushing.

Christopher Kemmitt, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Harris.

Stephen W. Riddell, for appellant Beaver.

Elizabeth Gabriel, Assistant United States Attorney, with whom

[127 A.3d 417]

Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Laura Bach, and John Giovanelli, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN, BLACKBURNE–RIGSBY, and THOMPSON, Associate Judges.

PER CURIAM:

After a nine-month jury trial, the six appellants in this case were convicted of conspiracy and a string of violent crimes, including homicides, that were committed in connection with their membership in a gang known as the 22nd Street Crew. They raise numerous challenges to their convictions in these consolidated appeals. With a few exceptions, however, we affirm the judgments of the Superior Court.

In view of the length of this opinion, before commencing our discussion of the proceedings below and appellants' claims, we set forth the following table of contents as an aid to the reader.

Table of Contents

I.	The Leslie Jones Murder	419
II.	The Terrence Jones Murder and Richard Queen Assault	420
III.	The James Taylor Murder and Bernard Mackey Assault	420
IV.	The Laquanda Johnson Murder and Keisha Frost Assault	421
V.	Obstruction of Justice—Witness Intimidation and Manipulation	422
VI.	Procedural Developments	422
VII.	Claims Concerning the Sufficiency of the Evidence	423

A. Conspiracy 423

1.	Antonio Arnette	426
2.	Dajuan Beaver	427
3.	Lannell Cooper	427
4.	Saquawn Harris	427
5.	James Rushing	428
6.	Michael Tann	428

B. Terrence Jones–Richard Queen Incident 430

1.	Tann's Convictions: Second–Degree Murder While Armed of Terrence Jones, Armed Robbery of Richard Queen, and Possession of a Firearm During the Commission of a Crime of Violence ("PFCV")	430
2.	Arnette's Convictions: Second–Degree Murder While Armed of Terrence Jones, Armed Robbery of Richard Queen, and PFCV	432

C. James Taylor–Bernard Mackey Incident 435

1.	The Government's Argument	437
2.	Appellant's Argument	438
3.	Analysis	439

D.	Beaver's Conviction: Obstruction of Justice	450
E.	Beaver's Conviction: Carrying a Pistol Without a License ("CPWL")	453
F.	Cooper's Conviction: Laquanda Johnson Murder Under Pinkerton	454

VIII. Procedural and Evidentiary Issues Related to the Conspiracy And Appellants' Joint Trial 456

A. Cooper's Prior Convictions 456

1.	Error in Admitting Cooper's Convictions Against Tann and Arnette	457
2.	Harmlessness	459
3.	Admission Against Cooper	460

B.	Tann's Severance Argument Unrelated to Cooper's Prior Conviction	461
C.	Laquanda Johnson's Statements Admitted Under a Forfeiture–by–Wrongdoing Theory	462
D.	The Trial Court's Finding of a Predicate Conspiracy	463
E.	Rap Lyrics and Beaver's Webpage	465

1.	Authorship of the Rap Lyrics on the CD	466
2.	Whether Michael Smith was a Co-conspirator	466
3.	Statements in Furtherance of Conspiracy	467
4.	Unfair Prejudice	468

F. Tann's Outburst 469

IX. Pretrial and Trial Issues Unrelated to the Conspiracy or Joint Trial 471

A. Evidentiary Issues 471

1.	Search of Beaver's Jail Cell	471
2.	Evidence of Uncharged Misconduct, Incarceration, and Fear Testimony	474

a.	Testimony of Andre McDuffie	474
b.	Testimony of Darryl Travers	476

3. Evidentiary Rulings During Cooper's Case–in–Chief 477

a.	Statements by Tamika Bradshaw	477
b.	Statements by Laquanda Johnson	477
c.	Statements by Cooper to Brandon Elzie	478

4. Admission of Tann's Videotaped Statement 479

B. Instructional Issues 479

1.	Obstruction of Justice Instruction	479
2.	Lesser–Included Offense Instruction: Relationship Between Felony and Second–Degree Murder	483
3.	Attitude and Conduct Instruction	484

C. Closing and Rebuttal Argument 484

1.	Government's Closing Argument	484
2.	Government's Rebuttal Argument	485
3.	Analysis	486

D. Discovery 488

1.	Loss of Cooper's Jail Phone Calls	488
2.	Dewey Chappel	489
3.	Kyara Johnson	491

E. Grand Jury Claims 492

1.	Pre–Indictment	494
2.	Post–Indictment	495

X.	Merger	496
XI.	Conclusion	497

[127 A.3d 418]

The government presented evidence at appellants' trial showing that there was a criminal street gang operating in the area of 22nd Street, Southeast, Washington, D.C. The investigation of this gang revealed a violent, drug-trafficking organization functioning in the blocks of 22nd Street that sat between Southern Avenue and Savannah Street, and influencing areas around the gang's base of operations. The goals of the organization were centered on the purchase, storage, packaging, and resale for profit, of illegal drugs within the community.

[127 A.3d 419]

Members of the gang committed numerous criminal acts in an effort to protect the territory of the gang and integrity of its operations. This misconduct took the form of acts of violence designed to safeguard the organization. Often, the violence was directed at perceived rivals who might threaten the gang's territory and drug trade or witnesses who might undermine its operations through cooperation with law enforcement.

The gang was called various names, including the "22nd Street Crew," "The Deuce," "Deuce–Deuce," "Shipley Market," "Young Gunz," and "Deuce Squad Mafia." For simplicity, it will be referred to in this opinion as the "22nd Street Crew." The 22nd Street Crew had a loose rank structure wherein members would play different roles according to the level of authority and respect they had gained over time through demonstrations of loyalty to the gang. Members that had achieved a sufficient level of respect would be referred to as "OGs" or "original gangsters." More junior members were labeled "baby gangsters" or "little locs."

The government's evidence tended to demonstrate the involvement of all six appellants in the 22nd Street Crew. Lannell Cooper had been part of the 22nd Street Crew since the 1990s and achieved an unmatched level of authority within the gang. Michael Tann was part of the gang for a similar period and was close behind Cooper in the hierarchy. James Rushing, Dajuan Beaver, and Antonio Arnette carried less weight in the organization; however, evidence was presented showing their long-standing involvement in the 22nd Street Crew and its operation. Saquawn Harris was a newer member, having been introduced by another high-ranking gang member.

The indictment in this case charged the six appellants with conspiracy and with committing serious acts of violence as part of their participation in the 22nd Street Crew. Specifically, the indictment articulated that each appellant entered into a conspiracy to "knowingly and willfully ... agree together to obstruct justice and to assault and kill anyone whose interests were contrary to those of [appellants] and their associates." In a nine-month joint trial of appellants from November 2008 to July 2009, the government endeavored also to show that four murders were committed, as part of the charged conspiracy, at or near 22nd Street between 2003 and 2006. The government contended that these murders were directed toward maintaining the turf and authority of the 22nd Street Crew, either by eliminating perceived rivals or killing government witnesses. Each appellant was involved in at least one of these murders; appellant Tann was alleged to have played a role in three of the four. The essential facts of each major incident are briefly recited here.

I. The Leslie Jones Murder

Leslie Jones was a drug dealer who sold his product near 22nd Street, specifically in the Shipley Market area. He had a long-running feud with Tann that revolved around competition for drug sales and a prior incident in which one of his relatives assaulted Tann and had stolen his weapon.

On the evening of April 11, 2003, Tann attended a small party with his future wife Tracey at his cousin's house in Southeast, Washington, D.C. At some point during the evening, Tann told Tracey that he was going to 22nd Street and left the party. Tann found Leslie Jones at a pay phone near Shipley Market and shot him from behind. 22nd Street Crew member Alphonce Little was an eyewitness to the murder. Another witness, Tyrone Curry, heard the gunfire and saw Tann running

[127 A.3d 420]

away from the scene of the crime. Tann later confessed to Tracey, and another 22nd Street Crew member named Donald Matthews, that he had committed the murder.

II. The Terrence Jones Murder and Richard Queen Assault

The murder of Terrence Jones on April 17, 2004, began with an argument on 22nd Street between gang member Donald Matthews and a 22nd Street resident, Kyara Johnson, apparently about the type of liquor that was to be served at Kyara's birthday party. The verbal quarrel threatened to become violent before it was broken up by Kyara's sister, Shaunta Armstrong. Shaunta called her close friend Terrence Jones and asked him to come to 22nd Street to make sure that the situation was under control. Terrence Jones went to 22nd Street with his friend, Richard Queen. Terrence Jones approached Matthews and had a brief conversation with him. Matthews explained that he "just had an argument [with Kyara] but it wasn't nothing." Witnesses reported that their interaction ended peacefully and without incident.

According to Kyara Johnson, appellant Arnette learned of the exchange between Donald Matthews and Terrence Jones and yelled, "Doe" [referring to appellant Cooper] Kyara heard Cooper respond, "Where at?" Shaunta Armstrong then heard someone (believed to be Cooper) ask, "Squirt [appell...