U.S. v. Cunningham

• Decision Date: 26 August 1998
• Docket Number: Nos. 97-3017,97-3044,s. 97-3017
• Citation: 145 F.3d 1385,330 U.S. App. D.C. 315
• Parties: UNITED STATES of America, Appellee, v. Harold CUNNINGHAM and Percy Barron, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1385

145 F.3d 1385

330 U.S.App.D.C. 315

UNITED STATES of America, Appellee, v. Harold CUNNINGHAM and Percy Barron, Appellants.

Nos. 97-3017, 97-3044.

United States Court of Appeals District of Columbia Circuit.

Argued May 7, 1998.

Decided June 19, 1998.

Rehearing Denied Aug. 26, 1998.

Appeals from the United States District Court for the District of Columbia (Nos. 95cr00088-01, 95cr00088-02).

Stephen C. Leckar and Jonathan Zucker, appointed by the court, argued the causes and filed the joint briefs for appellants Harold Cunningham and Percy Barron.

Rachel Carlson Lieber, Assistant U.S. Attorney, argued the cause for appellee, with whom Wilma A. Lewis, U.S. Attorney, John R. Fisher, and Kenneth L. Wainstein, Assistant U.S. Attorneys, were on the brief. Elizabeth Trosman, Mary-Patrice Brown, and Thomas C. Black, Assistant U.S. Attorneys, entered appearances.

Before: EDWARDS, Chief Judge, SILBERMAN, Circuit Judge, and BUCKLEY, Senior Circuit Judge.

HARRY T. EDWARDS, Chief Judge:

Appellants raise numerous challenges to their convictions arising from a 68-count indictment against them. Only a few of the issues raised merit our attention here.

We reject Appellant Harold Cunningham's claim that the District Court erred in permitting him to represent himself at trial. The District Court's findings that Cunningham's decision to represent himself was knowing and voluntary met the criteria specified in Faretta v. California, 422 U.S. 806, 95 S.Ct 2525, 45 L.Ed.2d 562 (1975), for determining when a defendant may exercise his constitutional right to forego his right to counsel. In particular, we reject Cunningham's assertion that he was faced with a "Hobson's choice" between representing himself or accepting inadequate counsel. The record indicates that the District Judge assured herself that Cunningham's attorney was adequately prepared for trial and made every reasonable effort to reassure Cunningham regarding his counsel's competence and preparedness in response to Cunningham's expressed concerns about his trial counsel. Where a defendant's complaints against counsel plainly lack merit, a court cannot allow itself to be manipulated into granting a continuance and appointing new counsel just to placate a defendant threatening to represent himself.

Appellant Percy Barron argues that the inadvertent submission of unadmitted evidence to the jury during its deliberations constitutes a violation of the Sixth Amendment, requiring a reversal of all the convictions against him. The Government responds that, although the alleged error was constitutional, there was overwhelming, untainted evidence sufficient to support Barron's convictions, so the error should be deemed harmless. Recent Supreme Court cases, as well as cases from this circuit, have clarified that harmless error review of constitutional errors calls for an inquiry as to whether the Government has shown beyond a reasonable doubt that the error at issue did not have an effect on the verdict, not merely whether, absent the error, a reasonable jury could nevertheless have reached a guilty verdict. Applying this standard, we find that the Government has failed to show beyond a reasonable doubt that the error at issue did not affect the jury's verdicts pertaining to the charges arising from the Sun Ray Market shootings. Accordingly, we reverse Barron's convictions arising from that incident. However, applying the same standard, we decline to reverse the convictions of Barron that were unrelated to the Sun Ray Market shootings.

In addition, we hold that several of Appellants' convictions should have been merged for sentencing purposes. Each Appellant's two convictions for armed robbery arising out of the Sammy's Liquor Store incident should merge into one, since Appellants robbed only the liquor store and not its employees. Also, each Appellant's armed robbery convictions should merge with their felony murder convictions where the indictment specified the armed robberies as the predicate for the felony murder counts. In addition, all eight of Cunningham's convictions under 18 U.S.C. § 922(g) should be merged into one, since the jury was never instructed that, to convict on each section 922(g) charge separately, it must find that the weapons were separately acquired or stored.

I. BACKGROUND

A. The Indictment

On April 13, 1995, Appellants Harold Cunningham and Percy Barron, together with codefendant Billy Richardson, were charged, pursuant to both federal and District of Columbia law in a 68-count indictment, with a series of armed robberies, assaults, and murders committed over a 139-day period in the summer of 1993. The indictment charged Appellants with Racketeer Influenced and Corrupt Organization ("RICO") counts for operating and conspiring to operate a criminal enterprise in violation of 18 U.S.C. § 1962(c) (counts 1-2) and with separate charges relating to several of the predicate racketeering acts (counts 3-68). The predicate acts arise from fifteen separate incidents alleged in the indictment: (1) the Sibley Plaza armed robbery; (2) the Discount Carpet armed robbery; (3) the IBEX Club assaults; (4) the Marvin Thomas assault; (5) the armed robbery of Officer Barnes; (6) the Annapolis armed robbery; (7) the Sammy's Liquor armed robbery; (8) the assault on Officer Hasenpusch; (9) the Horace and Dickie's armed robbery; (10) the attempted U-Haul armed robbery; (11) the Fair Liquor murders and robberies; (12) the Tyrone Holland murder; (13) the Sun Ray Market shootings; (14) the Marvin Thomas murder; and (15) the assault on Officer McDowell. The indictment charged Cunningham with various offenses arising from all fifteen of the alleged incidents; Barron was charged with specific offenses arising from all the incidents except for the assault of Officer McDowell. In addition, Appellants were charged with various gun possession offenses.

B. Cunningham's Election to Represent Himself

Robert Tucker, of the Federal Public Defender's office ("FPD"), represented Cunningham from the time of Appellant's arraignment until early April 1996. The record indicates that Cunningham became dissatisfied with Tucker's representation after reading a newspaper article about the offenses with which he was charged. Apparently, Cunningham interpreted this article as insinuating that Tucker believed Cunningham to be guilty of the charges alleged. See Tr. 4/26/96 at 7.

In an effort to placate Cunningham, the FPD replaced Tucker with Gregory Spencer. Prior to his appointment, Spencer had served as co-counsel to Tucker, first entering an appearance on March 6, 1996. At a status hearing on April 26, 1996, shortly before trial was then scheduled to begin, Cunningham expressed concern that Spencer would simply be picking up from where Tucker had left off, and stated that he did not want to be represented by anyone from FPD. Id. at 8. In response to questioning by the court, Spencer confirmed that he had fully examined Cunningham's file and conferred with Cunningham. He also stated that he felt he could make his own strategic decisions in the case, but that his ability to take an entirely new approach to the case would be "handicapped, to some degree" by the fact that most of the initial case preparation had been completed before he became involved in the case. Id. at 9-10.

The court denied Cunningham's request for a change of counsel, stating that it had "no reason to doubt the competen[ce], the zealousness, the seriousness or the belief of Mr. Spencer in the merits of his client's case." Id. at 12-13. The court also explained that the newspaper article about which Cunningham had complained could not be fairly read as an indication that Tucker believed Cunningham was guilty of the crimes alleged. Rather, the article had simply quoted Tucker's motion to dismiss the case which, in turn, had summarized the Government's allegations against Cunningham. Id. at 10-12. The court said the motion to dismiss was "vigorously written, ... extensively researched, and raised every argument that I can imagine could have been raised." Id. at 12.

At this point, Cunningham asserted that, if his request for new counsel were to be denied, he would rather represent himself. Id. at 13. The trial judge warned Cunningham that this was a risky decision, detailed for him some of the rigorous trial procedures he would be expected to follow, and admonished him to think carefully and consult with his family before making such a grave decision. Id. at 119-23. At a pretrial hearing a few days later, the trial judge conducted a more detailed explanation of the demands of the criminal trial process, inquired into Cunningham's understanding of such requirements, and repeatedly warned him against proceeding pro se. Tr. 4/30/96 at 45-60. Cunningham asserted that he understood "the seriousness of the case." Id. at 59. The trial judge briefly addressed the issue at a May 6, 1996 hearing, reiterating her faith in Spencer's ability to zealously represent Cunningham, based upon his performance in the case thus far and the time available for further preparation prior to trial. Tr. 5/6/96 at 26-27. Finally, on May 21, 1996, the court permitted Cunningham to represent himself, appointing Spencer as stand-by counsel, making the resources of the FPD available to Cunningham, and advising Cunningham that he could change his mind about representation at any time. Tr. 5/21/96 at 10-12, 65. On May 29, 1996, after Cunningham again reasserted his decision to represent himself, the court made specific findings on the record that, based upon her long discussions with Cunningham and his active participation thus far, Cunningham had made a knowing and intelligent waiver of his right to counsel. Tr. 5/29/96 at 38-39.

C. Trial and Verdicts

Trial commenced on June 3, 1996 and concluded on July 30, 1996.

After several days of deliberations, the jury returned partial verdicts as to each defendant on August 9, 1996, and then...