Wynn v. United States, 11–CF–22.

• Decision Date: 21 November 2013
• Docket Number: No. 11–CF–22.,11–CF–22.
• Citation: 80 A.3d 211
• Parties: Ronald WYNN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

80 A.3d 211

Ronald WYNN, Appellant,

v.UNITED STATES, Appellee.

No. 11–CF–22.

District of Columbia Court of Appeals.

Argued Dec. 6, 2012.

Decided Nov. 21, 2013.

David H. Reiter for appellant.

David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, T. Patrick Martin, and Sharad S. Khandelwal, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and OBERLY, Associate Judges, and FERREN, Senior Judge.

OBERLY, Associate Judge:

Ronald Wynn appeals his convictions for voluntary manslaughter while armed, possession of a firearm during a crime of violence (“PFCV”),¹ carrying a pistol without a license (“CPWL”),² felon in possession of a firearm (“FIP”),³ possession of an unregistered firearm (“UF”), ⁴ possession of unregistered ammunition (“UA”),⁵ and obstruction of justice.⁶ Wynn's convictions arise out of the shooting of Daniel Clark on July 28, 2008. At his first trial, Wynn was convicted of CPWL, FIP, UF, UA, and obstruction of justice, but the jury hung on the PFCV count and the original count of first-degree murder.⁷ Wynn was convicted of PFCV and the lesser-included offense of voluntary manslaughter while armed at his second trial. He now makes three arguments on appeal. First, Wynn argues that the evidence was insufficient to support his conviction under D.C.Code § 22–722(a)(3)(B), the portion of the Code that criminalizes the harassment of witnesses with the intent to obstruct the reporting of criminal offenses to law enforcement. Second, he claims that juror coercion tainted his convictions for CPWL, FIP, UF, UA, and obstruction of justice at his first trial. Finally, Wynn contends that the trial court erred at his second trial by permitting a witness to claim the privilege against self-incrimination when otherwise that witness would have testified favorably for him. We agree with Wynn's first argument and reverse the judgment against him for obstruction of justice. We find his other arguments without merit and affirm the remainder of his convictions.

I. Facts

A. The Shooting

On the late afternoon of July 28, 2008, Daniel Clark, his wife Bonita Clark, and their children arrived at a cookout at the Buena Vista Terrace apartments near their home in Southeast, Washington, D.C. A few hours into the cookout, Wynn drove up to an apartment near the cookout and dropped off his co-worker Terrence Brooks. Wynn and Brooks double-parked Wynn's car on the street in front of the cookout and exited the vehicle. Wynn left the car in the street and went to talk to some people he knew at the cookout. Bonita approached Wynn and asked him to move his car so that other vehicles could drive down the street unimpeded. A verbal, and possibly physical, dispute ensued between Bonita and Wynn. The argument escalated when Daniel approached Wynn and took issue with Wynn's behavior toward Bonita. The quarrel turned violent and the two men fought until separated by other people at the cookout. Witnesses testified that Wynn said to Daniel, “I kill little niggers like you.”

Daniel told Wynn to “stay here” and walked toward his home. Several witnesses saw Wynn then retrieve a pistol from his car. After obtaining his pistol, Wynn followed Daniel and tapped him on the shoulder. Wynn shot Daniel in the head when he turned around. After he shot Daniel, Wynn reportedly said, “Fuck you and your bitch.”

Wynn fled the scene and went to the apartment of his girlfriend, Veronica Morris, several blocks away. At the apartment, Wynn changed out of his clothes and spoke to Veronica's daughter, Brittany, telling her that “nothing was wrong.”

B. Wynn's Interactions with Veronica and Brittany Morris

Although Wynn told Brittany that “nothing was wrong,” he asked her to call her mother. Wynn told her to tell Veronica that if anyone asked Veronica about Wynn, Veronica was to say that Wynn had been with her at the time of the shooting. Veronica, unaware of any of the facts surrounding the shooting, was confused and repeatedly asked Brittany what was happening. In response, Wynn told Brittany to tell her mother not to worry, which Brittany did. Veronica testified that her reaction to Wynn's message was one of substantial confusion. She said that “she didn't even pay [any] attention to [Wynn's request]” because she “didn't comprehend it at all.” Wynn, who had been regularly staying at Veronica's apartment in the days leading up to the shooting, fled and did not have any interaction with Veronica until several days later. Wynn called Veronica by phone and told her that “it wasn't me,” but kept the discussion to a minimum for fear of police monitoring.

C. Jury Deliberations in the First Trial

Eventually, the police arrested Wynn and he was tried for first-degree murder. Wynn testified in his own defense. He claimed that after Daniel Clark appeared to walk away, he doubled back and approached Wynn aggressively with a gun. Wynn told the jury that he believed that Daniel was going to shoot him. He stated that he reacted and shot Daniel in self-defense with a gun he was carrying on his person.

During the first few days of deliberations, the jury sent a series of notes to the trial court. All of the jury's substantive notes dealt with the legal issues surrounding the murder count. The evening of the third day of deliberations, the jury told the trial court that it could not reach a unanimous verdict on the murder count and explained that the disagreement concerned whether there were “mitigating circumstances” attendant to the shooting. The court dismissed the jury for the evening without responding directly to its note. The morning of the fourth day of deliberations, a Friday, the court asked the jury whether it had reached a unanimous verdict on any count. The jury responded that it had not. Then, with the consent and encouragement of defense counsel, the trial court gave the jury an “anti-deadlock” instruction.

That afternoon, the jury sent another set of notes to the court. First, it sent a note stating, “We do not have [ sic ] unanimous verdict.” The trial court did not respond to that note, believing it to be simply a “status update.” Shortly thereafter, the jury followed with another note asking if it could return a verdict on the PFCV and obstruction of justice counts if it had not yet reached a verdict on the murder count. The trial court declined to give the jury the option of returning a verdict on the PFCV count, considering it too closely intertwined with the murder count. However, the court did inform the jury that it would be allowed to return a verdict on the obstruction of justice count and any other count on which the jury had reached a unanimous verdict. Before verdicts were returned, Wynn's defense counsel moved for a mistrial on all counts, which the trial court denied.

In response to the court's instruction, the jury sent a note attempting to inform the court where it stood on a count-by-count basis. The court, mistakenly believing that the note contained numerical splits on individual counts, did not read the note and sent it back to the jury. The jury followed by informing the trial court that it was prepared to give verdicts on the CPWL, FIP, UF, UA, and obstruction of justice counts. The trial court accepted the partial verdict and the jury found Wynn guilty on all counts, except for the murder and PFCV offenses on which the jury was still deliberating. The trial court dismissed the jury for the weekend and instructed it to resume deliberations on the remaining counts the following Monday.

After deliberating Monday morning, the jury sent a final note stating that it could not reach a unanimous verdict on the first-degree murder and PFCV counts. The defense moved for a mistrial and the trial court granted the motion. The trial court noted its concern that doing otherwise might have the appearance of coercing the jury.

D. The Second Trial and Terrence Brooks

At Wynn's second trial for PFCV and first-degree murder, his defense counsel informed the trial court that Wynn intended to call Terrence Brooks, Wynn's co-worker and the person that Wynn dropped off near the cookout before the shooting. Defense counsel proffered that Brooks would testify that he had seen Daniel Clark with a gun in his hand shortly before the shooting, thereby bolstering Wynn's claims of self-defense. Specifically, defense counsel stated:

[Brooks] is going to testify that ... he came down the steps, he briefly saw [another witness] in the hallway going up to his apartment, and [Brooks] said to him that he had to go to the bathroom.... And during this conversation—this encounter with [the other witness] that Mr. Brooks will testify he saw [the other witness] and Mr. Clark, the decedent, handling a silver-colored handgun. Passing it back and forth between each other.

However, Brooks testified during the grand jury investigation and denied any knowledge of substantive facts related to the shooting. Specifically, he told the grand jury that he never saw Daniel Clark with a gun. Brooks's appointed defense counsel informed the trial court that, if called by Wynn to testify, Brooks would assert his Fifth Amendment privilege against self-incrimination on the basis that, without immunity from the government, the proffered testimony would expose him to a perjury prosecution. The government responded that it would not grant Brooks immunity without a debriefing. On the advice of counsel, Brooks refused to participate in the debriefing process.

The trial court reviewed Brooks's grand jury testimony and engaged in a colloquy with Brooks about his potential privilege. It found that Brooks was at risk for a perjury prosecution if Brooks testified for Wynn in accordance with Wynn's counsel's proffer. The court further stated that the government's demand for a debriefing was not unreasonable or done in bad faith. As a result, the trial court permitted...