Emanuel Jenkins and Azariah Israel v. United States

Notice: This opinion is subject to formal revision before publication in the

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 10-CF-1184 & 10-CF-1232

EMANUEL JENKINS and AZARIAH ISRAEL, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(CF1-20178-08; CF1-15429-07)

(Hon. Michael Rankin, Trial Judge)

(Argued February 13, 2013 Decided December 12, 2013)

Abram J. Pafford for appellant Emanuel Jenkins.

Richard S. Stolker for appellant Azariah Israel.

Elizabeth H. Danello, Assistant United States Attorney, with whom Ronald

C. Machen Jr., United States Attorney, and Elizabeth Trosman, Deborah Sines,

and Jennifer Kerkhoff, Assistant United States Attorneys, were on the brief, for

appellee.

James Klein, Jaclyn S. Frankfurt, and Christine A. Monta filed a brief on

behalf of the Public Defender Service as amicus curiae.

Before GLICKMAN and OBERLY, Associate Judges, and REID, Senior Judge.

2

GLICKMAN, Associate Judge: Appellants Azariah Israel and Emanuel

Jenkins were tried together before a jury for murders and other serious crimes

committed in 2005 and 2006. The jury found Israel guilty on two counts of armed

first-degree murder, three counts of armed assault with intent to kill, and related

firearms charges, all in connection with a shooting of several individuals in

Columbia Heights in December 2005. Israel also was found guilty, along with

Jenkins, of conspiracy to obstruct justice and obstruction of justice in connection

with the subsequent murder in August 2006 of a witness to the Columbia Heights

shootings by the name of Charlie Evans. And though the jury hung on whether

either appellant was guilty of Evans‟s murder itself, it convicted Jenkins of

carrying a pistol without a license (CPWL) based on the evidence of his

involvement in that crime.

Appellants present us with numerous claims of error in the conduct of their

trial. Their weightiest challenges are to rulings admitting out-of-court statements

by Jenkins and Evans under, respectively, the coconspirator and forfeiture-by-

wrongdoing exceptions to the rule against hearsay. We conclude that error in the

admission of Jenkins‟s statements against Israel requires us to reverse Israel‟s

conviction for obstruction of justice. In addition, we must reverse Jenkins‟s

3

CPWL conviction for insufficient evidence. We affirm appellants‟ other

convictions.

I.

A. The Murder of Charlie Evans

Appellants‟ trial revolved in large measure around the fate of Charlie Evans,

a witness to the Columbia Heights shootings. Evans was last seen alive at around

11 p.m. on August 26, 2006, in the company of appellant Jenkins, and when Evans

was shot and killed on Varnum Street in Northeast Washington three hours later, a

vehicle linked by the government‟s investigation to Jenkins was observed leaving

the scene.

The prosecution called three witnesses who saw Evans and Jenkins together

on the eve of Evans‟s death. Macey Robertson, Paul Brown, and Vanessa Thomas

testified that they were with Evans that night at a parking lot near 14th and Euclid

Streets, Northwest, drinking and smoking marijuana, when Jenkins and another

4

man drove up in a red or burgundy SUV.1 Evans walked up to the SUV to speak

with Jenkins. As the parking lot was under surveillance, their meeting was

captured on a videotape that was shown to the jury. Jenkins exited the vehicle and

he and Evans made plans to buy PCP. While they were conferring, the SUV drove

away. Before Evans left the parking lot with Jenkins to procure the PCP, he told

Brown he did not feel safe and did not want to go with Jenkins alone. Brown was

not interested in accompanying them, however, and eventually, at around 11 p.m.,

Evans and Jenkins left by themselves on foot. Brown, Robertson and Thomas did

not see Evans again. A fourth government witness, Michael McNeill, testified that

at around 2:00 that morning he heard squealing tires and a gunshot outside his

house on Varnum Street. Looking out, he saw a dark-colored SUV drive off.

McNeill went outside and found Charlie Evans‟s body lying in the street.

Investigators subsequently compared tire tracks left on Varnum Street with

the tires on a burgundy-colored SUV belonging to Jenkins‟s parents. An FBI

examiner testified that one of the tires had tread design features that were

1

The identity of Jenkins‟s companion was not established. Brown testified

at trial that the other man was Ronald Jenkins. In the grand jury, however, he

testified that the man was someone named “Jeremy.”

5

consistent with these tracks. Jenkins‟s mother testified that Jenkins had access to

this vehicle.

B. The Columbia Road Shootings

The government‟s theory at trial was that Jenkins killed Evans to prevent

him from testifying about a previous shooting committed by Jenkins‟s cousin,

appellant Israel. That incident took place on Columbia Road near 13th Street,

Northwest, on the evening of December 9, 2005. The victims were a group of

young men known as the “1-7 boys” (so-called because they came from the

neighborhood around 17th Street, N.W.) who were “hang[ing] out” there at the

time. One of the survivors, Cortez Blount, testified that Charlie Evans, whom he

knew by the nicknames “Charlie Brown” and “Lamb Chop,” arrived and “had

words” with one of the group members. Two men, one with a tightly tied hoodie

and one with a ski mask, arrived shortly afterward. Evans stepped away. Some

pushing ensued and the man in the hoodie, whom Blount could not identify, started

shooting at the 1-7 boys who had been talking with Evans. He killed two of them

and wounded three, including Blount. Two months later, in February 2006,

Detective Mitch Credle of the Metropolitan Police Department told Israel that he

was the primary suspect in the shootings.

6

At appellants‟ trial, a government witness named George Haynes testified

that Israel, in a conversation with him, had admitted having perpetrated the

shootings on Columbia Road. As further proof of that fact, the government

introduced evidence that Israel committed another murder a week earlier at a store

on Chapin Street near 14th Street, N.W., with the same gun that was used in the

Columbia Road shooting.2 Israel‟s cousin Jeremy Johnson, whose presence during

the Chapin Street shooting was confirmed by the store‟s surveillance tape, had

testified before the grand jury that Israel was the shooter.3 The trial court ruled the

evidence of the uncharged Chapin Street murder admissible “on the issue of

whether the shooter in the first case was the same shooter in the second case.”

2

A government firearms expert testified that cartridge casings recovered

from the scenes of the Chapin Street and Columbia Road shootings had been

expelled by the same gun.

3

Johnson recanted this testimony at trial, claiming he was drunk and high

when he gave it. Opining that Johnson looked “scared to death,” the trial judge

admonished the prosecution to let him know protection was available. Because

Johnson took the stand at trial and was subject to cross-examination, his grand jury

testimony was admissible against Israel. See D.C. Code § 14-102 (b)(1) (“A

statement is not hearsay if the declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement and the statement is

inconsistent with the declarant‟s testimony, and was given under oath subject to the

penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.”).

7

C. Hearsay Statements by Charlie Evans

Under the doctrine of forfeiture by wrongdoing, the court also permitted the

prosecution to introduce a number of out-of-court statements made by Charlie

Evans either under oath before the grand jury or in conversations with other

government witnesses. The statements were admitted to prove not only that Israel

committed the shootings on Columbia Road, but also Israel‟s and Jenkins‟s

complicity in Evans‟s own murder.

In an appearance before the grand jury that subsequently indicted Israel,

Evans testified that he was present at the scene of the Columbia Road shootings

and knew who committed them. He identified the hooded man who suddenly

opened fire on the 1-7 boys as Israel, whom Evans knew as a friend of his sister.

Evans identified the man in the ski mask who accompanied Israel as Clifton

Chaney, who was related to Israel. Immediately after the shootings, Evans

testified, Israel confronted him and asked him if he had seen anything. Evans

assured Israel he had not. Israel and others on his behalf later called Evans to

arrange a meeting, which Evans avoided because he feared Israel wanted to kill

him.

8

At trial, Evans‟s sister testified that Evans told her, too, that he had seen

Israel commit the Columbia Road shootings. She also said Evans had expressed

fear for his life because of his cooperation with the grand jury investigation. Paul

Brown testified there had been rumors going around that Evans was “snitching.”

Evans told Macey Robertson he was anxious about these rumors and that Jenkins

had accosted him in Adams Morgan and accused him of snitching on Israel.4

Evans told another government witness, Niam Pannell, that Jenkins had pulled a

gun on him.5

D. Recorded Phone Conversations Between Israel and Others

Finally, the government also relied at trial on a series of recorded phone

calls made by Israel from the D.C. Jail (where he was being held following his

arrest on an unrelated charge). The calls, which took place between March and

August of 2006, were to Jenkins and others, including the aforementioned Clifton

Chaney and his brother Pierre Chaney. The trial court ruled that statements in

4

Evans also told Robertson he thought the 1-7 boys were after him for

setting up the Columbia Road shootings.

5

Pannell recounted this statement by Evans during an appearance before the

grand jury. Like Johnson, Pannell sought at trial to disassociate himself from his

grand jury testimony by claiming he was high at the time he gave it.

9

these calls were admissible in evidence pursuant to the coconspirator exception to

the hearsay rule.

The participants on the phone calls, aware they were being recorded, spoke

guardedly, in a sort of slang or code, about searching for and confronting someone

they usually referred to as “Chizzie Brown,” “Cazuz,” “Cazuzzle,” or a similar,

transparently fake, variant on those monikers. In one conversation, though, Pierre

Chaney, reported that “they‟ve been missing that girl” and that he had “been trying

to see if she been out there.” Israel, confused, asked Pierre, “What girl?” to which

Pierre responded “Charlie.” The government contended that the speakers‟

statements showed they were looking for Charlie Evans (who, as Blount testified,

was known as “Charlie Brown”6).

During one exchange on April 6, 2006, Israel asked Clifton Chaney whether

he had “seen our man,” and Clifton responded, “I don‟t know what you‟re saying.”

When Israel then said “Cazeez, uh, Cazuzzle,” Chaney said he had seen him the

previous day. Israel then told Chaney to “holler at, holler at my cousin,” and

Chaney replied, “I‟m gonna holler at, holler at cuz then.” The government argued

6

Jeremy Johnson, before the grand jury, also testified that Evans was known

as Charlie Brown.

10

that this exchange signified that Israel was asking Chaney to point out Evans to

Jenkins (who did not know Evans).

In a conversation on July 10, 2006, Jenkins told Israel that he “had him . . .

up in Adams Morgan.” The government contended that this corroborated Evans‟s

statement that Jenkins had caught up with him there and accused him of snitching

on Israel. Finally, on Tuesday, August 22, Jenkins told Israel that he “had . . . Old

Chizzie Brown,” who (Jenkins stated) was “off that water.”7 In that same

conversation, Jenkins said “every weekend it just gets sweeter and sweeter . . . .

I‟m telling you cuz, by this weekend. . . .” Jail records showed that Jenkins visited

Israel three days later, on Friday, August 25, 2006. As previously mentioned, the

evidence at trial showed that Jenkins found Charlie Evans late the following night,

and that Evans was killed early Sunday morning. The government argued that

Jenkins‟s statements on August 22 confirmed that he plotted with Israel to kill

Evans that weekend.

7

A witness testified that “off the water” was slang for being addicted to

PCP.

11

E. The Jury’s Verdict

Based on the foregoing evidence, the jury considered a number of charges

against appellants. In connection with the Columbia Road shootings, Israel was

charged with two counts of first-degree murder, three counts of assault with intent

to kill while armed, five counts of possession of a firearm during a crime of

violence, one count of carrying a pistol without a license, and one count of

unlawful possession of a firearm after conviction of a felony. In addition, both

Israel and Jenkins were charged with the first-degree murder while armed of

Evans, and Jenkins was charged with CPWL. Finally, each appellant also was

charged with obstruction of justice and conspiracy to obstruct justice. The

obstruction count alleged that Jenkins killed Evans because he provided

information in the investigation of the Columbia Road shootings, and the alleged

object of the conspiracy was to prevent Evans from assisting law enforcement and

testifying against Israel in the investigation and prosecution of those shootings.

The jury deliberated for over a week, during which it sent several notes, one

of which expressed uncertainty as to whether it had to find that Jenkins personally

shot Evans in order to find him and Israel guilty of first-degree murder. (Recall

that an unidentified second man was with Jenkins in the SUV when Jenkins found

12

Evans on the night of August 26, and that the government presented no eyewitness

testimony specifically identifying Jenkins as the shooter.) The trial court denied

the government‟s request for a supplemental instruction on aiding and abetting

and/or causation because doing so would introduce an alternative theory of liability

in the middle of jury deliberations. Consequently, the court told the jury that the

government had to prove that Jenkins “actually discharged the firearm” himself.

The jury eventually hung as to both appellants on the count of Evans‟s murder (and

the government subsequently dismissed this murder charge).

The jury convicted appellants of all the other charges. As to the charge of

conspiracy to obstruct justice, the jury found four overt acts taken in furtherance of

the conspiracy: (1) Jenkins and Israel discussed preventing Evans from testifying

against Israel; (2) Israel directed another person to point out Evans to Jenkins; (3)

Jenkins located Evans on August 26, 2006; and (4) Jenkins persuaded Evans to

leave with him that night. Although it was charged as another overt act, the jury

did not find that Jenkins shot Evans for the purpose of preventing him from

testifying.

13

F. Jenkins’s Sentencing

The court sentenced both defendants later in 2010. Of relevance to this

appeal is the court‟s decision to sentence Jenkins to 20 years‟ imprisonment for

obstruction of justice.8 While this was below the statutory maximum (30 years), it

was above the presumptive range for obstruction of justice in the voluntary

sentencing guidelines. The court explained that it chose to depart upward from the

guidelines in view of what it found to be aggravating factors—in particular, that

the obstruction was particularly egregious because it involved the murder of a

witness, and that Evans was a particularly vulnerable victim due to his PCP

addiction and other circumstances.

II.

Appellants Jenkins and Israel present multiple claims of error in the trial

court proceedings. We shall begin by addressing their objections to the admission

of out-of-court statements pursuant to the coconspirator and forfeiture-by-

8

The court imposed a five-year sentence on Israel for this offense.

14

wrongdoing exceptions to the rule against hearsay.9 We review the court‟s rulings

on admissibility for abuse of discretion; in so doing, we accept the factual findings

on which the rulings rest so long as they are not clearly erroneous, while we accord

de novo consideration to the legal issue of whether the hearsay exceptions were

available.10

9

Jenkins presents an additional hearsay argument that does not depend on

the applicability of either of these exceptions. He asserts that the government

impermissibly elicited testimony from Detective Credle that Niam Pannell told him

Jenkins had pulled a gun on Evans. The introduction of Pannell‟s hearsay

statement through Credle was harmless, however. For one thing, it was

cumulative, as Pannell‟s grand jury testimony that Jenkins had pulled a gun on

Evans was already properly in evidence. Moreover, while the indictment alleged

Jenkins‟s display of a gun to Evans as an overt act in furtherance of the charged

conspiracy, the jury did not find that overt act to have been proven. In view of

these facts, we are satisfied that the “judgment was not substantially swayed” by

the error in admitting Pannell‟s hearsay statement to Credle. Kotteakos v. United

States, 328 U.S. 750, 746 (1946).

Israel as well presents an issue that we do not feel the need to address at

length. Israel asserts that the trial court should have granted a mistrial after the

prosecutor, referring in her opening statement to the persons slain on Columbia

Road, commented that “a family buried two of their own.” Even viewing this as an

inappropriate allusion to the suffering of the victims‟ family, it was an isolated and

relatively mild remark. We are confident it had no effect on the jury‟s verdict.

Such brief irrelevant rhetoric is insufficient to warrant a mistrial, and the court did

not abuse its discretion in denying one.

10

See, e.g., Smith v. United States, 26 A.3d 248, 257 (D.C. 2011); Roberson

v. United States, 961 A.2d 1092, 1097 (D.C. 2008).

15

A. Coconspirator Hearsay

Both appellants challenge the introduction of parts of the recorded jail calls

under the coconspirator hearsay exception. While the statements made by each

defendant were admissible against that same defendant under the separate

exception for party admissions,11 the government invoked the coconspirator

exception to introduce against each defendant statements made by the other

declarants (including the co-defendant). Israel complains, primarily, of the

admission of Jenkins‟s statements against him, while Jenkins mainly objects to the

admission of Pierre Chaney‟s comments. The trial court admitted these statements

without a limiting instruction under the coconspirator exception after finding that

“the totality of the evidence proffered constitute[d] . . . fairly overwhelming

evidence” of a conspiracy that included at least Israel, Jenkins, and Pierre Chaney.

An out-of-court statement is hearsay, and hence must come within an

exception to the rule against hearsay to be admissible, if it is offered for the truth of

11

See Comford v. United States, 947 A.2d 1181, 1185 (D.C. 2008) (“[O]ur

cases continue to treat party-admissions as an exception to the rule against

hearsay.”); Chaabi v. United States, 544 A.2d 1247, 1248 n.1 (D.C. 1988) (“We

have traditionally considered admissions to be exceptions to the hearsay rule.”).

16

the matter asserted, but not if it is offered for another (“non-hearsay”) purpose.12

As we shall see, the statements in the recorded phone calls were admissible as non-

hearsay, insofar as they were, regardless of their truth, verbal acts probative of the

existence of the conspiracy and the identity of its members. To that extent, the

statements did not need to come within the coconspirator (or any) hearsay

exception to be admitted in evidence. However, the trial court‟s ruling permitted

the government to urge the jury to accept as true what the hearsay declarants

asserted: specifically, that Jenkins and the Chaney brothers were out looking for

Evans between March and August 2006; that Jenkins confronted him in Adams

Morgan; and that Jenkins expected to find and confront Evans the weekend that

Evans was killed. To the extent that the statements were thus introduced, at least

in part, for their truth, we must consider whether the requirements of the

coconspirator exception were satisfied.

12

Cox v. United States, 898 A.2d 376, 380 (D.C. 2006) (Trial court erred in

ruling that statements were inadmissible hearsay where “[a]ppellant sought

admission of the statement not for the truth of what he said but for the fact that the

statement was made.”); Carter v. United States, 614 A.2d 542, 545 n.9 (D.C. 1992)

(“[I]f a statement is not offered to prove the truth of the matter asserted, it is not

hearsay.”); Fed. R. Evid. 801 advisory committee note (“If the significance of an

offered statement lies solely in the fact that it was made, no issue is raised as to the

truth of anything asserted, and the statement is not hearsay.”).

17

This court set forth the requirements in this jurisdiction for introducing

hearsay statements made by alleged coconspirators in Butler v. United States.13 In

that case we adopted the exception contained in Federal Rule of Evidence 801

(d)(2)(e) and held that a coconspirator‟s out-of-court assertions may be admitted

for their truth only if the judge finds it more likely than not that (1) a conspiracy

existed, (2) the defendant had a connection with the conspiracy, and (3) the

coconspirator made the statements during the course of and in furtherance of the

conspiracy.14 Butler also considered what evidence the judge is allowed to

consider in making those findings—specifically, “whether all proffered evidence

may be regarded, or whether only independent nonhearsay evidence may be

considered” in determining the availability of the coconspirator exception.15 The

court found support for the latter view, under which the judge may not consider the

alleged coconspirators‟ statements themselves, in the Supreme Court‟s decision in

13

481 A.2d 431 (D.C. 1984).

14

Id. at 439-41.

15

Id. at 439.

18

Glasser v. United States,16 but that decision predated the Federal Rules of Evidence

and (at the time of our decision in Butler) the federal circuit courts were divided

over whether Federal Rule of Evidence 104 (a) overruled Glasser on this point.17

Acknowledging the split of federal authority, we elected in Butler, “as a matter of

state law, [to] adhere to the requirements of Glasser.”18 Accordingly, we held that,

in determining the availability of the coconspirator exception, the judge is

prohibited from considering the alleged coconspirators‟ statements themselves and

16

315 U.S. 60, 74-75 (1942) (“[S]uch declarations are admissible over the

objection of an alleged co-conspirator, who was not present when they were made,

only if there is proof aliunde that he is connected with the conspiracy. . . .

Otherwise, hearsay would lift itself by its own bootstraps to the level of competent

evidence.”); see also United States v. Nixon, 418 U.S. 683, 701 (1974)

(“Declarations by one defendant may also be admissible against other defendants

upon a sufficient showing, by independent evidence, of a conspiracy among one or

more other defendants and the declarant and if the declarations at issue were in

furtherance of that conspiracy.”).

17

Butler, 481 A.2d at 439. Rule 104 (a) allows judges to consider hearsay

and other inadmissible evidence in ruling on questions of admissibility. Although

this court has not “adopted” Rule 104 (a) in any formal sense, the principle it states

is one we generally have followed outside the coconspirator hearsay context. See,

e.g., Roberson v. United States, 961 A.2d 1092, 1096 & 1096 n.11 (D.C. 2008).

18

Butler, 481 A.2d at 440 n.14.

19

may rely “only” on “independent nonhearsay evidence.”19 We identified two

policy reasons for choosing to retain this requirement derived from Glasser: (1) it

“ensures the reliability of coconspirator‟s statements admitted at trial by

determining that sufficient corroborating evidence of a conspiracy exists,” and (2)

it “guards against the danger of „bootstrapping,‟ i.e., using hearsay evidence to

justify its own admission.”20

Not long after Butler was decided, the Supreme Court resolved the split in

federal authority. In Bourjaily v. United States, the Court held that Federal Rule of

Evidence 104 (a) prevailed over Glasser and authorized federal judges deciding the

admissibility of hearsay under the coconspirator exception to consider the hearsay

itself along with other, independent evidence of the conspiracy. 21 Finding this

19

Id. at 439-40 & 440 n.14. Glasser, it should be noted, did not require that

a court consider only non-hearsay in ruling on the admissibility of coconspirator

hearsay. The Butler court‟s rationale for adding this condition is not entirely clear.

The court acknowledged that at least one federal circuit court had approved

“consideration of all evidence, regardless of its hearsay nature, except the specific

hearsay evidence for which admission is sought.” Butler, 481 A.2d at 439 n.13

(citing United States v. James, 590 F.2d 575, 580-81 (5th Cir. 1979) (en banc)).

The court rejected such a rule, saying only that it “presents a task more

complicated than necessary for the trial judge without, in our view, compensating

advantages.” Id.

20

Id. at 440 (citing Glasser, 315 U.S. at 74-75).

21

483 U.S. 171, 181 (1987).

20

result compelled by the clear language of the Rule, the Court dismissed the

concern that it would “allow courts to admit hearsay statements without any

credible proof of the conspiracy.”22 On the contrary, the Court had “little doubt

that a co-conspirator‟s statements could themselves be probative of the existence of

a conspiracy and the participation of both the defendant and the declarant in the

conspiracy,” especially if the statements are corroborated by other evidence.23

In the years since Bourjaily was decided, we have deferred consideration of

its effect on our holding in Butler.24 We are obliged to answer that question now,

however, because it is, in part, outcome-determinative.25

We conclude that Butler remains controlling authority in the local courts of

the District of Columbia. This conclusion is not to be understood as resulting from

disagreement with Bourjaily or as expressing a preference for Butler over

22

Id. at 179.

23

Id. at 180.

24

See Ward v. United States, 55 A.3d 840, 849 n.7 (D.C. 2012); Bellanger

v. United States, 548 A.2d 501, 502 n.4 (D.C. 1988).

25

Following oral argument, we directed the parties and invited the Public

Defender Service as amicus curiae to argue the issue in supplemental briefing,

which we have received.

21

Bourjaily on the merits. Rather, as a division of this court, we have no power to

overrule Butler; only the court sitting en banc can do so.26 The holding of Butler

is, therefore, binding on us unless we determine that it has been overruled or, at a

minimum, that its “philosophical basis” has been “substantially undermined” by

subsequent decisions of the Supreme Court (i.e., by Bourjaily).27

Clearly, Butler has not been overruled. The Federal Rules of Evidence do

not govern proceedings in the local courts of the District of Columbia (except to

the extent that this court, on a case-by-case basis, has chosen or chooses in the

future to adopt a specific Rule as local law). Bourjaily‟s construction of Rule 104

(a)—a Rule we have not formally adopted, though it accurately states the rule of

evidence we generally follow—therefore cannot be said to constitute an overruling

26

See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (holding that “no

division of this court will overrule a prior decision of this court”).

27

Frendak v. United States, 408 A.2d 364, 379 n.27 (D.C. 1979) (“We do

not believe . . . that M.A.P. v. Ryan . . . obliges us to follow, inflexibly, a ruling

whose philosophical basis has been substantially undermined by subsequent

Supreme Court decisions.”); see also Smith v. United States, 984 A.2d 196, 200-01

(D.C. 2009).

22

of Butler‟s “state law” holding.28 It likewise cannot be said that Bourjaily

“substantially undermined” Butler‟s “philosophical” underpinnings. The Butler

court made a deliberate decision to adopt an independent evidence requirement for

proceedings in our local court system after considering the disparate views of the

federal circuits and rejecting the position ultimately approved in Bourjaily. We did

so not with the goal of conforming to the Federal Rules of Evidence or federal law,

but as a matter of local evidentiary policy to ensure the reliability of coconspirator

hearsay introduced at trial and guard against the danger of “bootstrapping.” That

Bourjaily recognized countervailing considerations and concluded that “[a] per se

rule barring consideration of [coconspirator hearsay] during preliminary

factfinding is not therefore required”29 reinforces what we already knew: that there

are two sides to the issue. Perhaps it supports doubts about the rationale and

wisdom of the policy choice made in Butler, as the government argues. This is not

enough, however, to undercut the substantial legitimacy of Butler‟s policy decision

in favor of an independent evidence requirement for the admission of coconspirator

28

While we often look to federal law for guidance, “this court is the final

authority for establishing the evidentiary rules for the Superior Court of the District

of Columbia.” Laumer v. United States, 409 A.2d 190, 195 n.7 (D.C. 1979) (en

banc).

29

483 U.S. at 180.

23

hearsay—a requirement, we note, that courts in a number of other jurisdictions also

have chosen to adopt.30

Applying Butler, therefore, to the present case, we are constrained to

conclude that there was insufficient independent, non-hearsay evidence of the

conspiracy to support the trial court‟s ruling. It is true, as the government argues,

that there was independent, non-hearsay evidence that Evans witnessed the

30

Hillard v. State, 53 So. 3d 165, 168 (Ala. Crim. App. 2010) (“In order for

the extrajudicial statement of a coconspirator to qualify under the coconspirators‟

exception . . . the existence of the conspiracy must be shown by independent

evidence.”); People v. Wolf, 772 N.E.2d 1124, 1132 (N.Y. 2002) (According to

New York law, determination that there was a conspiracy for the purposes of

admitting coconspirator hearsay determination “must be made without recourse to

the declarations sought to be introduced.”); State v. Batchelder, 740 A.2d 1033,

1036 (N.H. 1999) (noting that New Hampshire law requires that existence of a

conspiracy for the purpose of admitting coconspirator hearsay be demonstrated by

independent evidence and “declin[ing] to consider whether [that rule] should be

interpreted as the State suggests in accordance with Bourjaily.”); State v. Hansen,

562 N.W.2d 840, 848 (Neb. 1997) (“[T]he rule is well established that before the

trier of fact may consider testimony under the coconspirator exception to the

hearsay rule, a prima facie case establishing the existence of the conspiracy must

be shown by independent evidence.”); People v. Steidl, 568 N.E.2d 837, 849 (Ill.

1991) (coconspirator statements “are admissible against all conspirators upon an

independent, prima facie evidentiary showing of a conspiracy.”) (emphasis in

original); State v. Clausell, 580 A.2d 221, 241 (N.J. 1990) (Before admitting

coconspirator statements a trial court must find that “a fair preponderance of

evidence independent of the hearsay statements supports the existence of the

conspiracy and of defendant‟s relationship to it.”) (internal quotation marks

omitted); Romani v. State, 542 So. 2d 984, 986 (Fla. 1989) (As a matter of state

law, the Florida Supreme Court “decline[s] to adopt the federal approach laid out

in Bourjaily.”).

24

Columbia Road shootings; that he was rumored to be cooperating with the police;

that Israel was told he was a suspect; that Jenkins was Israel‟s cousin and visited

Israel at the D.C. Jail shortly before Evans was murdered; and that Jenkins was the

last person seen with Evans, only three hours before the murder. Outside of the jail

calls themselves, however, there is no substantial non-hearsay evidence that

Jenkins plotted or contrived with Israel to kill Evans; no evidence, in other words,

that there was a conspiracy involving Israel.

Whether and to what extent appellants were prejudiced by the erroneous

admission of hearsay for its truth under the coconspirator exception, and hence are

entitled to relief, is another question. In considering this question, we must take

into account the fact that the statements at issue were relevant for a non-hearsay

purpose, for which they did not have to meet Butler‟s requirements to be admitted

against each appellant.31

Statements between alleged coconspirators can be relevant wholly apart

from their truth or falsity because the very act of plotting is itself compelling proof

31

See Walker v. United States, 982 A.2d 723, 737 (D.C. 2009) (citing

Butler, 481 A.2d at 438 n.10 (holding that a directive between coconspirators did

not fall under the coconspirator hearsay rule as it was not introduced for its truth

and so was not hearsay)).

25

of the existence of the conspiracy.32 For this purpose, the veracity of the plotters‟

assertions is not the point; rather, the statements are non-hearsay verbal acts that

manifest the conspiratorial agreement.33 (Moreover, as the jury found in this case,

the communications between conspirators also can constitute overt acts in

furtherance of the conspiracy, and this is so without regard to whether they are

true.) Israel‟s recorded plotting with Jenkins and the Chaneys thus was admissible

simply to demonstrate that the four speakers were engaged in a conspiracy; and for

32

See, e.g., United States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006)

(“Statements by coconspirators are commonly introduced at trial simply because

the statements themselves are part of the plotting to commit a crime.”); citing

United States v. Lim, 984 F.2d 331, 336 (9th Cir. 1993); New York v. Hendrickson

Bros., Inc., 840 F.2d 1065, 1075 (2d Cir. 1988); United States v. Hamilton, 689

F.2d 1262, 1270 n.4 (6th Cir. 1982); United States v. Burke, 495 F.2d 1226, 1232

(5th Cir. 1974). See also People v. Caban, 833 N.E.2d 213, 217-18 (N.Y. 2005)

(statements of agreement and planning are relevant even if untrue, for the mere fact

that they were uttered is relevant to prove a conspiracy); State v. Henry, 752 A.2d

40, 46-47 (Conn. 2000) (statement between defendant and coconspirator that they

would shoot victim was not admitted for truth but to show conspiratorial

agreement); Commonwealth v. McLaughlin, 726 N.E.2d 959, 964 (Mass. 2000);

State v. Ross, 573 N.W.2d 906, 916 (Iowa 1998); State v. Lobato, 603 So. 2d 739,

746 (La. 1992); State v. Brooks, 655 P.2d 99, 106-07 (Idaho 1982).

33

Puma v. Sullivan, 746 A.2d 871, 876 (D.C. 2000) (“Although the

statement was made by an out-of-court declarant, it is not hearsay, because

Ewoldt‟s offer is not an assertion; it is a verbal act. In other words, the offer is

non-hearsay under the general definition, because it is not being used for the truth

of the matter it asserts; it simply is being used to prove Ewoldt spoke the words of

an offer.”); see also David S. Davenport, The Confrontation Clause and the Co-

conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 HARV.

L. REV. 1378, 1398-99 (1972).

26

that purpose it makes no difference whether, for example, Jenkins was telling the

truth or lying when he said he had been looking for Evans, had found him in

Adams Morgan, and expected to catch him again over the coming weekend. Thus,

despite the Butler error, it was permissible for the jury to consider the recorded

statements as non-hearsay proof of the existence of the alleged conspiracy without

regard to the truth of the statements.34

Consequently, the focus of our harmlessness inquiry is narrowed. Neither

Israel nor Jenkins can claim to have been prejudiced by the Butler error unless the

jury may have relied on the truth of another putative conspirator‟s statements in

finding him guilty on a particular count. We readily rule out that possibility with

respect to Israel‟s convictions of the charges relating to the shootings on Columbia

Road. Even assuming that the recorded statements evidencing Israel‟s

involvement in a conspiracy to eliminate a witness helped prove Israel‟s

commission of the Columbia Road shootings by revealing his consciousness of

34

It may seem paradoxical that conspirators‟ statements are admissible as

non-hearsay to prove the existence of the conspiracy to the jury, but

simultaneously may not be considered by the judge for purposes of the

coconspirator exception. But that is the import of Butler‟s independent evidence

requirement. See Caban, 833 N.E.2d at 217-19 (holding conspirators‟ statements

admissible as verbal acts to prove existence of conspiracy but not, absent

independent evidence of the conspiracy, for their truth).

27

guilt, this probative value depended only on the fact of the plotting, not on the truth

of anything Israel‟s fellow plotters said to him. Similarly, we see no reason to

suppose that the jury relied on the truth of the conspirators‟ statements in

convicting appellants of conspiracy to obstruct justice. The existence of the

conspiratorial agreement and the four overt acts found by the jury were proved by

non-hearsay evidence—the conspirators‟ recorded statements, considered simply

as verbal acts manifesting the conspiracy, and the eyewitness testimony of the

witnesses who were present when Jenkins and Evans met at the parking lot shortly

before Evans was killed.35

That leaves the obstruction of justice count. We conclude that the Butler

error was harmless with respect to Jenkins‟s conviction on that count. Jenkins

complains only about the admission of Pierre Chaney‟s statements to the effect that

“they” had been looking for “that girl,” whom Chaney called “Charlie.”36 In view

35

So, too, we are confident that the jury did not rely on coconspirator

hearsay to convict Jenkins of CPWL; however, as we discuss below, we reverse his

conviction of that offense on other grounds, namely, the insufficiency of the

government‟s proof.

36

Jenkins does not object to the admission against him of anything said by

Israel. Israel‟s comments during the calls were minimally probative of Jenkins‟s

guilt. This is not surprising, as Israel knew all his calls were being recorded.

Israel demonstrated his keen awareness of this when, at one point, he warned

Jenkins not to “even talk on the phones, you hear me.”

28

of Jenkins‟s own recorded statements implicating himself in the conspiracy and the

other substantial evidence of his involvement in Evans‟s murder, we are confident

that the admission of Chaney‟s statements did not “substantially sway” the jury‟s

verdict that Jenkins obstructed justice by killing Evans.37

We reach a different conclusion with respect to Israel‟s conviction for

obstruction of justice. Under the principle that a conspirator is liable for crimes

committed by his coconspirators in furtherance of the conspiracy,38 the verdict

against Israel on the obstruction count rested, in part, on the evidence the jury

relied on to convict Jenkins of obstruction. That evidence may have included

Jenkins‟s recorded hearsay statements, considered by the jury for their truth. We

are not prepared to discount the importance of Jenkins‟s incriminating hearsay to

the jury‟s finding that he, and hence Israel, obstructed justice. We therefore cannot

find the Butler error harmless with respect to Israel‟s conviction for that offense.

37

Kotteakos v. United States, 328 U.S. 750, 765 (1946).

38

See Wilson-Bey v. United States, 903 A.2d 818, 840 (D.C. 2006) (en

banc) (“[A] co-conspirator who does not directly commit a substantive offense

may nevertheless be held liable for that offense if it was committed by another co-

conspirator in furtherance of the conspiracy and was a reasonably foreseeable

consequence of the conspiratorial agreement.”) (internal quotation marks omitted).

29

B. Forfeiture by Wrongdoing

Israel and Jenkins also challenge the admission of the out-of-court

statements of Evans pursuant to the forfeiture-by-wrongdoing doctrine. Under that

doctrine, “a defendant forfeits his Sixth Amendment right to be confronted by a

witness against him, as well as his objection to the introduction of hearsay, if he

wrongfully procured the unavailability of that witness with the purpose of

preventing the witness from testifying.”39 Moreover, “if the defendant conspired

with another to prevent the witness from testifying, forfeiture ensues whether it

was the defendant himself or another co-conspirator who made the witness

unavailable—so long as the actor‟s misconduct „was within the scope of the

conspiracy and reasonably foreseeable to the defendant.‟”40 To invoke the doctrine

successfully, “„the government need only establish the predicate facts [to the trial

judge‟s satisfaction] by a preponderance of the evidence.‟”41

39

Roberson v. United States, 961 A.2d 1092, 1095 (D.C. 2008) (citing Giles

v. California, 554 U.S. 353, 366 (2008), and Devonshire v. United States, 691 A.2d

165, 168-69 (D.C. 1997)).

40

Roberson, 961 A.2d at 1095 (quoting United States v. Carson, 455 F.3d

336, 364 (D.C. Cir. 2006)); see also Gatlin v. United States, 925 A.2d 594, 599-

600 (D.C. 2007) (applying coconspirator liability principles in conjunction with the

forfeiture-by-wrongdoing doctrine).

41

Roberson, 961 A.2d at 1095-96 (quoting Devonshire, 691 A.2d at 169).

30

The trial court admitted Evans‟s hearsay statements under the forfeiture

doctrine after finding it more likely than not that Jenkins procured Evans‟s absence

in furtherance of appellants‟ conspiracy to render him unavailable to testify against

Israel. Appellants contend that the court violated the evidentiary restrictions

adopted in Butler by basing its finding of such a conspiracy, in part, on the

recorded jail calls and on the substance of Evans‟s hearsay statements. We

conclude that the court had a proper and sufficient basis to admit Evans‟s

statements under the forfeiture-by-wrongdoing doctrine.

The argument that the court should not have relied on the jail calls because

they were not admissible as coconspirator hearsay under Butler is pressed by

Israel. In our view, he doubly misapprehends our decision in that case. First, even

if we posit that the court was precluded from considering the out-of-court

statements in the calls for their truth, Butler did not prevent the court from making

legitimate non-hearsay use of those statements—just as it did not prevent the jury

from doing so, as we have held. For the purpose of determining the admissibility

of Evans‟s statements under the forfeiture-by-wrongdoing exception, the court was

31

allowed to rely on the jail calls as verbal acts manifesting appellants‟ involvement

in a conspiracy to silence Evans.42

In view of that conclusion, if the trial court considered any of the recorded

statements for their truth in ruling on the availability of the forfeiture exception, we

think it would have been harmless error at worst. But we are not persuaded it

would have been error at all. As a general proposition, a trial court is permitted to

rely on hearsay (whether or not it falls within a recognized exception) in ruling on

the admissibility of evidence, “even where (as in this case) the question concerns

the defendant‟s constitutional rights.”43 Butler carved out a narrow exception to

42

To be sure, as previously discussed, Butler‟s independent evidence

requirement barred the trial court from relying in any way on statements in the jail

calls in determining whether those statements themselves were admissible as

coconspirator hearsay. But the court‟s consideration of the jail calls in ruling on

the admissibility of Evans‟s statements did not violate the independent evidence

requirement—the jail calls were independent of Evans‟s statements.

43

Roberson, 961 A.2d at 1096 (citing, inter alia, United States v. Matlock,

415 U.S. 164, 172-75 (1974), and Fleming v. United States, 923 A.2d 830, 835

(D.C. 2007)). As the Supreme Court pointed out in Bourjaily, allowing

consideration of hearsay in rulings on admissibility of evidence is justified by “two

simple facts of evidentiary life”:

First, out-of-court statements are only presumed

unreliable. The presumption may be rebutted by

appropriate proof . . . . Second, individual pieces of

evidence, insufficient in themselves to prove a point, may

in cumulation prove it. The sum of an evidentiary

(continued…)

32

this principle that was limited to rulings on the admissibility of coconspirator

hearsay. We see no reason to think the court intended the exception to apply more

broadly, and, indeed, we are not aware that Butler‟s ban on considering even

independent hearsay has been expanded to govern rulings on the admissibility of

evidence in any other context.44 We do not see any justification for imposing such

a ban here.

Appellants‟ second objection is that relying on Evans‟s own statements to

support a finding of forfeiture by wrongdoing amounted to the kind of

“bootstrapping”—using hearsay to justify its own admission—that concerned the

Butler court in the context of coconspirator hearsay. We are not persuaded,

(continued…)

presentation may well be greater than its constituent

parts. Taken together, these two propositions

demonstrate that a piece of evidence, unreliable in

isolation, may become quite probative when corroborated

by other evidence. A per se rule barring consideration of

these hearsay statements during preliminary factfinding

is not therefore required.

483 U.S. at 179-80.

44

Similarly, we are not aware that any other jurisdiction that requires

coconspirator hearsay to be supported by independent evidence of the conspiracy,

see, e.g., footnote 30, supra, has insisted that only non-hearsay evidence may be

considered.

33

however, that the concern about bootstrapping mandates application of Butler‟s

logic to cases involving the doctrine of forfeiture by wrongdoing. Generally

speaking, it is appropriate and common for judges to consider the substance of

proffered hearsay together with independent evidence in determining whether a

hearsay exception is available;45 and this court has implicitly approved such

consideration in its forfeiture-by-wrongdoing cases.46 Courts in other jurisdictions

45

See e.g., Hallums v. United States, 841 A.2d 1270, 1276 (D.C. 2004)

(considering the content of the hearsay statement in deciding whether it is

admissible under the exception for present sense impressions); Jenkins v. United

States, 617 A.2d 529, 530 (D.C. 1992) (same for dying declaration exception to the

rule against hearsay); Durant v. United States, 551 A.2d 1318, 1324 (D.C. 1988)

(same for business records exception to the rule against hearsay); Watts v. Smith,

226 A.2d 160, 162-63 (D.C. 1967) (same for excited utterance exception to the rule

against hearsay).

46

See e.g., Crutchfield v. United States, 779 A.2d 307, 327 (D.C. 2001)

(upholding applicability of forfeiture doctrine when the trial court assessed the

missing witness‟s testimony as well as substantial independent evidence to

determine that the witness‟s testimony was admissible); Devonshire v. United

States, 691 A.2d 165, 167 (D.C. 1997) (same).

34

have done likewise.47 There are good reasons to allow it, as discussed in

Bourjaily,48 and we perceive no principled reason to forbid it per se.

In the case now before us, the trial court did not rest its finding of a

forfeiture by wrongdoing solely on the statements of the missing witness. Rather,

and appropriately, the court considered those statements in conjunction with other,

independent evidence indicating that appellants conspired to render the witness

unavailable to preclude him from testifying.49 We hold that the court did not err by

47

See Davis v. Washington, 547 U.S. 813, 833 (2006) (“Moreover, if a

hearing on forfeiture is required, [The Supreme Judicial Court of Massachusetts],

for instance, observed that „hearsay evidence, including the unavailable witness‟s

out-of-court statements, may be considered.‟”) (citing Commonwealth v. Edwards,

830 N.E.2d 158, 174 (Mass. 2005)); Vasquez v. People, 173 P.3d 1099, 1105

(Colo. 2007) (“Because the defendant‟s possible forfeiture of his confrontation

rights is a preliminary question going to the admissibility of evidence . . . the

determination shall not be bound by the rules of evidence except those with respect

to privileges. Thus hearsay evidence, including the unavailable witness‟s out-of-

court statements, will be admissible.”); People v. Stechly, 870 N.E.2d 333, 353 (Ill.

2007) (citing Davis for the proposition that hearsay evidence can be used to justify

its own admission in the forfeiture-by-wrongdoing context); see also Aaron R.

Petty, Proving Forfeiture and Bootstrapping Testimony After Crawford, 43

WILLAMETTE L. REV. 593, 615-16 (2007) (“Other courts have not found

independent evidence necessary for a finding of forfeiture.”).

48

See footnote 43, supra.

49

Thus, we are not presented with an instance of “pure” bootstrapping in

which the testimony of the missing witness is the only evidence supporting

forfeiture, and we do not hold that such “pure” bootstrapping would be

appropriate.

35

considering Evans‟s out-of-court statements in determining whether appellants

forfeited their Confrontation Clause and hearsay objections to their introduction at

trial.

Accordingly, we review the court‟s factual finding that appellants procured

Evans‟s unavailability to prevent him from testifying for clear error and its

ultimate decision to admit Evans‟s statements for abuse of discretion. The finding

that Jenkins and Israel conspired with the specific intent to prevent Evans from

testifying was not clearly erroneous. There was ample evidence, including the

recorded jail calls and Jenkins‟s actions on the night Evans was last seen, that

appellants conspired to kill Evans. As to their purpose, Evans‟s statement to

Robertson that Jenkins had confronted him in Adams Morgan about snitching on

Israel, in conjunction with Israel‟s awareness (after speaking with Detective

Credle) that he was the main suspect in the Columbia Road shootings and the

testimony that Evans was present during the shootings and had identified Israel,

furnished a sufficient evidentiary basis for the court to find it more likely than not

that appellants intended to prevent Evans from testifying against Israel. No other

motive on their part for killing Evans was adduced. Finally, the evidence

supported a finding by a preponderance that it was Jenkins who was the cause of

Evans‟s absence: By his own admission Jenkins was tracking “Old Chizzie

36

Brown” (a/k/a Charlie Evans); he found Evans and went off with him only three

hours before Evans was killed; he was the person who was last seen with Evans;

his parents‟ SUV matched the description given by an eyewitness of the vehicle

that left the scene of Evans‟s murder; and expert testimony established that one of

the tires on the SUV could have left the tire print found at the scene. We conclude

that the court did not abuse its discretion in admitting Evans‟s testimony under the

forfeiture-by-wrongdoing doctrine.

Jenkins makes the further argument, however, that where, as here, the

defendant is on trial for killing the declarant, the judge‟s preliminary finding of the

defendant‟s guilt for purposes of applying the forfeiture-by-wrongdoing doctrine

violates due process by undermining the presumption of innocence and the judge‟s

objectivity. We do not agree. The equitable rationale of the forfeiture doctrine is

no less compelling when the issue is whether to admit hearsay statements of the

person whom the defendant is accused of having murdered to prevent his

testimony, and past decisions of this court and other courts have sanctioned

37

application of the forfeiture doctrine in just such circumstances.50 This does not

threaten the integrity of the trial. Judges often make preliminary determinations

that involve an assessment of the strength of the case against the defendant before

the ultimate issue is decided. They do so, for example, in ruling on the

admissibility of coconspirator hearsay in conspiracy cases and when deciding

whether to release a defendant prior to trial. These determinations neither prevent

the judge from presiding impartially over the case51 nor shift the burden of proof to

the defense; the prosecution retains the burden of proving the defendant‟s guilt

50

See Devonshire v. United States, 691 A.2d 165, 166-68 (D.C. 1997); see

also, e.g., Giles v. California, 554 U.S. 353, 374 n.6 (2008) (Scalia, J. concurring)

(“We do not say, of course, that a judge can never be allowed to inquire into guilt

of the charged offense in order to make a preliminary evidentiary ruling. That

must sometimes be done under the forfeiture rule that we adopt—when, for

example, the defendant is on trial for murdering a witness in order to prevent his

testimony.”); State v. Meeks, 88 P.3d 789, 794 (Kan. 2004) (“If the trial court

determines as a threshold matter that the reason the victim cannot testify at trial is

that the accused murdered her, then the accused should be deemed to have

forfeited the confrontation right, even though the act with which the accused is

charged is the same as the one by which he allegedly rendered the witness

unavailable.”) (internal quotation marks omitted), overruled on other grounds by

State v. Davis, 158 P.3d 317 (Kan. 2006).

51

In re Evans, 411 A.2d 984, 995 (D.C. 1980) (bias does not result from a

“judicial determination derived from evidence and lengthy proceedings before the

court.”); see also, e.g., United States v. Lentz, 524 F.3d 501, 530-31 (4th Cir. 2008)

(holding that, in determining that the defendant had procured the victim‟s death

and thereby forfeited his objections to the admission of her statements, the “court,

using a preponderance of the evidence standard, made the necessary factual

findings to determine the evidentiary question before it and, in doing so, did not

exhibit such „favoritism‟ or antagonism as to make fair judgment impossible”).

38

beyond a reasonable doubt.52 Therefore, we reject Jenkins‟s contention that the

forfeiture doctrine is used improperly when its application requires the judge to

make a threshold determination regarding the defendant‟s culpability for the crime

for which he stands trial.

C. Evidence of the Chapin Street Shooting

Israel claims that the trial court abused its discretion53 in admitting the

evidence of his involvement in the uncharged Chapin Street murder; he argues that

this was impermissible propensity evidence and that it was significantly more

prejudicial than probative. We conclude that this evidence was properly admitted

and used for the limited purposes of proving the identity of the perpetrator of the

Columbia Road shootings and establishing that Israel was in possession of the

weapon used in those shootings.

52

See also People v. Giles, 152 P.3d 433, 445 (Cal. 2007) (“The

presumption of innocence and right to jury trial will not be infringed [by a

determination that the forfeiture doctrine applies] because the jury „will never learn

of the judge‟s preliminary finding‟ and „will use different information and a

different standard of proof to decide the defendant‟s guilt.‟”), vacated on other

grounds sub nom. Giles v. California, 554 U.S. 353 (2008).

53

See Jones v. United States, 27 A.3d 1130, 1143 (D.C. 2011).

39

While evidence of an uncharged crime is inadmissible for the purpose of

proving the defendant‟s criminal disposition, it may be admissible when offered

for some “substantial, legitimate purpose.”54 Proof of identity, where the identity

of the perpetrator of the charged offense is in dispute, is one such non-propensity

purpose.55 Other crimes evidence may be probative of identity where there exists

“a reasonable probability that the same person committed both crimes due to the

concurrence of unusual and distinctive facts relating to the manner in which the

crimes were committed.”56 We have held that this may be shown by evidence that

the same weapon or other instrumentality was used in both crimes. 57 In addition,

as pointed out in Jones, proof that the defendant possessed the weapon (or

instrumentality) in question may be admissible on the related, but distinct, ground

that it is “direct evidence” of the defendant‟s complicity in the offense for which

54

Drew v. United States, 331 F.2d 85, 89-90 (D.C. Cir. 1964).

55

Jones, 27 A.3d at 1143.

56

Drew, 331 F.2d at 90 & n.11.

57

See Jones, 27 A.3d at 1145-47 (D.C. 2011) (upholding admission in

prosecution for murder of evidence that the defendant committed an uncharged

armed robbery in which the murder weapon was employed).

40

he is on trial.58 The special procedural requirements that ordinarily must be met

for the admission of other crimes evidence under Drew, such as the requirement

that the uncharged offense be proved by clear and convincing evidence, do not

apply to such direct evidence of the defendant‟s guilt.59 The court still may

exclude the evidence, though, if it finds that its probative value is outweighed

substantially by the risk of unfair prejudice.60

In this case, ballistics evidence established that the gun used in the shootings

on Columbia Road was used just eight days earlier in the shooting on Chapin

Street. There was a single attacker in each incident. From the fact that the same

weapon was used in two such events so close in time, a reasonable trier of fact

could infer that the same person was the shooter in both of them. The

government‟s evidence—the strength of which is not challenged in this appeal—

that Israel was the shooter on Chapin Street therefore was admissible under the

58

Id. at 1146 (citing Busey v. United States, 747 A.2d 1153, 1165 (D.C.

2000)); see also Johnson v. United States, 683 A.2d 1087, 1096-97 (D.C. 1996) (en

banc).

59

Jones, 27 A.3d at 1146-47; see Johnson, 683 A.2d at 1098 (stating that

“Drew does not apply” to other crimes evidence that is, inter alia, “direct and

substantial proof of the charged crime”).

60

Jones, 27 A.3d at 1147; see generally Johnson, 683 A.2d at 1098-1100.

41

twin rationales that it was probative of Israel‟s identity as the perpetrator of the

Columbia Road shootings and direct evidence that Israel possessed the murder

weapon and was guilty of the crimes for which he was on trial.

Whether the danger of unfair prejudice to Israel from introducing the

uncharged Chapin Street murder substantially outweighed its probative value was a

question committed to the discretion of the trial court, “and we owe a great degree

of deference to its decision.”61 We cannot conclude that the court abused that

discretion. Evidence of an uncharged murder undeniably has a prejudicial impact,

but unfair prejudice is minimized where the evidence is admitted for a valid

purpose and has substantial probative value, the prosecution does not present or

argue it improperly, and the court correctly instructs the jury on the permissible use

it may make of the evidence. Those conditions were satisfied here. Israel‟s claim

that the government exploited the evidence to prejudice the jury against him is not

supported by the record. The prosecutor took care not to invite improper

propensity implications, but rather highlighted the legitimate identity inferences,

arguing that the same murder weapon was used only a week before the second

shooting in the same manner, and that “those similarities . . . prove[] to you that

61

Johnson, 683 A.2d at 1095.

42

it‟s the same shooter.” The trial court instructed the jury that it could use the

Chapin Street evidence only for its value as proof of identity, and not for any other

purpose, such as “to conclude that Mr. Israel has a bad character or criminal

propensity.” On the record before us, we do not find undue prejudice.

D. Interpretation of Jail Calls

Jenkins makes various claims related to the government‟s use and

interpretation of the recorded jail phone calls. He complains of the court‟s refusal

to require the government to disclose its “translations” of the calls prior to trial and

argues that the court erred in allowing lay witnesses and the prosecutor to interpret

the calls in the absence of expert testimony as to the meaning of what was said in

them.

Prior to trial, Jenkins filed a “decoding motion” requesting that the

government be ordered to disclose in advance of trial how it interpreted the opaque

language used in the jail calls. The trial court denied the motion on the ground that

there was no law or rule requiring the government to provide such information in

discovery. We agree with that ruling. What appellant calls the government‟s

interpretation of the conversations (most of which involved Jenkins himself) was

43

not exculpatory evidence,62 nor was it contained in any discoverable document63 or

the anticipated testimony of any expert witness.64 It was, essentially, prosecution

work product—the government‟s view as to the permissible inferences to be drawn

from conversation—which Criminal Rule 16 (a)(2) specifically exempts from

discovery.65 We therefore reject Jenkins‟s discovery argument.

At trial, the government presented lay witness testimony bearing on the

meaning of certain words and phrases spoken in the jail calls. Notably, this

included Vanessa Thomas‟s testimony that the phrase “off the water” (which

Jenkins used to describe “Old Chizzie Brown”) referred to smoking or being

62

See Brady v. Maryland, 373 U.S. 83, 87 (1963).

63

See Super. Ct. Crim. R. 16 (a)(1)(C), (D).

64

See id. R. 16 (a)(1)(E).

65

Super. Ct. Crim. R. 16 (a)(2) (“Except as provided in subparagraphs

(a)(1)(A), (B), (D), and (E), this Rule does not authorize the discovery or

inspection of reports, memoranda, or other internal government documents made

by the attorney for the government or any other government agent investigating or

prosecuting the case.”).

44

addicted to PCP.66 It was no abuse of discretion to admit this testimony. A lay

witness with personal knowledge about particular slang properly may testify to its

meaning.67 As we have explained, when “the reasoning process . . . employed to

interpret the street language was the everyday process of language acquisition” as

opposed to “special training or scientific or other specialized or professional

knowledge,” opinion testimony explaining such language does not veer

impermissibly into expert testimony.68 There is no question that the witnesses in

this case who “translated” the jail call slang were personally acquainted with

appellants or Evans and were members of the milieu in which the slang was used.

Thomas, in particular, testified that she was familiar with the use of PCP in her

community and had personal knowledge from her daily life that “off the water”

66

Jenkins also argues that it was improper for George Haynes to testify to

the meaning of “I need some ink,” “hammer,” and “I got to get on top of that.”

Insofar as Jenkins is concerned, this testimony was tangential and innocuous. The

statements about “ink,” which Haynes testified meant money, and “hammer,”

which he testified meant a gun, were not relevant to the charges of conspiracy or

obstruction, and the prosecutor did not mention either term in closing. “I got to get

on top of that” was a comment made by Pierre Chaney. Its meaning was obvious;

Haynes‟s exegesis (“You got to take care of something”) added nothing.

67

See United States v. Smith, 640 F.3d 358, 365 (D.C. Cir. 2011).

68

King v. United States, 74 A.3d 678, 682-83 (D.C. 2013).

45

referred to PCP use or addiction.69

Lastly, in closing argument the prosecutor argued that the jail calls

manifested appellants‟ conspiracy to eliminate Evans. In particular, the prosecutor

urged the jury to infer that Evans was the person whom the speakers referred to as

“Chizzie Brown” and similar names. We do not agree with Jenkins that the

prosecutor thereby presented herself as an expert or argued inferences without

foundation in the record. In closing argument, a prosecutor may make “reasonable

comments on the evidence and may draw inferences that support the government‟s

theory of the case” so long as those inferences are not “unsupported by the

evidence.”70 This is so even though the evidence may be ambiguous. In Mason v.

United States, for example, we acknowledged that the defendant‟s recorded phone

calls from the jail “appeared to have been quite cryptic” and that their “probative

value [was] not readily apparent.”71 The government and the defense disagreed as

to what the conversations meant and whether they were inculpatory. Nonetheless,

69

Similarly, Haynes testified that he and Israel had employed code words

during phone conversations they knew to be recorded, and that he was familiar

with Israel‟s vernacular.

70

Lewis v. United States, 996 A.2d 824, 832 (D.C. 2010).

71

53 A.3d 1084, 1100 (D.C. 2012) (internal quotation marks omitted).

46

we held that because “[t]he government offered the jury plausible interpretations of

the calls,” the trial court did not abuse its discretion in determining that “the

resolution of these ambiguities was best left for the jury.”72

Here, too, while the phone calls may have been ambiguous, there was a

sufficient evidentiary basis to support the government‟s interpretation. That

Jenkins meant Evans when he spoke of “Chizzie Brown” who was “off that water”

was supported, for example, by (1) the testimony that Evans was known as

“Charlie Brown,” (2) Vanessa Thomas‟s explication that “off the water” referred to

PCP use or addiction, and (3) the testimony of Evans‟s friends that he was addicted

to PCP and last seen going to buy it with Jenkins. The identification was further

corroborated by Jenkins‟s statement that he “had him . . . up in Adams Morgan”

and Macey Robertson‟s testimony that Evans told her he had been confronted by

Jenkins there; and by Jenkins‟s assurance to Israel about “this weekend” just

before the weekend Evans was killed. In light of this and other evidence, the

prosecutor did not present herself as an expert on slang, but simply argued the

permissible inferences.

72

Id.

47

E. Joinder and Severance

Israel argues that the charges relating to the shootings on Columbia Road

were misjoined under Criminal Rule 8 (b)73 with the charges relating to Evans‟s

murder, and that the court abused its discretion under Criminal Rule 14 74 by

refusing to sever his trial from that of Jenkins because their defenses were

irreconcilable.75 Neither claim has merit. The joinder was proper under Rule 8 (b)

because the charged offenses bore a sequential relationship to each other—Evans

was allegedly murdered to silence him and obstruct justice because he had

witnessed Israel commit the Columbia Road shootings.76 Indeed, even if the two

sets of charges had been tried separately, evidence of each would have been

73

Super. Ct. Crim. R. 8 (b).

74

Super. Ct. Crim. R. 14.

75

Israel does not pursue on appeal the argument he made in the trial court

that he was prejudiced because the joint trial prevented him from calling Jenkins as

a witness to testify on his behalf.

76

See Ward v. United States, 55 A.3d 840, 851 (D.C. 2012); Ball v. United

States, 26 A.3d 764, 767-68 (D.C. 2011).

48

relevant and admissible in a trial of the other.77 And appellants‟ defenses were not

in conflict; each appellant claimed he had nothing to do with any of the crimes and

neither blamed nor contradicted the other.78

F. Sufficiency of the Evidence

Jenkins argues that the evidence was insufficient to sustain his convictions

for conspiracy, obstruction of justice, and CPWL. Viewing the evidence, as we

must, in the light most favorable to upholding the jury‟s verdict,79 we agree only to

the extent that we find there was insufficient evidence to convict Jenkins of

CPWL.

77

The evidence of Israel‟s commission of the shootings on Columbia Road

would have been probative of his motive to kill Evans and render him unavailable

to testify against him, and the evidence of Israel‟s participation in the conspiracy to

kill Evans would have been relevant to show consciousness of guilt with respect to

the Columbia Road incident. See Ford v. United States, 647 A.2d 1181, 1184 n.5

(D.C. 1994) (“[E]vidence of each joined offense would be admissible in a separate

trial of the other” when the evidence “reflect[s] consciousness of guilt about the

other charges.”); Hazel v. United States, 599 A.2d 38, 42 (D.C. 1991) (evidence of

the other crimes properly admitted under the motive exception to Drew).

78

See McCoy v. United States, 760 A.2d 164, 185 n.28 & n.29 (D.C. 2000).

79

Sutton v. United States, 988 A.2d 478, 482 (D.C. 2010).

49

The conspiracy and obstruction of justice charges required the government

to prove, in essence, that Jenkins plotted to prevent Evans from assisting the police

and testifying with respect to the Columbia Road shootings, and that Jenkins killed

Evans to accomplish that goal. The jury had ample evidence to find the

government had met its burden of proof. To recapitulate, the evidence showed that

Evans in fact had been cooperating with the investigation of the shootings, that this

was no secret, and that Jenkins had pulled a gun on Evans and accused him of

“snitching” on Israel. Moreover, the jury reasonably could understand Jenkins‟s

recorded phone conversations with Israel to reveal that Jenkins and Israel had

plotted to prevent Evans from being a witness against Israel. The evidence further

proved that Jenkins was the last person seen with Evans, that they went off

together just a few hours before Evans was murdered, and that his murderer left the

scene of the crime in a vehicle that looked like Jenkins‟s SUV. Forensic analysis

of the tire tracks left at the scene of the murder added to the likelihood that

Jenkins‟s vehicle was involved. While the evidence was circumstantial, and

“direct or physical evidence” (as Jenkins puts it) was lacking, that did not render

the government‟s proof insufficient; nor was the government obliged to disprove

every possible theory of innocence that Jenkins put forward.80 Finally, the fact that

80

Smith v. United States, 809 A.2d 1216, 1221 (D.C. 2002).

50

the jury hung with respect to the first-degree murder charge does not impeach his

conviction for obstruction, even assuming the two outcomes are not easily

reconciled.81

We do not find sufficient evidence to uphold Jenkins‟s conviction for

carrying a pistol without a license,82 however. The government argues that the

evidence permitted the jury to infer that Jenkins participated in the armed murder

of Evans and therefore carried a firearm at that time, and it is uncontested that

Jenkins was unlicensed, but that does not end the inquiry. To convict Jenkins of

CPWL, there needed to be proof that the firearm Jenkins carried was a “pistol,” a

statutorily-defined term meaning that the firearm‟s barrel had to be less than 12

inches in length.83 The government presented no evidence that the firearm was a

pistol; it was not recovered, no witness professed to have seen it, and no forensic

evidence shed light on the nature of the firearm used to kill Evans. Consequently,

Jenkins‟s conviction for CPWL must be reversed for insufficiency of the evidence.

81

See Whitaker v. United States, 617 A.2d 499, 503 (D.C. 1992) (noting

that conviction for possession of a firearm during a crime of violence may stand

even though the jury deadlocked on the predicate charge of assault with a

dangerous weapon.)

82

See former D.C. Code § 22-4504(a) (2001).

83

See former D.C. Code § 22-4501(a) (2001).

51

G. Sentencing

Lastly, Jenkins argues that the court impermissibly relied on findings

unsupported by the evidence to impose a harsher sentence than would otherwise

have been called for by the voluntary sentencing guidelines. Specifically, Jenkins

complains of the court‟s findings that his offense was particularly egregious

because it involved the murder of a witness, and that Evans was a particularly

vulnerable victim due to his PCP addiction and because he had “given up” and was

emotionally unstable.

“A judge has wide latitude when conducting a sentencing hearing, and may

rely on evidence not admissible during trial,” as long as such evidence is reliable. 84

If the sentence is within the statutory maximum, as it is here, it is “unreviewable

except for constitutional concerns.”85 The only constitutional claim Jenkins makes

is that the court, in violation of due process, made baseless assumptions and relied

on mistaken information in making the aforementioned findings.86 There was,

84

Wallace v. United States, 936 A.2d 757, 780 (D.C. 2007) (citations

omitted).

85

Saunders v. United States, 975 A.2d 165, 167 (D.C. 2009); Greene v.

United States, 571 A.2d 218, 221-22 (D.C. 1990).

86

See Wallace, 936 A.2d at 780.

52

however, sufficient evidentiary support for each of them. As discussed above,

there was ample evidence that Jenkins was involved in Evans‟s murder, and the

jury so found in convicting him of obstruction of justice. That the jury hung on the

murder count was a non-event that does not affect the validity of the judge‟s

determination. There also was reliable evidence that Evans was addicted to PCP;

notably, his friends testified that on the day of his death, Evans went off with

Jenkins to buy PCP despite his fear of Jenkins. Lastly, Evans‟s friends and sister

testified that he seemed depressed and had been saddened by the recent death of a

close friend. Accordingly, we reject Jenkins‟s claim of error in the court‟s

sentencing decision.

III.

For the foregoing reasons, we reverse Israel‟s conviction for obstruction of

justice and Jenkins‟s conviction for carrying a pistol without a license, and we

affirm appellants‟ convictions on all other counts.

So ordered.