# Bost v. United States

> District of Columbia Court of Appeals · February 15, 2018 · 178 A.3d 1156

URL: https://www.frixlaw.com/law-library/cases/4245274

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** February 15, 2018
- **Citations:** 178 A.3d 1156
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4245274

## How later opinions describe it (automated extraction)

- finding that the prosecutor’s improper comments were not severely prejudicial, as they were made in a “long closing argument, after a long trial, and they were not related to the evidence in the case”

## Opinion text

2

Stephen F. Rickard, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, Michael D. Brittin, and T. Anthony Quinn, Assistant
United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, * FISHER, Associate Judge, and
FERREN, Senior Judge.

BLACKBURNE-RIGSBY, Chief Judge: Following an extended months-long

joint jury trial, appellants Robert Bost, Jeffrey Best, Sanquan Carter, Orlando

Carter,1 and Lamar Williams were each convicted of participating in at least one of

two separate, but related conspiracies to commit murder that in total left five dead

and eight injured. Specifically, Best, Sanquan, and Orlando were found guilty of

murdering Jordan Howe and injuring two others on March 22, 2010, in retaliation

for the theft of Sanquan’s bracelet (“first conspiracy”). 2 On March 23, 2010, to

avenge Howe’s murder, Howe’s half-brother, Marquis Hicks, along with three

friends, shot Orlando. In retaliation for Orlando’s shooting, Bost, Orlando, Best,

*
Chief Judge Blackburne-Rigsby was an Associate Judge at the time of
argument. Her status changed to Chief Judge on March 18, 2017.
1
Sanquan Carter and Orlando Carter are brothers. For clarity, this opinion
will refer to Sanquan Carter as “Sanquan” and Orlando Carter as “Orlando.”
2
The government charged Williams with involvement in the first
conspiracy to kill Howe, but the jury acquitted him of those charges. In addition to
Howe’s murder, the shooting wounded juvenile V.K.M. and Tavon Lambert.
3

and Williams conspired to murder Howe’s friends (“second conspiracy”). 3 On

March 30, 2010, Bost, Orlando, and Best murdered Tavon Nelson for his firearm

and then the three co-conspirators, with assistance from Williams, conducted a

drive-by shooting on the 4000 block of South Capitol Street, Washington, D.C.,

where some of Howe’s friends had gathered in Howe’s remembrance. The

shooting left three dead and six wounded.4

In their consolidated appeals, appellants — both jointly and individually —

allege that several errors occurred during the course of their joint jury trial. For the

forthcoming reasons, we affirm the judgments of the Superior Court. In light of

the length of this opinion, we set forth below the following table of contents as an

aid to the reader.

3
By the time of the second conspiracy, the police had already arrested
Sanquan in connection with Howe’s murder.
4
Specifically, Brishell Jones, Devaugn Boyd, and William Jones were
killed, Kevin Attaway was grievously injured, and Jamal Blakeney, Ra’Shauna
Brown, JaBarie Smith, Darrick Lanier, and Tierra Brown were injured.
4

Table of Contents

I. Factual Background ..................................................................................... 5

A. First Conspiracy: Alabama Avenue Shooting ................................ 5

B. Retaliatory Shooting of Orlando ...................................................... 9

C. Second Conspiracy: Murder of Tavon Nelson and South Capitol
Street Shooting.................................................................................... 10

D. Government’s Evidence of the Crimes ......................................... 13

E. Convictions and Sentences ............................................................. 18

II. Pretrial Issues ........................................................................................... 19

A. Change of Venue ........................................................................... 19

B. Joinder and Severance.................................................................... 26

III. Issues Arising During Trial..................................................................... 50

A. Prosecutor’s Statements During Opening and Closing ................. 50

B. Technical Issues with Husher ........................................................ 62

C. Statements Against Penal Interest.................................................. 69

D. Withdrawal From Conspiracy Jury Instruction ............................. 83

E. Other Issues .................................................................................... 87

IV. Juror’s Note............................................................................................. 90

V. Best’s Ineffective Assistance of Counsel Claim ...................................... 98

VI. Conclusion …………………………………………………………….116
5

I. Factual Background

A. First Conspiracy: Alabama Avenue Shooting5

On the night of March 21, 2010, Sanquan was at a party with a group of

acquaintances, including Andre Morgan and Jordan Howe, who were godbrothers,

in the basement apartment of Jam’ya Wilkins, located at 1333 Alabama Avenue,

Southeast, Washington, D.C. At the party, Sanquan showed off his fake diamond

bracelet to numerous individuals, including Howe. After the party, Sanquan

realized that his bracelet had been stolen. He became upset and rampaged through

Wilkins’s apartment looking for the bracelet, which he suspected that one of the

men at the party had stolen. Sanquan, with assistance from Morgan, then went to

find Howe at Howe’s apartment, where Sanquan confronted Howe about the

bracelet. In response, Howe told Sanquan, “[M]an, nobody got that fake bracelet,

not nobody,” and Sanquan responded, “[Y]’all motherfu**ers playing. Y’all need

to come up with the bracelet.” Morgan and Sanquan then attempted to find and

confront the other men at the party, but were unable to locate them. Undeterred,

5
A majority of the facts pertaining to the commission of both conspiracies
came from the testimony of co-conspirator Nathaniel Simms, who admitted
participation in the relevant shootings and served as a witness on behalf of the
government, pursuant to a plea agreement.
6

on his way back to the apartment building on Alabama Avenue, Sanquan called his

older brother Orlando and told him that he had been robbed and to “bring

everything.”

When Sanquan called, Orlando was with his friend, Nathaniel Simms, in a

silver Kia Spectra, which belonged to Simms’s girlfriend, Brittany Young.

Orlando told Sanquan on the phone, “[W]e about to be on our way up there” and

he then told Simms that Sanquan had just been robbed and that they needed to pick

up their other friend, Best, to ride with them to meet Sanquan. Simms and Orlando

first went to the home of Orlando’s godmother, Shiree Little, where Orlando

picked up his AK-47 rifle, and afterwards, they picked up Best from his home.

The three men then went to Williams’s home, where Williams gave them Simms’s

.380 pistol and Williams’s shotgun. Orlando told the group, “[M]otherfu**ers

robbed my little brother[;] they going to see.” Best replied, “[O]h, yeah, I love this

sh**. I love this sh**.” Williams then showed Best how to use the shotgun. In

preparation for the encounter, Orlando switched from his bright red jacket into a

black jacket that was in the Kia’s trunk and Best also switched into another jacket.

Williams got out of the car before the men drove off toward 1333 Alabama

Avenue, Southeast.
7

When Simms, Orlando, and Best arrived at Alabama Avenue, Sanquan

approached the car and Orlando told him to “come on.” Sanquan replied, “You

think I brought [you] all the way over here for nothing?” Sanquan then took the

.380 pistol from Simms. Sanquan, Orlando, and Best approached the apartment

building where the party had occurred earlier and where numerous individuals who

had attended the party were still standing outside. Sanquan brandished the .380

pistol, Orlando brandished the AK-47, and Best held the shotgun, while Simms

remained in the car.

Sanquan held the individuals in front of the apartment at gunpoint while he

patted them down and demanded the return of his bracelet. After one of the

individuals refused to be patted down, Sanquan turned to Orlando and Orlando

asked Sanquan if he should, “Go ham?”, i.e., whether they should start shooting, to

which Sanquan replied, “Go ham.” The three men then started shooting at the

group indiscriminately. Sanquan fired all five rounds that had been in the .380

pistol, Orlando fired all twenty-eight rounds from the AK-47, and Best fired the

shotgun three times. During the shooting, Howe, who was in a car nearby, was hit

by a stray bullet and died, while two others, juvenile V.K.M. and Tavon Lambert,

were injured by the gunfire.
8

After seeing Howe’s body and realizing that Howe was dead, Morgan, who

had supported Sanquan up to that point but who was Howe’s godbrother, left the

scene vowing revenge on the Carter brothers. He immediately went to meet with

other friends and told them what had occurred, and they all formed an agreement to

murder Sanquan and Orlando in retaliation. Jordan Howe’s cousin, Kalisha Howe,

who had been present during the shooting, remained on the scene and identified

Sanquan that night to the police from a photograph. She also identified Orlando

from a nine-person photo array the following day, saying it “could be” him.

Wilkins, the woman who hosted the party in her basement apartment, also

identified Sanquan on the night of the shooting.

After the shooting, Simms drove Sanquan, Orlando, and Best to the

apartment of one of the Carter brothers’ relatives by marriage, Ronald Ray. At the

apartment, the men hid their weapons and boasted about the shooting. Sanquan

explained to the men what had happened before their arrival and complained that

he was given a gun with only five bullets. Best said that he was not sure if he had

successfully fired the shotgun, but thought he may have once. Orlando bragged

that he had shot Howe and shot at a “nosy” woman on the top floor of the
9

apartment building.6 After the discussion, Simms alone left Ray’s apartment. The

next day, while Simms was in the Kia with his girlfriend, Young, he met Orlando

and Best and allowed Orlando to get his red jacket and Best to get his black jacket

from the trunk of the car, all of which Young later testified to witnessing.

B. Retaliatory Shooting of Orlando

On March 23, 2010, police arrested Sanquan for his involvement in Howe’s

murder. Meanwhile, Morgan planned his retaliation for Howe’s murder with

Howe’s half-brother, Marquis Hicks, and two friends. Morgan and the three others

drove to Sixth and Chesapeake Streets, Southeast, a location where Orlando was

known to hang out, and recognized Orlando in his red jacket. Hicks approached

Orlando on foot and shot him, resulting in a graze to Orlando’s head and a bullet in

his shoulder. Best and Bost, who was another friend of Orlando’s, were present

during the shooting. At the hospital, Orlando told Best, Bost, and Simms that

Sanquan had been arrested, and that the guns had to be moved from Ray’s

apartment. Simms and Best moved the shotgun and the AK-47 from Ray’s

apartment to Williams’s apartment.

6
Ray subsequently identified Sanquan, Orlando, Best, and Simms from
separate nine-person photo arrays as the men who had arrived at his house late that
night.
10

C. Second Conspiracy: Murder of Tavon Nelson and South Capitol
Street Shooting

The next day, Simms and Best visited Orlando at his mother’s house, where

Orlando told them that he believed his shooter was one of Howe’s friends, and that

he wanted to attack Howe’s funeral in revenge (which was to take place on March

30). In conjunction with Simms, Best, Bost, and Williams, Orlando decided to

procure more guns and to rent a minivan for the shooting. On March 27, 2010,

Orlando, Simms, Best and Bost obtained a 9mm pistol from Orlando’s father and

Bost independently obtained a .45 pistol. Simms and Best bought and delivered

two boxes of ammunition to Williams. On March 29, Simms, Orlando and Best

tried three times to rent a minivan, but no one had sufficient credit to successfully

rent the minivan. Orlando then asked his godmother to rent the minivan from a

rent-a-car facility and, after two failed attempts, they successfully rented a silver

Chrysler Town & Country minivan at about 5:45 p.m. on March 30; however,

Howe’s funeral had already taken place by that time.

Undeterred, Orlando set into motion a new plan to shoot Howe’s relatives.

First, Orlando, Best, Bost, Simms, and Williams retrieved the firearms and

ammunition. Once the weapons were recovered and the co-conspirators were

driving in the van, however, Williams told the others, “Y’all about to go
11

commence. Y’all can let me out right here,” and he exited the van. Because they

only had three guns (AK-47, 9mm Glock, and .45 pistol) amongst the four of them,

Orlando drove to the Wingate Apartments to rob a man, Tavon Nelson, who he

knew carried a gun. Orlando sent Best and Bost to rob Nelson. Best took the 9mm

and Bost took the .45 and both wore masks rolled-up to the top of their heads. Best

and Bost attempted to rob Nelson and a shootout occurred at which Nelson was

killed. Bost admitted to his cohorts back at the van that he was the one who dealt

the killing blow, stating, “Yeah, [Best] hit him, but I finished him.” When Orlando

asked where the gun was, however, Best replied that it was left behind with

Nelson, which upset Orlando but he decided nonetheless to drive away without

Nelson’s gun. Police responded to the scene within minutes and a witness

informed them that, after the shooting, she saw a man run and enter a silver

Chrysler Town & Country minivan. Police recovered seven 9mm shell casings and

three .45 shell casings from the scene of Nelson’s murder.

Orlando then drove the van immediately to the 4000 block of South Capitol

Street, where many of Howe’s friends were gathered in a front yard, wearing

remembrance shirts from Howe’s funeral. Orlando drove up close to the crowd

and lowered the van’s windows. Orlando told the other men, “When I pull over,

have them guns hanging out the window.” All of the men then pulled down their
12

masks and began firing their weapons. As Orlando drove, Bost fired the .45 pistol

from the front passenger window, Simms fired the AK-47 from the rear passenger

window, and Best fired the 9mm Glock from both the rear passenger window and

the rear driver’s side window. Numerous individuals were shot.

Following the shooting, Metropolitan Police Department (“MPD”) Sergeant

Laswuan Washington and his partner, Sergeant Cowan, pursued the minivan

because it matched the lookout description officers had received from the witness

at the scene of Nelson’s murder. During the pursuit, Sergeant Washington caught

a glimpse of Orlando. As the police pursued the minivan, Simms threw the AK-47

out of one of the windows. Orlando then hit a police car in a nearby alley and all

four men jumped out of the van and started running in different directions. Officer

Christopher Dyke chased Orlando and Best and observed them both remove and

throw their jackets to the ground as they ran. When the two men split up, Officer

Dyke followed Orlando and caught him, while another officer recovered Best’s

jacket. Meanwhile, Simms, who had been running in a different direction, was

chased down by Officer Jeremy Bank and eventually surrendered. Officer Daniel

Egbert saw Bost flee from the van and pursued him, but was unable to catch him.

Best and Bost were both later apprehended by the police in connection with the

murders.
13

At the scene of the South Capitol Street shooting, the police found the dying

and injured victims “piled up on top of each other.” Brishell Jones, Devaughn

Boyd, and William Jones died from their injuries, while six others survived their

injuries, but one of whom suffered a severe brain injury.

D. Government’s Evidence of the Crimes

At the subsequent joint trial of the five co-defendants,7 the government

presented considerable evidence linking all five appellants to one or both of the

mass shootings. The government’s strongest evidence in proving its case,

included:

1. Testimonial Evidence

Testimony from Nathaniel Simms regarding both conspiracies: Simms

testified as a government witness to the events leading up to and during the three

shootings on Alabama Avenue, at the Wingate Apartment complex, and on South

Capitol Street. Simms testified that, around midnight on March 22, 2010, he,

7
While Simms was initially charged with the other co-defendants, he
agreed to act as a government witness pursuant to a plea deal, and his case was
severed from the others.
14

Orlando, and Best gathered firearms and drove to Alabama Avenue after learning

that Sanquan had been robbed. Simms testified that he stayed in the car, while

Orlando, Best and Sanquan approached a group on Alabama Avenue and opened

fire. With regard to the shooting on March 30 on South Capitol Street, Simms

testified that he, Orlando, Bost, and Best had planned to shoot Howe’s associates

in retaliation for the prior shooting of Orlando. He testified that, before the South

Capitol Street shooting, the four of them rode in a minivan to the Wingate

Apartment complex, where Bost and Best unsuccessfully attempted to rob Nelson

of his firearm. Simms further testified that he, Orlando, Bost and Best then rode to

South Capitol Street, where he, Bost, and Best all fired weapons into a crowd of

people wearing remembrance shirts for Jordan Howe.

Best’s confession to Martaraina Salazar: The government presented

testimony from Martaraina Salazar, Simms’s girlfriend, that, at about midnight on

the night of the South Capitol Street shooting, Best came to her home and picked

up a bag that Simms had left there. Salazar testified that Best later returned and, as

they smoked marijuana, he told her details of the shooting. He told her that Simms

shot the AK-47 while Bost shot the .45 pistol, that Orlando drove the van, and that

a girl had been shot in the head. Best also told Salazar that he hoped that Orlando

and Simms would not implicate him. Salazar testified to Best’s confession at trial.
15

Best’s confession to his mother and arrest: On April 22, 2010, police

executed a series of search warrants based in part on the information the officers

received from Simms. One of the searches was conducted at the home of Best’s

mother, Laverne Best. Best called and told his uncle about the search and his uncle

picked him up. Best denied any involvement in the shootings to his uncle, but was

crying and nervous. Best’s uncle urged him to turn himself in, but Best got out of

the car and ran away. Best’s mother Ms. Best, also spoke to Best on the phone and

urged him to turn himself in, but Best refused. On April 26, police located and

arrested Best. The police brought Ms. Best to the police station, where she, Best,

and a detective spoke in an interrogation room. Once the detective left the room,

Best and his mother had a private conversation, which was captured on video. Ms.

Best asked her son, “[Y]ou didn’t hurt no one, huh? . . . Did you? . . . Huh? . . . So

that’s true out there, huh? Huh?” There was a dispute as to whether Best nodded

in response, but the recording of the conversation demonstrated that Best did

appear to slightly lower his head and raise it back up, and then look at his mother

and move his head again. After this non-verbal response, she asked him, “What

for? Cause he shot Orlando?” Best then started crying, lowered his head again,

and asked his mother for a hug, and she responded, “Yea Jeffrey, but I don’t know

why you would do something like that . . . see what Orlando got you into.” At

trial, Ms. Best was shown the video of her conversation with her son, but she
16

testified that she had not seen her son nod his head or admit involvement. She was

impeached with her grand jury testimony, however, during which Ms. Best stated

that she had observed her son nod his head. 8

2. Forensic Evidence

Minivan: Police searched the minivan and recovered seven AK-47-type

casings. Inside the front of the van, police found Orlando’s cell phone, which

contained a text message from a number associated with Simms, stating “Funeral

on Tuesday.” A mask and a hat containing DNA mixtures, including Orlando’s

DNA, were recovered from between the front seats. A cigarette butt containing

Simms’s DNA was found near the rear passenger seat. A swab from the front

passenger side door of the minivan contained a single-source partial profile, from

which Bost could not be excluded. DNA testing, however, did not reveal Best’s

nor Williams’s DNA inside the minivan.

8
The government also presented Harry Graham, Best’s friend, as a rebuttal
witness. Graham testified that he was selling drugs in the area of Sixth and
Brandywine Streets on March 30, 2010, when police swarmed the area. He stated
that as he proceeded to leave the area in his car, he saw Best coming down Sixth
Street, Best was sweating, breathing hard, and not wearing a jacket. Best asked
Graham for a ride to his long-time girlfriend Sarah Proctor’s apartment. When
Graham asked Best about the gunshots, Best said he did not want to talk about it,
and they rode to Proctor’s apartment.
17

Clothing: A DNA sample from the jacket that Officer Dyke recovered

during the chase revealed a mixture of at least three individuals; while the

swabbing revealed no major contributor, the major contributor of the cutting

matched Best’s DNA. A mouth cutting and forehead cutting from the mask

recovered behind the church contained mixtures of at least two people’s DNA, of

which Bost was the major contributor.

Forensic evidence of the shell casings and bullets: Shell casings from the

.380 pistol that Sanquan fired were recovered from the scene of the Alabama

Avenue shooting. The AK-47 thrown during the chase following the South Capitol

Street shooting also matched the casings recovered from both the scene of the

Alabama Avenue shooting and the South Capitol Street shooting. The 9mm and

.45 caliber casings, recovered from the shooting of Tavon Nelson, were fired by

the same weapons that left casings at the South Capitol Street shooting.

3. Record Evidence

Phone Records: An analysis of appellants’ call records showed a web of

completed and attempted communications between all appellants (other than

Sanquan) in the months leading up to the South Capitol Street shooting on March
18

30, 2010. However, after the South Capitol Street shooting, Best, Bost, and

Williams continued communicating, but none of the three tried to call Orlando or

Simms. By April 3, 2010, all communications stopped amongst appellants’

phones.

E. Convictions and Sentences

On February 21, 2012, appellants were jointly tried for their involvement in

either one or both of the conspiracies.9 Following a three-month trial, on May 7,

9
Specifically, for involvement in the first conspiracy, Sanquan, Orlando,
Best, and Williams were charged with conspiracy, first-degree murder, assault with
intent to kill while armed (“AWIKWA”), and related charges for the March 22,
2010 shooting at 1333 Alabama Avenue, Southeast.

The indictment further alleged charges relating to the second conspiracy.
Specifically, the indictment stated that after Orlando was shot in retaliation for
Howe’s murder, Orlando, Best, Bost, and Williams conspired from March 23-30,
2010, to shoot attendees of Howe’s funeral. In order to obtain an additional
firearm for the shooting, on March 30, 2010, Orlando, Best, and Bost attempted to
rob Tavon Nelson of his firearm at the Wingate Apartment complex, resulting in
Nelson’s death. They each were charged with aggravated first-degree
premeditated and felony murder for Nelson’s murder. Immediately following
Nelson’s murder, Orlando, Best, Bost, and Williams conducted a drive-by shooting
on the 4000 block of South Capitol Street on March 30, 2010, leading to the deaths
of Brishell Jones, Devaugn Boyd, and William Jones, and injuries to Kevin
Attaway (grievously injured), Jamal Blakeney, Ra’Shauna Brown, JaBarie Smith,
Darrick Lanier, and Tierra Brown. For this second shooting, Orlando, Best, Bost,
and Williams were further charged with three counts of aggravated first-degree
premeditated murder, seven counts of AWIKWA, and related offenses.
(continued . . .)
19

2012, the jury convicted Sanquan, Orlando, Bost, and Best of all counts. Williams

was acquitted of any involvement in the first conspiracy regarding the Alabama

Avenue shooting, but was convicted of lesser-included second-degree murder

charges for his involvement in the second conspiracy related to the South Capitol

Street shooting. On September 11, 2012, Orlando, Bost, and Best were sentenced

to life imprisonment without release, Sanquan was sentenced to 54 years of

imprisonment, and Williams was sentenced to 30 years of imprisonment. These

consolidated appeals followed.

II. Pretrial Issues

A. Change of Venue

Orlando, joined by all appellants, argues that the trial court erred in denying

his motion for a change of venue to a federal court outside of the District of

Columbia, and that, in doing so, the trial court violated his constitutional right to a

fair trial.

(. . . continued)
Orlando was separately charged with assault on a police officer (“APO”)
while armed for ramming a police vehicle at the end of a high-speed chase
immediately following the South Capitol Street shooting.
20

1. Additional Factual Background

On January 19, 2012, Orlando filed a motion seeking a change of venue. He

claimed that because of the “pervasive and irremediable adverse local pretrial

publicity” regarding his charged role in the South Capitol Street murders, it was

impossible for him to receive a fair trial in the District of Columbia, and that the

Sixth Amendment required his case to be transferred to a federal district court

outside of Washington, D.C. Orlando claimed that Super. Ct. Crim. R. 20 (a)

authorizes a change of venue for such a purpose.10

10
Rule 20 (a) states in pertinent part:

When an indictment, information, or complaint is
pending in the Superior Court against a defendant who is
arrested, held, or present in another district, the
prosecution may be transferred to that district if:

(1) the defendant states in writing a wish to plead guilty
or nolo contendere and to waive trial in the District of
Columbia, consents in writing to the court’s disposing of
the case in the transferee district; and

(2) the United States attorneys in both districts approve
the transfer in writing.

(emphasis added).
21

The trial court summarily denied Orlando’s motion to change venue during a

pretrial hearing on January 27. The court later explained its decision on February

9, observing that the Court of Appeals already “has said that there is no ability for

change of venue in the District of Columbia,” and that “[m]ore . . . significantly”

the court was “confident [that it could] pick a fair jury” for the case. The record

reflects that the trial court conducted an extensive jury selection process that

spanned four days, and that during the voir dire, the court questioned the

prospective jurors regarding what, if anything, they had heard about the South

Capitol Street murders, including their exposure to any media coverage of the mass

shooting. Ultimately, of the selected jury, nine jurors did not recall media

coverage of the shooting, while three of the jurors 11 were exposed to only minimal

coverage such that the court and all of the defendants12 were confident that it

would not have an effect on the jurors’ ability to be fair and impartial. Further, the

trial court admonished the jury both during preliminary and final jury instructions

to avoid any outside publicity on the shooting and to decide the case based solely

on the evidence presented at trial.

11
Jurors 624, 064, and 490.
12
None of appellants’ counsel moved to strike these three jurors for cause,
sought further questioning, nor raise any objection to their selection.
22

2. Analysis

The trial court did not err in denying Orlando’s motion for a change of

venue because that relief is not available for cases tried before the Superior Court

of the District of Columbia.13 It is a fundamental Sixth Amendment right that

defendants are entitled to “a fair trial by a panel of impartial, ‘indifferent’ jurors,”

Welch v. United States, 466 A.2d 829, 834 (D.C. 1983) (quoting Irvin v. Dowd,

366 U.S. 717, 722 (1961)), and ordinarily a change of venue is “an appropriate

remedy” “[w]hen a threat to this constitutional protection is posed . . . .” Id.

However, because the Superior Court of the District of Columbia “sits as a single

unitary judicial district,” a change of venue is not available in the District of

Columbia. Id. (citing United States v. Edwards, 430 A.2d 1321, 1345 (D.C. 1981)

(en banc)). Accordingly, we have said that the trial court’s denial of a motion for a

change of venue is “required.” Id. Because it is a “fundamental” rule “in our

jurisdiction that ‘no division of this court will overrule a prior decision of this

court’” Washington v. Guest Servs., Inc., 718 A.2d 1071, 1075 (D.C. 1998)

13
The government contends that Orlando failed to preserve his request for a
change of venue by not objecting to the jurors that were impaneled. The
government also maintains that all of Orlando’s co-appellants, aside from Bost,
failed to explicitly join in Orlando’s written motion, and that they therefore cannot
join in Orlando’s claim on appeal. We need not decide whether plain error review
governs here because Orlando’s argument is meritless under any standard of
review.
23

(quoting M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971)) (footnote omitted),

absent en banc rehearing, the trial court’s denial of Orlando’s motion for a change

of venue was likewise “required,” in this case. Welch, supra, 466 A.2d at 834.

Further, Orlando’s constitutional right to a fair trial was not violated.14

“Appellant’s right to a fair trial by an impartial jury is not defeated . . . merely

14
Orlando argues that our precedent, though binding, is unconstitutional
under the Supreme Court’s decision in Groppi v. Wisconsin, 400 U.S. 505 (1971).
We see no such tension. In Groppi, the defendant was charged with a
misdemeanor and, because of “community prejudice,” sought to change the venue
of his trial from Milwaukee County to a different county in Wisconsin where he
claimed prejudice against him did not exist. Id. at 506. The trial court denied the
motion on the basis that Wisconsin law did not permit a change of venue for
misdemeanor cases. The Supreme Court reversed, holding that “under the
Constitution a defendant must be given an opportunity to show that a change of
venue is required in his case.” Id. at 511. The difference between Groppi and here
is that Wisconsin is a large state with multiple “venues” within the same
“jurisdiction,” whereas, again, in the District of Columbia, the Superior Court of
the District of Columbia “sits as a single unitary judicial district.” Welch, supra,
466 A.2d at 834. “Venue is to be distinguished from ‘jurisdiction,’ which refers to
the authority or power of the court to take action on a particular charge. . . . To say
that the judiciary has such jurisdiction, however, is not to say that every judicial
district within that judiciary is a proper locality [i.e., venue] for the prosecution of
that offense.” LaFave et al., Criminal Procedure, § 16.1 (a) (3d ed. 2014)
(emphasis added). Further, as Groppi emphasized, “[t]here are many ways to try
to assure the kind of impartial jury that the [Constitution] guarantees.” 400 U.S. at
509.

Orlando also claims that Super. Ct. Crim. R. 20 authorizes the Superior
Court to transfer his case to a federal court. His reliance on Rule 20 (a) is
misplaced. Rule 20 (a) only applies to defendants charged in Superior Court, but
arrested outside of the District of Columbia. The Rule specifies that such
(continued . . .)
24

because the requested remedy is unavailable.” Welch, supra, 466 A.2d at 834.

“Instead, other measures must be employed to assure that appellant’s right to a fair

trial is preserved.” Id. at 834-35. “[I]n the absence of extreme circumstances, the

Sixth Amendment inquiry [usually] turns on the adequacy of the voir dire.” Id. at

835 (citations omitted). In Welch, we explained:

[T]he test we apply in scrutinizing the effectiveness of
the voir dire examinations is not whether a juror had been
exposed to the facts and issues of the case nor whether he
or she has formed an opinion as to the guilt or innocence
of the accused but rather whether the nature and strength
of the opinion formed are such as to raise the
presumption of partiality.

Id. at 836. Key considerations in making this determination include the juror’s

own assertion of whether he or she “is able to lay aside his or her impressions” and

the trial court’s assessment of the juror’s demeanor, which is a decision

“particularly within the province of the trial judge.” Id. (citations and internal

quotation marks omitted).

(. . . continued)
defendants may plead guilty or nolo contendere to the charges in federal district
court and waive trial in the District of Columbia, so long as the United States
Attorneys in both districts approve the transfer in writing. Orlando, however, was
arrested and charged in the District of Columbia, and he elected to go to trial.
Accordingly, a change of trial venue was not available to him or his co-appellants.
25

Here, admittedly, the initial pretrial publicility surrounding the South Capitol

Street murders was high, which is not surprising given the number of casualties

involved. However, the record also demonstrates that the trial court carefully

ensured that appellants’ rights to a fair and impartial jury were protected through

the voir dire process. Jury selection took place over the course of four days and

each prospective juror was individually asked by the court about his or her

knowledge of the South Capitol Street murders. The government and defense

counsel for each appellant were given the opportunity to futher question and strike

jurors. The trial court also excused jurors who indicated that they may have been

influenced by media coverage.

In fact, it is noteworthy that, for such a high-profile case, of the twelve jurors

eventually selected, nine had no recollection of relevant media coverage and three

were exposed to only minimal coverage. All three jurors who were exposed to

some pretrial publicity expressly stated that it would not influence their decision.

Because we give weight to a juror’s own assertion of his or her ability to be

impartial and defer to the trial court’s assessment of a juror’s credibility, we hold

that the trial court’s safeguards during “voir dire served to protect the right to a fair

trial by an impartial jury.” Welch, supra, 466 A.2d at 837 (citations omitted). Our

conclusion is bolstered by appellants’ defense counsels’ failure to object to any of
26

the impaneled jurors, including the ones who had been exposed to some pretrial

publicity, and the fact that Orlando on appeal has not presented any evidence that

the jury was actually partial. See United States v. Haldeman, 559 F.2d 31, 60

(D.C. Cir. 1976) (en banc).

B. Joinder and Severance

Sanquan argues that, because he was only charged with participating in the

first conspiracy (the Alabama Avenue shooting), the trial court erred in joining his

case with his co-appellants’ charges stemming from the second conspiracy that led

to the South Capitol Street murders. Bost makes the same argument but in reverse;

he argues that because he was only charged with participating in the second

conspiracy, his case was misjoined with his co-appellants’ charges relating to the

first conspiracy. They each claim their individual case was prejudiced by the

joinder of the two conspiracies. Further, they both alternatively argue that the trial

court abused its discretion by refusing to grant their motions for severance.
27

1. Additional Factual Background

On April 20, 2011, the grand jury returned a superseding indictment that

explained the government’s theory of the case, including the causal relationship

between the first conspiracy and the second conspiracy. The indictment first

alleged that Sanquan, Orlando, Best, Williams, and Simms conspired “to assault

and kill individuals believed to be responsible for taking” Sanquan’s bracelet.

Pursuant to this first conspiracy, the conspirators hunted for the individuals that

Sanquan believed were responsible for the theft. Upon locating these individuals,

Sanquan and his cohorts assembled and searched them for the missing bracelet

and, when Sanquan could not find it, he became “infuriated” and told Orlando and

Best to shoot them. Howe was killed in the ensuing hail of gunfire that also

wounded V.K.M. and Lambert. Later, Howe’s godbrother, Morgan, half-brother,

Hicks, and two other friends shot Orlando in retaliation for Howe’s murder.

The indictment further alleged that Orlando, Best, Williams, Simms, and

Bost next conspired “to assault and kill friends and associates of Jordan Howe . . .

in retaliation for the shooting of Orlando Carter that occurred on or about March

23, 2010 . . . .” According to the indictment, Orlando “vowed to exact violent

revenge and, to that end, recruited co-conspirators” Best, Williams, Simms, and
28

Bost to assist him in killing “as many friends and associates of Jordan Howe as

they possibly could . . . .” The conspirators gathered as many firearms as they

could find and Orlando instructed Best and Bost to rob Tavon Nelson for his

firearm. Best and Bost then shot and murdered Nelson. The conspirators then

drove a rented minivan to the 4000 block of South Capitol Street, where Howe’s

friends and associates were congregated in remembrance of Howe, and fired

multiple weapons, leading to the death of three people and the wounding of six

others.

Based on the government’s theory of the case as articulated in the

indictment, Sanquan and Bost filed pretrial motions to declare misjoinder and,

alternatively, for severance.15 The government filed a consolidated opposition to

Sanquan’s and Bost’s motions, claiming principally that the joinder of the two

conspiracies was proper because the first conspiracy “logically” led to the second

conspiracy, and that the two conspiracies operated “so closely connected in time

and place” that there was substantial overlap of evidence. The trial court denied

15
Williams and Best also filed motions to declare misjoinder or,
alternatively, to grant severance, but their claims are not relevant for purposes of
this appeal. Williams was indicted for involvement in both the first and second
conspiracies and he was acquitted of all charges stemming from the first
conspiracy. Meanwhile Best sought only severance of a charge of unlawful
possession of a handcuff key while at the D.C. Jail, which the trial court granted.
29

Sanquan’s and Bost’s motions to declare misjoinder and grant severance on

January 6, 2012. The court later explained its reasoning during the pretrial hearing

on February 9, stating that joinder is proper under Super. Ct. Crim. R. 8 (b) “when

one offense leads logically to another,” such as “when the subsequent offense is a

sequel to the initial offense.”

Here, the court found the second conspiracy to commit murder was a sequel

to the first conspiracy to commit murder because the “killing of Jordan Howe was

the catalyst for the . . . retaliatory attempt on Orlando Carter’s life” that led

Orlando to conspire with others to embark on the murder of Nelson and the South

Capitol Street murders. The court further noted that Sanquan’s and Bost’s motions

for severance were “meritless” because they “have failed to rebut the strong

presumption in favor of a joint trial after the defendants and offenses were properly

joined.” Because there was a “substantial overlap of evidence with respect to the

two charged conspiracies,” the trial court explained, “severance would result in

significant prejudice to the [g]overnment and the substantial expenditure of

additional resources by the court.” The court cited examples of this overlap,

including: (1) “the relationship among the defendants”; (2) four individuals

(Orlando, Best, Williams, and Simms) are alleged to have participated in both

conspiracies; (3) the same AK-47 assault rifle was alleged to have been used in
30

both conspiracies; and (4) the motive for the second conspiracy “grew out of a

crime committed in retaliation for the first conspiracy.” Lastly, the court

emphasized that it was “confident that the case can be tried in a way that will

enable the jury to make individual determinations about the guilt or innocence of

each defendant.” Accordingly, the court explained that, in its preliminary

instructions to the jury, it would “point[] out who is or isn’t charged in the first

alleged conspiracy and who is or isn’t charged with respect to Tavon Nelson, and

who is or isn’t charged . . . with respect to the second conspiracy.”

Several steps were taken during the course of trial to ensure that the jury was

clear as to the charges pertaining to each individual appellant. As the court

promised, it explained in its preliminary instructions to the jury that Sanquan was

not charged under the second conspiracy and Bost was not charged under the first

conspiracy, and that each defendant must be given “separate consideration.”

During Simms’s testimony, in the middle of trial, the parties also agreed that the

trial court would give the following jury instruction:

Any statement made by a defendant after March 22nd,
2010 is not to be used as evidence against Sanquan
Carter. Sanquan Carter is not charged with any crime
after March 22nd, 2010. Likewise, any statement made
by a defendant before March 23rd, 2010 is not to be used
as evidence against Robert Bost.
31

The court then again instructed the jury during its closing instructions that “[e]ach

[d]efendant is entitled to have the issue of his guilt as to each of the crimes for

which he is on trial determined by his own conduct and from the evidence that

applies to him as if he were being tried alone.” And, following the government’s

rebuttal of Sanquan’s closing argument in which the prosecutor alluded to the fact

that Sanquan’s initial shooting “started a chain of events” that led to the South

Capitol Street murders, the trial court sua sponte gave a strongly worded curative

instruction:

It’s for you to determine what connection, if any, there is
between the events that are alleged to have occurred at
1333 Alabama Avenue and the events alleged to have
occurred at the Wingate and at South Capitol Street. But
to be sure that there’s no confusion from the argument
that’s been made I want to underscore that Sanquan
Carter is not charged with the conspiracy that’s alleged
to have occurred between March 23rd and March 30th.
He’s not charged with any of the crimes alleged to have
been committed at the Wingate or on South Capitol
Street, but even more fundamentally, there’s not a shred
of evidence that he has any responsibility whatsoever for
the events that are alleged to have occurred between
March 23rd and March 30th. So I just want to
underscore that.

(Emphasis added). Lastly, when the jury sent a note during deliberations that it

was confused about how to evaluate evidence against each individual defendant

and about the co-conspirator liability instruction, by the parties’ agreement, the

trial court explained to the jury that the instructions were not inconsistent, and that,
32

while “evidence of the conduct of a co-conspirator could potentially be part of the

evidence that applies to a defendant . . . you are expected to evaluate the issue of

each defendant’s guilt individually . . . .”

2. Legal Principles

“Joinder of two or more defendants and multiple offenses in one indictment

for trial is authorized by Rule 8 (b) . . . .” Davis v. United States, 367 A.2d 1254,

1260 (D.C. 1976). 16 “We employ a ‘strong policy favoring joinder’ because it

‘expedites the administration of justice’ in numerous ways.” Ball v. United States,

26 A.3d 764, 767 (D.C. 2011) (citation omitted). “Moreover, joinder is preferred

in conspiracy cases . . . .” United States v. Eiland, 406 F. Supp. 2d 46, 50 (D.D.C.

2005) (referencing Fed. R. Crim. P. 8 (b)). That said, “[m]isjoinder . . . is an error

of law . . . subject[] . . . to de novo review.” Ray v. United States, 472 A.2d 854,

16
The government claims and appellants do not appear to dispute that “all
offenses and all defendants are properly joined within each of the two charged
conspiracies.” Accordingly, the argument on appeal is simply whether the first
conspiracy charges (and all defendants involved in those charges) should have
been tried separately from the second conspiracy charges (and the defendants
involved in those charges), even though three of the five co-defendants overlap.
33

857 (D.C. 1984). Super. Ct. Crim. R. 8 (b) (“Rule 8 (b)”), 17 at the time the

indictment was returned, stated in full:

Two or more defendants may be charged in the same
indictment or information if they are alleged to have
participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or
offenses. Such defendants may be charged in 1 or more
counts together or separately and all of the defendants
need not be charged in each count.

(Emphasis added).18 Per the plain language of Rule 8 (b), it is not necessary that

all defendants be charged in each count of the indictment for joinder to be proper,

so long as all of the indicted offenses are based on “the same series of acts or

transactions constituting an offense or offenses.” Id. Thus, the key question in this

appeal is whether the first conspiracy (in which Bost did not participate) and

second conspiracy (in which Sanquan did not participate) can be considered a part

17
Rule 8 (b) was amended in 2016 to read as follows:

The indictment or information may charge 2 or more
defendants if they are alleged to have participated in the
same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The
defendants may be charged in one or more counts
together or separately. All defendants need not be
charged in each count.
18
In contrast to Rule 8 (b), under Rule 8 (a), “offenses may be joined if they
are either similar in character or based on the same act or transaction,” so long as
all offenses are alleged to have been committed by one defendant. Ray, supra, 472
A.2d at 857.
34

of the “same series of acts or transactions,” such that joinder of the charges and the

defendants involved in both conspiracies was proper.

“Our case law establishes that separate offenses can constitute a joinable

‘series of acts or transactions’ where ‘one offense logically leads to another.’”

Medley v. United States, 104 A.3d 115, 122 (D.C. 2014) (citations and brackets

omitted). 19 “An offense leads logically to another when one crime is a ‘sequel’ to

the other.” Id. (citations omitted). “Sequel” offenses include attempts to cover-up

underlying crimes, id., flight, Ball, supra, 26 A.3d at 768, or where the subsequent

offense “was directly occasioned by and grew out of” the underlying offense,

Scheve v. United States, 184 F.2d 695, 696 (D.C. Cir. 1950).20 The sequel offense

need not “inevitabl[y] result [from] the commission of the underlying crimes . . . .”

Bush v. United States, 516 A.2d 186, 192 (D.C. 1986) (emphasis added). We have

said, however, that “the similarity of modus operandi in each of the crimes

19
Other types of offenses that meet the definition of “same series of acts or
transactions” include “offenses committed as a means to a specific common end, or
where they are directed toward some shared goal” and “where the offenses are part
of a common scheme or plan, involving the same place, a short period of time, and
a similar modus operandi . . . .” Jackson v. United States, 623 A.2d 571, 579 (D.C.
1993).
20
Opinions issued by the United States Court of Appeals for the District of
Columbia Circuit prior to February 1, 1971, are binding on this court. M.A.P.,
supra, 285 A.2d at 312.
35

charged,” alone, cannot “fulfill[] Rule 8 (b)’s requirement that [all] defendants be

charged with having participated in a series of acts or transactions . . . .” Davis,

supra, 367 A.2d at 1261 (internal quotation marks omitted); see also United States

v. Suggs, 531 F. Supp. 2d 13, 25-26 (D.D.C. 2008) (explaining that the analogous

federal Rule 8 (b) “may not be read to embrace similar or even identical offenses,

unless those offenses are related.”) (citation and internal quotation marks omitted)

(emphasis in original). In short, “[t]he series of acts envisioned by the drafters of

Rule 8 (b) is one in which the individual offenses are connected or interrelated in

such a manner that proof of charges against one defendant would necessarily have

to be introduced in proving the jointly-charged offenses . . . .” Davis, supra, 367

A.2d at 1261 (emphasis added).

What is or is not considered a “sequel” offense can at times be unclear, so to

illustrate this distinction, the decisions in Scheve and Settles v. United States, 522

A.2d 348 (D.C. 1987) are instructive. So, too, is the Seventh Circuit decision in

United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985). In Scheve, three of the

four defendants sought to separate their charges of illegally operating a gambling

establishment from the fourth defendant Joseph Scheve’s individual charges of

assault with intent to kill and assault with a deadly weapon. 184 F.2d at 695-96.

Scheve was also charged as a member of the illegal gambling enterprise. Id. The
36

court concluded that the charges were properly joined because “[t]he assault was

directly occasioned by and grew out of the gambling offense.” Id. at 696.

Specifically, the evidence showed that all four defendants operated the gambling

house and when the wife of Ricker, a “heavy loser,” demanded that the gambling

house return some of their money, Scheve “pushed” her and then pointed a gun at

Ricker and struck him with it. Id. Accordingly, the court concluded that joinder

was proper because “there was an unbroken chain of causation between the

defendants’ gambling business, Ricker’s losses, his wife’s demand for return of

some of the money, Joseph Scheve’s assault on her, Ricker’s apparent attempt to

intervene, and Scheve’s assault on Ricker.” Id. 21

Likewise, in Velasquez, the Seventh Circuit considered, among other issues,

whether charges stemming from one conspiracy to sell cocaine in Chicago were

misjoined with a second conspiracy to retaliate against an informant who was

initially part of the cocaine conspiracy as part of the “same series of acts or

21
Likewise, in Ball, we held that appellant Ball’s assault on a police officer
charge was a “sequel” to appellant Jackson’s reckless driving charge. 26 A.3d at
768. We concluded that the “inception” was the police’s high-speed chase of
appellants’ vehicle and “[o]nce the [vehicle’s] tire had blown, the occupants were
logically forced to flee by foot, and when the officers closed in on them, the next
logical step in evasion was to resist arrest.” Id. In other cases such as Bush and
Medley, we concluded that joinder was proper when the “sequel” offenses were
attempts to obstruct justice or to cover-up the underlying offense. Bush, supra,
516 A.2d at 190; Medley, supra, 104 A.3d at 122.
37

transactions.” 772 F.2d at 1353. The court reviewed case law pertaining to federal

Rule 8 (b) and concluded that including the second conspiracy to retaliate against

the informant, “[a]s a conspiracy and its cover-up are parts of a common plan,”

would pose “no possible problem of misjoinder if the government’s argument had

any factual basis . . . .” Id. at 1354 (citation omitted).22

In contrast, this court concluded in Settles that the two co-defendants’

charges stemming from the first incident of armed rape were misjoined with their

charges relating to the second incident of rape, and accordingly, reversed the

defendants’ convictions. 522 A.2d at 349. In Settles, the government indicted the

co-defendants for committing two brutal rapes, the first on April 7, 1984, and the

second, ten days later on April 17. Id. at 350. Although the two attacks shared

some of the same violent characteristics, the victims were different and there was

no real overlap of proof between the two offenses. Id. at 351, 353. On appeal,

they argued that the April 7 offenses were misjoined with the April 17 offenses.23

22
The problem in Velasquez, however, was there was no evidence actually
linking the retaliation to the cocaine conspiracy. Velasquez, supra, 772 F.2d at
1354.
23
It is important to note that the co-defendants did “not contest the fact that
they were tried together, nor could they”; their challenge was simply that there
should have been two trials, one for each alleged incident. Settles, supra, 522 A.2d
at 352.
38

This court agreed, concluding that the April 7 charges “were not ‘based on the

same act or transaction or series of acts or transactions’ as the April 17 charges.”

Id. at 352. Specifically, the court concluded that the attack on the second victim on

April 17 was “not a necessary continuation of the abduction and rape of [the first

victim] ten days before, and in no way did it logically or necessarily result from the

earlier incident. Rather, the evidence makes clear that the two incidents were

entirely unrelated.” Id. at 353. The court further found instructive that the

government “presented its evidence at trial separately and distinctly, with no actual

overlap of proof between the two offenses,” that the “two incidents were not

closely connected in time or place,” and “there [was not] any real congruence

between the two incidents, but only a few superficial similarities.” Id.; see also

Davis, supra, 367 A.2d at 1263 (concluding that the counts were misjoined

because “there [was] no logical development of or relationship between the

offenses because no crime necessarily led to or caused the subsequent offenses”).24

24
Similar cases to Settles include Davis and Jackson. In Davis, co-
defendants Davis and Warren were charged in a forty-four count indictment
alleging that they had raped a dozen women from 1972 to 1973 under similar
circumstances. 367 A.2d at 1257-58. Some of the charges pertained to both
Warren and Davis, while other charges were specific to Davis and other
unidentified individuals. On appeal, Warren argued that the counts charging
Warren and Davis were misjoined with counts charging Davis for having
committed crimes with other unidentified individuals. This court agreed,
concluding that there was “no specific or unitary goal toward which all of the acts
alleged in the indictment were directed” and “there [was] no logical development
(continued . . .)
39

Even if we were to conclude that joinder of the two conspiracies was proper

under Rule 8 (b), “severance may still be necessary under Super. Ct. Crim. R. 14

(“Rule 14”), which protects parties from ‘manifest prejudice as a result of being

tried jointly.’” Medley, supra, 104 A.3d at 122 (citations omitted).25 However,

since there is a “strong presumption” “when two or more defendants are charged

with jointly committing a criminal offense . . . that they will be tried together,”

Bush, supra, 516 A.2d at 192, a party seeking severance has the heavy burden of

(. . . continued)
of or relationship between the offenses because no crime necessarily led to or
caused the subsequent offenses.” Id. at 1263. In Jackson, the three co-defendants
were each indicted for armed robbery of three different liquor stores that occurred
within a one-week period. 623 A.2d at 575. On appeal, we concluded that the
three liquor store robberies, each involving a different store and date, did not share
a sufficiently “close connection” that met the “series of acts or transactions” test,
although we ultimately held that the misjoinder was harmless error. Id. at 581-82.
25
Super. Ct. Crim. R. 14 at the time the indictment was returned stated in
pertinent part:

If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial
together, the Court may order an election or separate
trials of counts, grant a severance of defendants or
provide whatever other relief justice requires.

Rule 14 was revised in 2016 to conform with the federal rule: “If the joinder
of offenses or defendants in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the court may order
separate trials of counts, sever the defendants’ trials, or provide any other relief
that justice requires.” Super. Ct. Crim. R. 14 (a).
40

showing the “most compelling prejudice.” Medley, supra, 104 A.3d at 122-23

(citations and internal quotation marks omitted). “Some amount of prejudice will

be permitted in favor of judicial economy and the concomitant expedition of

cases,” id. at 123 (citation omitted), and a “defendant is not entitled to severance

merely because the evidence against a [co-defendant] is more damaging than the

evidence against him.” Bush, supra, 516 A.2d at 192 (citation and internal

quotation marks omitted). Rather, a defendant is entitled to severance only if his

or her “complicity in the overrall criminal venture is de minimis when compared to

the evidence against his [co-defendants].” Id. (citation, internal quotation marks,

and italics omitted).

3. Analysis of Joinder

Sanquan and Bost argue that the trial court wrongly concluded that the

shooting of Howe “logically” led to the South Capitol Street murders because the

two incidents were standalone crimes, and that the majority of the government’s

proffered evidence was unique to each incident. They also argue that the South

Capitol Street murders only occurred as a result of the attempt on Orlando’s life by

Howe’s friends, and that “[a]n uncharged offense committed by individuals other
41

than those named in the indictment cannot serve as the exclusive basis for joining

two otherwise unrelated conspiracies in one indictment.”

Ultimately, the issue boils down to whether the relationship between the two

conspiracies is more akin to the “unbroken chain of causation” of events as seen in

Scheve or more like the “unrelated” incidents that this court addressed in Settles.

This issue is not necessarily an easy one; many of the facts alleged in the

government’s indictment here are similar to the facts in cases where we have

concluded that joinder was improper. For example, in Settles, we emphasized that

the “two incidents were not closely connected in time or place” because they

occurred a week apart from one another. Settles, supra, 522 A.2d at 353. Further,

the two incidents in Settles “involved different victims.” Jackson, supra note 19,

623 A.2d at 580.

Yet, there is one critical difference between the facts of this case and the

facts involved in our previous cases, such as in Settles, Davis, and Jackson, in

which we concluded that there was misjoinder under Rule 8 (b). In each of those

cases, the defendants were alleged to have committed several operationally similar,
42

but ultimately isolated and unrelated crimes. 26 Rule 8 (a) allows for the joinder of

offenses where a single defendant is charged with multiple crimes that are of “the

same or similar character or are based on the same act or transaction . . . .” Rule 8

(b), on the other hand, pertains to the joinder of defendants. The similarity of the

modus operandi for each criminal incident cannot fulfill the requirements of Rule 8

(b), Jackson, supra note 19, 623 A.2d at 580, and the fact that the same group of

individuals may have committed multiple crimes of the “same or similar” nature,

without more, is insufficient for purposes of joining the defendants and offenses

under Rule 8 (b). In other words, in those misjoinder cases there was “no logical

development of or relationship between the offenses because no crime necessarily

led to or caused the subsequent offenses.” Davis, supra, 367 A.2d at 1263.

This case is different. Unlike the indictments in Settles, Davis, or Jackson,

the shooting of Howe and the shootings of Nelson and the individuals on South

Capitol Street cannot be considered isolated or “entirely unrelated.” Settles, supra,

522 A.2d at 353. Rather, the indictment alleges “an unbroken chain of causation,”

Scheve, supra, 184 F.2d at 696, from the theft of Sanquan’s bracelet, to his

26
In Settles, it was two rapes of two different women that occurred a week
apart from one another. 522 A.2d at 353. In Davis, it was twelve rapes that
occurred over the course of a year. 367 A.2d at 1263. In Jackson, it was three
liquor store robberies all on different days. 623 A.2d at 581.
43

retribution that led to the death of Howe, to Howe’s friends immediately seeking

revenge by shooting Orlando, to Orlando’s plan to kill “as many friends and

associates of Jordan Howe as they possibly could,” and lastly to the execution of

his plan. While Howe’s friends attack on Orlando may not have been an

“inevitable result,” it is fair to characterize it as a sequel to the Alabama Avenue

shooting. Bush, supra, 516 A.2d at 192. The chain of events here is also akin to

the second retaliatory conspiracy alleged in Velasquez, which the Seventh Circuit

concluded would have been a permissible basis for joinder. 772 F.2d at 1354.

Further, “[t]here is nothing in the language of the rule itself which requires

that a person participate in more than one phase of a ‘series’ of acts to come within

the rule’s coverage.” Bush, supra, 516 A.2d at 191. The “sequel” conspiracy in

this case took place a week after the underlying offense occurred, rather than mere

minutes such as in Scheve, supra, 184 F.2d 695, or Ball, supra, 26 A.3d 764.

However, while close spatial and temporal connection between the two offenses

may be a consideration, it is not the only or determinative element. See, e.g.,

Medley, supra, 104 A.3d at 120 (joinder is proper where the two assaults involving

the same victim transpired “a year apart from each other”).27 Further, there was a

27
Contrary to Sanquan’s and Bost’s argument, joinder of “sequel” offenses
is not limited to cover-ups or flight. But see Medley, supra, 104 A.3d at 122
(continued . . .)
44

close connection between the victims of the two conspiracies — the intended

targets of the South Capitol Street murders were the relatives and friends of Howe,

who was the victim of the first conspiracy. In addition, the co-conspirators

murdered Nelson for the specific purpose of stealing his weapon in order to carry

out the drive-by shooting on South Capitol Street.

Both Sanquan and Bost attempt to distinguish this case by arguing that there

existed an intervening event — the attempt on Orlando’s life by Howe’s friends —

that broke any chain of causation between the two conspiracies. Scheve defeats

this argument. In that case, like here, there existed an intervening event between

the charge of operating an illegal gambling house and the subsequent assault —

Ricker’s wife’s attempt to demand her husband’s money back. 184 F.2d at 696.

We have further stated that the subsequent offenses need not “inevitabl[y] result

(. . . continued)
(“‘Sequel’ offenses include, inter alia, attempts to obstruct justice, which make
appropriate the joint trial of an underlying offense and additional offenses
committed by others in an attempt to hide the underlying offense.”). Scheve is a
perfect example of a case where the “sequel” crime did not constitute an attempt to
cover-up or flee from the initial underlying offense. Another such example is
Perez v. United States, 968 A.2d 39, 52-53 (D.C. 2009), where the government
alleged that the defendants attacked a homeless man and then subsequently, when
individuals passing by attempted to stop the attack, the defendants attacked the
passersbys and killed one of them. Id. at 53. We concluded that there was no
misjoinder of the assault on the homeless man, the murder, and the attack on the
other passersbys. Id. at 78-79.
45

[from] the commission of the underlying crimes” for the offenses to be a “sequel to

those crimes.” Bush, supra, 516 A.2d at 192 (emphasis added). 28 Howe’s murder

may not have “inevitably” led his friends to attempt to kill Orlando, thereby

provoking Orlando to organize the South Capitol Street murders, but we conclude

that Howe’s murder did ultimately “lead” to Orlando’s revenge plot, and

accordingly, the latter was a “sequel” to the first crime. Bush, supra, 516 A.2d at

192.

Ultimately, we conclude that joinder of the two conspiracies was not

improper because the second conspiracy can be considered a “sequel” to the first

conspiracy, and therefore part of the same “series of acts or transactions.” Super.

Ct. Crim. R. 8 (b). Having concluded that joinder was not improper, we must next

28
Appellants also argue that “[i]t is implicit in the language of Rule 8 (b)
that while not every defendant needs to have participated in every illegal act, all
defendants must have participated in the series of illegal acts,” and that, because no
appellant was charged in the attempt on Orlando’s life, the two conspiracies were
improperly joined. We disagree with this argument. On this point, we agree with
the government that the indictment need not charge every possible offense to
establish that offenses are sequels for purposes of Rule 8 (b) joinder. The
government need not have charged Howe’s friends for shooting Orlando in order
for the trial court to conclude that, as a factual matter, the shooting of Orlando was
the link between the two conspiracies.
46

decide whether, nonetheless, appellants’ motions for severance should have been

granted.29

29
Alternatively, the government argues that the two conspiracies constituted
a “part of a common scheme or plan” with a “substantial overlap in proof of the
various crimes.” Jackson, supra note 19, 623 A.2d at 579. The government
highlights the overlaps in evidence such as, inter alia, the fact that both
conspiracies involved appellants Orlando, Best, and Williams, and turned-
government-collaborator Simms; both involved use of the same AK-47; both relied
on Williams to store the weaponry; and there was substantial overlap of evidence,
in particular Simms’s testimony. Id. at 581 (“Where offenses are considered to
constitute a series of acts or transactions because they are part of a common
scheme or plan, it is also necessary that there be a substantial overlap in proof the
various crimes such that it would be difficult to separate proof of one from the
other.”). While evidence of overlap is important, we think it is more important to
decide whether the indictment actually “show[ed] . . . a common scheme
connecting the two conspiracies,” United States v. Nicely, 922 F.2d 850, 853 (D.C.
Cir. 1991) (emphasis added), for joinder under the common scheme or plan
criterion. Davis, supra, 367 A.2d at 1262 (common scheme or plan is one of three
categories of cases that permit joinder under Rule 8 (b)). The D.C. Circuit, in
analyzing the analogous federal Rule 8 (b) has held that “[o]verlapping
memberships,” alone, will not authorize joinder under Rule 8 (b) “if the
conspiracies cannot be tied together into one conspiracy, one common plan or
scheme.” Nicely, supra, 922 F.2d at 853 (citation and internal quotation marks
omitted). Here, it is difficult to see how the two conspiracies reasonably constitute
an overarching “common scheme or plan,” such that it could be considered, even if
not charged, as one large conspiracy. The initial conspiracy to retaliate against
individuals who stole Sanquan’s bracelet does not share a similar purpose or plan
with the second conspiracy to retaliate against Howe’s friends and family for the
shooting of Orlando. While we agree with the government that the two
conspiracies “logically” led to one another, and that the charges and defendants
were properly joined, we cannot agree that the two conspiracies constitute a
“common scheme or plan.”
47

4. Analysis of Severance

While the trial court has broad discretion to grant or deny severance under

Rule 14, Bailey v. United States, 10 A.3d 637, 642 (D.C. 2010), “a disparate

quantum of evidence” against each co-defendant “may conceivably require a

severance under some circumstances.” Sousa v. United States, 400 A.2d 1036,

1041 (D.C. 1979) (citations and internal quotation marks omitted). Severance

should be granted “only where the evidence of a defendant’s complicity in the

overall criminal venture is de minimis when compared to the evidence against his

[co-defendants],” Bush, supra, 516 A.2d at 193 (italics omitted), or when failure to

do so would “violate a defendant’s right to due process and a fair trial,” such as

when co-defendants “present conflicting and irreconcilable defenses and there is a

danger that the jury will unjustifiably infer that this conflict alone demonstrates

that both are guilty.” Sweet v. United States, 438 A.2d 447, 451 (D.C. 1981)

(citation omitted).

In this case, Sanquan’s and Bost’s sole argument as to why their respective

motions to sever should have been granted is that their individual cases were

prejudiced by admission of evidence of unrelated conduct and offenses; for

Sanquan, it is evidence of the second conspiracy, including the South Capitol
48

Street murders, for Bost it is evidence of the first conspiracy that led to Howe’s

murder. However, it is well-established that severance is not required “just

because a significant portion of the government’s trial evidence is applicable only

to [his co-defendants].” Rollerson v. United States, 127 A.3d 1220, 1230 (D.C.

2015) (citation omitted). Moreover, both Sanquan and Bost were active

participants in conspiracies to commit first-degree murder, so we cannot say that

either of appellants’ “complicity in the overall criminal venture is de minimis when

compared to the evidence against his [co-defendants].” Bush, supra, 516 A.2d at

193 (italics omitted). Specifically, Sanquan was the mastermind behind the first

conspiracy that led to Howe’s murder — Sanquan gathered the co-conspirators

together for the purpose of finding and killing the person who stole his bracelet.

Bost, likewise, was an active participant in both the South Capitol Street murders

and Nelson’s murder; in fact, the evidence showed that he intentionally shot and

killed Nelson in an attempt to rob Nelson of his weapon.

Lastly, the evidence presented of both conspiracies was not “so complex or

confusing that the jury could not make individual determinations about the guilt or

innocence of each defendant.” Rollerson, supra, 127 A.3d at 1231 (citation and

internal quotation marks omitted). The record further demonstrates that the trial

court made efforts to ensure that the jury was not confused about the charges. For
49

example, it reminded the jury on several occasions that Sanquan was not charged

with participation in the second conspiracy and Bost was not charged with

participation in the first conspiracy. The court also instructed the jury that no

statement made after March 22, the date of the first conspiracy, could be used

against Sanquan, and no statement made before March 23, the date the second

conspiracy began, could be used against Bost. Lastly, the court gave a strongly

worded curative instruction to the jury after the prosecutor’s rebuttal argument, in

which the court stressed to the jury that Sanquan could not be held responsible for

the South Capitol Street and Nelson murders. Given both Sanquan’s and Bost’s

active participation in the first and second conspiracies, respectively, and the trial

court’s instructions intended to limit jury confusion, we hold that the trial court did

not abuse its discretion when it denied Sanquan’s and Bost’s motions to grant

severance.30

30
Lastly, both Sanquan and Bost claim that the trial court should have given
an additional limiting instruction that the jury could not use any evidence relating
to one conspiracy in the evaluation of the other. We see no prejudice and,
therefore, no error from the trial court’s omission to give this additional limiting
instruction, especially considering the fact that appellants failed to request such an
instruction. See Griffin v. United States, 144 A.3d 34, 36 (D.C. 2016) (failure to
object to instruction limits appellate review to plain error). The trial court
explained to the jury during preliminary instructions and again during closing
instructions that Sanquan was not charged for acts committed under the second
conspiracy and Bost vice versa. We are satisfied that these instructions prevented
jury confusion on the charges. “It is accepted that in any trial involving multiple
defendants, some amount of potential prejudice is permissible if outweighed by
(continued . . .)
50

III. Issues Arising During Trial

A. Prosecutor’s Statements During Opening and Closing

Appellant Williams (joined by all other appellants on appeal) argues that the

trial court erred in denying his motions for a mistrial based upon alleged improper

statements made by the prosecution during its opening statement and initial closing

argument.

1. Opening Statement

In its opening statement, the prosecution referred to the inscription on the

Supreme Court building, “Equal Justice Under Law,” and emphasized to the jurors

their role in enforcing the laws. While the prosecution was discussing this theme,

the trial court sua sponte instructed the prosecution, “I [] want you to focus on

what the evidence is going to show; this is not a closing argument” and gave the

same instruction again in response to an objection by the defense. The prosecution

obliged, but at times continued with its theme of asking the jurors to enforce the

(. . . continued)
considerations of economy and expedition in judicial administration.” Payne v.
United States, 516 A.2d 484, 490 (D.C. 1986) (citation omitted).
51

rule of law and emphasized that “vigilante justice” occurs “when individuals take

the law into their own hands.”

During a break in the prosecutor’s opening statement, the trial court

responded to all objections raised by the defense. Williams’s counsel went a step

further by moving for a mistrial, arguing to the court that the prosecution’s “public

policy” theme was improper. The trial court denied Williams’s motion, but

acknowledged the merits of the objections and reminded the prosecutor twice that

the court had to interject and ask him not to make arguments. The trial court

clarified that the references to the inscription on the Supreme Court were improper

and cautioned the prosecutor not to make further references.

During a second break in the opening statement, the trial court sustained

defense counsel’s objection to the prosecution’s statement that its role was to

“fairly enforc[e] the criminal laws,” and thus, the government would not ignore the

retaliatory shooting against Orlando. The trial court stated that it would allow the

prosecution, “a little bit of leeway” in describing its role in that way, since the

prosecution would later be calling Jordan Howe’s godbrother, Morgan, as a

government witness.
52

Once the prosecution completed its opening statement, Williams’s counsel

requested a curative instruction from the court to address the “emotional nature” of

some of the prosecution’s opening statement. The prosecution did not object to the

instruction, but stated that it did not believe the instruction was necessary and that

if the court would give one, it requested that the instruction be given after all of

counsels’ opening statements. The trial court agreed that the instruction would be

appropriate due to some emotional reactions in the courtroom during the

prosecution’s opening statement and the court stated that it would give the

instruction after all of the opening statements.

The trial court gave the following instruction to the jury after opening

statements: “Ladies and gentlemen, this case may evoke emotions from witnesses

and others. I want to remind you that you are to base the verdicts in this case on

the evidence and the law as I instruct you[,] not . . . on emotions.”

2. Closing Argument

Additionally, Williams takes issue with several statements made by the

prosecution during its initial closing argument, as well as the prosecution’s use of a

photograph. While there were several objections raised by the defense, none of the
53

defense counsel moved for a mistrial during the prosecution’s closing argument.

Williams argues that the trial court should have sua sponte declared a mistrial due

to improper comments made by the prosecution.

Williams claims the following comments by the prosecution during its

closing argument were improper. First, Williams argues that the prosecution’s

characterization of certain government witnesses as “heroes” was improper.

During its closing, the prosecution stated that the actions of government witness

Michael White, who testified that he came forward to police officers with

information about the South Capitol Street shooting because he was tired of the

violence, was “heartening.” Williams’s counsel objected to this characterization,

but the trial court did not respond. The prosecution also stated that Antonio

Alston, Williams’s cousin, who came forward and exonerated a juvenile that MPD

officers had initially mistakenly identified as the driver of the minivan in the South

Capitol Street shooting was a “hero” and to “bless him for that.” The prosecutor

stated further, “[i]f we’re not about truth and we’re not about justice, then we’re

not about anything.” Later the prosecution told the jury that Alston was doing

“God’s work” upon which defense counsel objected, and the trial court sustained

the objection.
54

Second, Williams argues the prosecution’s statements that the jury should be

“proud” of how MPD conducted its investigation, were improper. The prosecution

also asked the jury if they would have had the police stop the investigation after

Orlando and Simms had been chased down. The defense objected, and the trial

court called all defense counsel to the bench to address their objections

simultaneously. The trial court ruled that because there were attacks by the

defense on the police’s investigation of the case, the government could “comment

on the quality of the investigation,” but also acknowledged that the prosecution

should not suggest that the jurors should show their appreciation for the police

department though their verdicts. The court gave a curative instruction,

recommended by the defense, that the jury should “determine the facts in [the] case

without prejudice, fear, sympathy or favoritism,” but the court also balanced this

instruction with a statement that it is proper for the attorneys to comment on the

quality of the police investigation.

Third, Williams challenges the prosecution’s use of the photograph of one of

the victims, William Jones, lying dead at the scene of the South Capitol Street

shooting, during its closing argument. For context, prior to trial, Williams’s

counsel objected particularly to the government’s use of this photograph of Jones.

The government responded that the photograph was appropriate to support an
55

inference of intent to kill by the appellants who used high power weapons, like the

AK-47. The court ultimately found the photograph admissible to meet the

government’s burden of proof, but noted it would reconsider “if suddenly there

[was] a whole mass of these same photographs over and over and over again.”

Defense counsel challenged the prosecution’s use of the photograph as an

exhibit in its closing argument, asserting that the photograph was blown up and

was provoking an emotional reaction from the audience. The trial court overruled

the objection, finding that although someone in the audience left the courtroom

because of an emotional response to the photograph, the prosecution had used the

photograph, not to evoke emotion, but for a “legitimate purpose” of showing the

power of the AK-47. Williams now essentially makes the same argument on

appeal: that the prosecution’s use of the photograph of Jones prejudiced the

defense because the prosecution, “intentionally showed that graphic [photograph] .

. . when other more appropriate ones were available . . . simply for its . . .

emotional impact upon the jury.” Finally, Williams states that the prosecution’s

final statement to the jury during its closing that “[t]he families here are not asking

you for vengeance. They’re only asking you for justice,” was improper.
56

3. Legal Principles

“The purpose of an opening statement is to give the broad outlines of the

case to enable the jury to comprehend it.” Bailey v. United States, 831 A.2d 973,

981 (D.C. 2003) (emphasis added) (citation, internal quotation marks, and brackets

omitted). Therefore, “an opening statement should not be argumentative, nor

should it appeal to the passions and sympathies of the jury.” Id. at 981 (internal

citation omitted). However, in closing argument, counsel is permitted to make

arguments and commentary “as long as it is in the general nature of argument, and

not an outright expression of opinion.” Burgess v. United States, 786 A.2d 561,

571 (D.C. 2001) (emphasis added) (citation and internal quotation marks omitted).

Both “the scope and extent of [an] opening statement,” as well as “[t]he regulation

of closing argument” are left to the discretion of the trial judge. Jennings v. United

States, 431 A.2d 552, 560 (D.C. 1981); Anthony v. United States, 935 A.2d 275,

283 (D.C. 2007). Therefore, regarding the issue of an improper statement by

counsel during an opening statement or closing argument, “[t]he question of what,

if any, remedial action is appropriate is committed to the trial judge’s discretion . . .

‘and we do not lightly overturn [its] discretionary rulings.’” Simmons v. United

States, 940 A.2d 1014, 1024-25 (D.C. 2008) (footnote omitted).
57

When evaluating claims of prosecutorial error, we must first determine

whether the challenged statements from the prosecutor, viewed in context, were, in

fact, improper. Bailey, supra, 831 A.2d at 981. If the statements were improper

and the claim was properly preserved at trial, a reversal is only warranted if the

statements caused “substantial prejudice.” Freeman v. United States, 689 A.2d

575, 584 (D.C. 1997). “The applicable test for prejudice is whether we can say,

‘with fair assurance . . . that the judgment was not substantially swayed by the

error.’” Anthony, supra, 935 A.2d at 284 (citations omitted); see Kotteakos v.

United States, 328 U.S. 750, 765 (1946) (announcing the harmless error standard).

The four factors to be considered when determining prejudice are “‘1) the gravity

of the impropriety, 2) its relationship to the issue of guilt, 3) the effect of any

corrective action by the trial judge, and 4) the strength of the government’s case.’”

Fearwell v. United States, 886 A.2d 95, 102 (D.C. 2005) (citations omitted); see

also Bailey, supra, 831 A.2d at 981.

4. Analysis

The statements made by the prosecution during its opening statement and

closing argument can be addressed in tandem. Williams argues that this court must

consider the cumulative effects of the prosecutor’s statements, instead of reviewing
58

the statements in isolation. The government argues that the prosecution’s

references to the inscription at the Supreme Court were merely a statement of the

government’s theory of the case, and thus were not improper. The government

also argues that the prosecution’s statements during closing argument were all

permissible forms of argument.

a. Statements in Opening Statement

To begin, the prosecution’s thematic discussion of “Equal Justice Under

Law,” and its comments that the defendants had taken the law into their own

hands, did not appear to cross the line of permissible opening statements, as the

comments were not argumentative. See Bailey, supra, 831 A.2d at 981. However,

even if the comments were improper, in the context of this case, the prosecution’s

elaboration on this theme was not so grave as to warrant a mistrial. The statements

came at the beginning of a long line of opening statements by counsel, in a three-

month long trial, and were only statements enunciating a theory of the case, not

statements specifically “related to the evidence in the case.” Id. at 985. Williams

makes no specific argument on appeal as to how the statements may have affected

the outcome of the trial. See id. (“Appellant has not persuaded us that [the

prosecutor’s improper statements] made any real difference in the outcome of the
59

proceedings.”). Moreover, the trial judge was attentive to defense counsel’s

concerns and objections, and even interjected sua sponte to instruct the prosecution

“to focus on what the evidence is going to show” and not to give a closing

argument. See id. at 986; see also Wright v. United States, 508 A.2d 915, 921

(D.C. 1986) (“[T]he court may curtail an opening statement that becomes

argumentative or inflammatory.”) (citation omitted).

Accordingly, the trial court’s decision not to grant Williams’s motion for a

mistrial due to the government’s opening statement was proper, especially because

“a mistrial is a severe remedy . . . one to be taken only in circumstances

manifesting a necessity therefor.” Trotter v. United States, 121 A.3d 40, 53 (D.C.

2015) (brackets, footnote, and internal quotation marks omitted). It was well

within the trial court’s discretion to decide, alternatively, to give a curative

instruction to the jury to “base [their] verdicts . . . on the evidence and . . . not . . .

on emotions” and defense counsel all agreed to this instruction. See id. at 54 (“The

trial court was in a position to evaluate the impact of the prosecutor’s [] comments

and the likely efficacy of a curative instruction.”) (footnote and internal quotations

omitted).
60

b. Statements and Use of a Photograph in Closing
Argument

Similarly, the statements made by the prosecution during its closing

argument did not warrant a mistrial. First, the prosecution’s references to the

quality of the police investigation and its statements that the jury should be

“proud” of MPD officers were not improper when considered in context. The

prosecutor is allowed to respond to defense counsel’s attacks regarding the quality

of the police investigation during trial because “it is in the general nature of

argument, and not an ourtright expression of opinion.” See Burgess, supra, 786

A.2d at 571 (quoting Irick v. United States, 565 A.2d 26, 36 (D.C. 1989)). For

example, in Bailey, a prosecutor glorified a police investigation and his “heroism”

in its opening statement and this court held that, while the statements “came close”

to the limits of permissible comment, they “did not cross the line, nor . . . warrant a

mistrial.” Bailey, supra, 831 A.2d at 983. The prosecutor’s references in this case

to government witness Alston as a “hero” and to government witness White’s

actions as “heartening” are similar. Especially in light of the latitude afforded to

counsel during closing argument, such statements were not impermissible

characterizations in response to defense counsel’s cross-examinations of those

witnesses. Additionally, the statements did not urge the jurors to place themselves

“in the position of the victim,” nor did the statements rise to the level of an appeal
61

“to the jury’s emotions.” See Tyree v. United States, 942 A.2d 629, 643 (D.C.

2008) (“This court has repeatedly cautioned that it is improper for the prosecutor to

seek to place the jurors in the position of the victim.”).

Next, while the prosecutor’s final comment during closing argument that

“the families here are not asking you for vengeance. They’re only asking you for

justice,” may have appealed to the sympathy of the jurors, the prosecution did not

cross the line by asking the jurors to “send a message to the defendant[s]” or to the

community with their verdicts, which is “something we have repeatedly

condemned.” Bailey, supra, 831 A.2d at 984 (internal quotation marks omitted).

Again, Williams has not alleged any specific prejudice that flowed from this final

statement in the context of a three-month long trial and lengthy closing arguments

by all counsel. See id. at 985 (finding that the prosecutor’s improper comments

were not severely prejudicial, as they were made in a “long closing argument, after

a long trial, and they were not related to the evidence in the case”).

Finally, Williams’s challenge to the prosecutor’s use of the photograph of

William Jones during its closing argument is unavailing. The photograph was

admitted into evidence, and as the trial court noted, the photograph was used by the

prosecutor to show the high power of the AK-47 to infer appellants’ intent to kill.
62

See Jones v. United States, 27 A.3d 1130, 1142 (D.C. 2011) (“The admission of

photographs is within the sound discretion of the trial judge.”) (citations and

internal quotation marks omitted); see also Leasure v. United States, 458 A.2d 726,

728 n.2 (D.C. 1983) (holding that the trial court did not abuse its discretion in

admitting photographs of the murder victim, as they had probative value in

confirming the identity of the victim, the location of the offense, the cause of

death, and appellants’ malice and premeditation”) (internal citations omitted).

B. Technical Issues With Husher

Orlando claims that he is entitled to a new trial because, throughout trial, the

courtroom “husher” failed to work properly and exposed the jury to prejudicial and

extra-judicial information. He acknowledges, however, that his defense counsel

did not raise the husher issue during trial, and that his counsel never made any

assertions before the trial court that certain statements may have been overheard by

the jurors during bench conferences. Nevertheless, Orlando requests that this court

presume prejudice (1) due to the husher not working properly on at least two

occasions within a two-week period of the trial, and (2) because the judge did not

conduct a hearing to determine if the jurors overheard any statements during bench

conferences.
63

1. Additional Factual Background

On February 16, 2012, five days prior to the start of trial, the trial court

explained to the jurors, “[t]he [purpose] of the bench conferences is so you won’t

hear what we’re talking about. So please don’t try to read lips whenever we’re

using them.” On the first day of trial on February 21, during a bench conference,

the trial court indicated to one of the courtroom technicians, “Everybody’s able to

hear me when I’m talking with the hushers.” Afterwards, the court called all

counsel to the bench and stated, “I think we have the hushers amped up now, so

maybe it’ll work,” and then asked for those in the courtroom to let her know if they

could hear the court when the husher was on. No one notified the court that they

could hear the bench conferences that day.

However, approximately two weeks later, on March 1, during a bench

conference, a juror notified the court that the juror could “almost hear [the bench]

conversations sometimes . . . .” (emphasis added). The court responded, “Thank

you for letting me know” and told someone in the courtroom “the jurors are able to

hear when the husher’s on, so we need to get that adjusted at our break if we

could.” The juror clarified that, “It’s just some tones to the conversations. We’re
64

trying not to [hear],” and the court responded, “Right. But I appreciate you telling

me that. So thank you. It’s important to have private conversations here.”

On March 7, the trial court stated, presumably to a courtroom technician,

“Apparently the husher is still a bit of a problem. It is not being loud enough. If

you could, during a break, adjust it, I would appreciate that.” The court advised

counsel that they “need[ed] to talk very quietly if [they] are doing something at the

bench because of it.” During bench conferences that day, no party suggested any

further problems with the husher. On March 14, the court asked jurors if the

husher was now effective and a juror responded that, “There just needs to be one

more speaker.” The trial court then stated, “Okay. We’ll try to talk more quietly.

If you can just raise your hand if you’re hearing us. Thank you. But do make an

effort not to listen.” The record does not show that any juror thereafter raised a

hand to indicate a further problem. During a bench conference later that day,

counsel and the court repeatedly reminded each other to keep their voices down.

No counsel ever objected or made any requests to the court about the husher.

On appeal, Orlando argues for the first time that the jurors were likely able

to hear two bench conferences in particular. First is a bench conference in which

the trial court admonished Orlando’s trial counsel for “showboating” before the
65

jury. Second is a bench conference during which Orlando’s counsel sought

assurance from the prosecution that it would not elicit any testimony from

government witness Ronald Ray that Orlando may have shot at Ray or may have

been involved with other persons shooting at Ray.

The first bench conference occurred on March 1, the same day that the juror

first alerted the court to a problem with the husher. During this conference, the

trial court admonished Orlando’s counsel for doing “a big raising eyebrow thing in

front of the jury” after the court’s rulings, and told counsel, “I don’t want you to be

showboating in front of this jury by raising your eyebrows[.]” The judge pointed

out to Orlando’s counsel, “there’s been twice in this trial now where after I ruled,

you made a big show” and that she was “only using [the] opportunity to say [that]

at the bench because [she didn’t] want to repeat it.”

The second bench conference occurred later that same day, immediately

prior to government witness Ray’s testimony, where Orlando’s counsel stated to

the court and the prosecutor, “I know that there’s some reference in some of the

documents that . . . Ray was of the thought that . . . Orlando . . . had something to

do with someone shooting at him. I just wanted to make sure that [the prosecution

was not] seeking to elicit any of those things.” The prosecutor responded, “I am
66

not going to try to elicit those” and further stated that he did not intend “to get into

anything [regarding Ray’s] thoughts, as [Ray] said in the grand jury, that perhaps

Orlando . . . might have shot at [him].”

2. Legal Principles

The trial court “has an obligation to investigate a plausible claim that the

jury has been exposed to extrinsic evidence.” Garrett v. United States, 20 A.3d

745, 748 (D.C. 2011). Accordingly, “when it is alleged that a jury has been

exposed to extrinsic evidence, the trial court should inquire as to the nature of the

evidence and how the jury came to be exposed to it.” Id. In circumstances in

which “the impartiality of a juror has been plausibly called into question, it is the

responsibility of the trial judge to hold a hearing to determine whether the

allegation of bias has merit.” Medrano-Quiroz v. United States, 705 A.2d 642, 649

(D.C. 1997). However, “[a] trial judge [] does not need to engage in an inquiry

when an allegation of [] reliance on extrinsic evidence is speculative.” Garrett,

supra, 20 A.3d at 749.

Orlando cites to Garrett and (Donald) Young for support. Garrett involved

a juror note in which the jury asked the court if it could consider a statement a
67

witness had muttered while on the stand, which was not in response to questioning

by counsel. Id. at 747. Over the defense’s objection, the trial court sent back a

note stating “yes,” without any inquiry into details of what the jury was referring to

by “muttered utterance” because the court did not want to violate the jury’s

deliberation process. Id. at 747. This court held that the trial court had abused its

discretion because after receiving the jury note, the court had “an obligation to

investigate” and to “inquire as to the nature of the [extrinsic] evidence and how the

jury came to be exposed to it.” Id. at 748-49.

In (Donald) Young, the trial court repeatedly criticized Young’s defense

attorney throughout trial, often during the defense counsel’s cross-examination of

government witnesses. (Donald) Young v. United States, 346 F.2d 793, 795 (D.C.

Cir. 1965). Following the trial court’s “severe criticism” of the defense attorney at

bench conferences, the defense attorney notified the court the following day that a

“number of bystanders” had informed him that they overheard “all of [those] bench

conferences,” and the defense moved for a mistrial. Id. The court did not grant the

defense’s request for a mistrial and simply stated in response, “[t]here will be no

more bench conferences.” Id. at 796. The D.C. Circuit held that the “court’s

continual intervention” during the defense’s cross-examinations may have

precluded the defense counsel from “devot[ing] his best talents to the defense of
68

his client.” Id. at 794-95 (internal quotation marks and citation omitted). The

court further held that the trial court should have held a hearing to determine

“whether counsel could produce witnesses to substantiate his allegations,” and that

it was not confident that the jury did not hear the court’s remarks. Id. at 796.

3. Analysis

This case is distinguishable from both Garrett and (Donald) Young because,

here, neither Orlando’s trial counsel nor other defense counsel ever asserted to the

trial court that the jury overheard certain statements made during bench

conferences. Still, Orlando asserts on appeal that “jurors could overhear extremely

prejudicial comments.” This claim is speculative without any record support that

the jury actually overheard statements from either of the bench conferences that

Orlando discusses. In fact, the record indicates that the trial court was very

attentive to the husher issue, and repeatedly sought to ensure that the husher was

working properly and to mitigate any concern. Specifically, the court instructed

the jury not to try to overhear the bench conferences, informed the courtroom

technician at least twice that the husher needed to be fixed, reminded counsel to

speak quietly at bench conferences, and asked the jurors to notify the court if they

could hear the bench conferences. Thus, the trial court carefully ensured that the
69

jury was not exposed to “extrinsic evidence” from the bench, and there was no

evidence that the jury, in fact, was exposed to or overheard any of the comments

made during the bench conferences. Furthermore, the defense counsel never made

any allegations or raised any concerns to the trial court that the jury may have

overheard certain conversations at the bench. In such an instance where the trial

court acted carefully in light of the issue with the husher, and given the lack of

evidence that the jury actually overheard anything, the trial court did not have a

duty to sua sponte inquire as to whether the jurors overheard the bench conferences

that Orlando references here on appeal. Accordingly, we reject Orlando’s claim

that the issue with the husher requires reversal of his convictions and a new trial.

C. Statements Against Penal Interest

Best argues that his video confession to his mother and his verbal confession

to Salazar were both improperly admitted at trial as statements against his penal

interest. Best claims that in admitting the statements, the trial court improperly

applied prongs one and three under the Laumer standard, which governs the

admission of statements against penal interest. See Laumer v. United States, 409
70

A.2d 190 (D.C. 1979) (en banc). 31 Specifically, with regard to Best’s video

confession to his mother, Best argues that the trial court improperly applied prong

one of the Laumer standard because the court failed to identify a particular

statement made by Best, and instead only based its ruling on non-verbal responses

from Best to Ms. Best, which did not rise to the level of “unambiguous assent” to

Ms. Best’s statements. He also contends that it is unclear whether his non-verbal

and verbal communications amounted to a confession, as opposed to a variety of

other “plausible explanations” for his conduct. Best also argues that his gestures to

his mother were untrustworthy as statements against his penal interest under prong

three of Laumer because the gestures were subject to a non-incriminating

interpretation — i.e., that he had dropped his head and cried to his mother, not out

of an admission of guilt, but instead because he was upset that his mother had

taken the side of the police.

With respect to Best’s verbal confession to Salazar, Best argues that under

the first prong of the Laumer standard, the trial court improperly concluded that

Best made the reported statements to Salazar. Best also argues that his alleged

31
The standard “requires that the trial judge undertake a three-step inquiry
to ascertain (1) whether the declarant, in fact, made a statement; (2) whether the
declarant is unavailable; and (3) whether corroborating circumstances clearly
indicate the trustworthiness of the statement.” Laumer, supra, 409 A.2d at 199.
71

statements to Salazar were untrustworthy under prong three of the Laumer standard

because the statements were contradicted by evidence at trial.

1. Additional Factual Background

a. Admission of Video

Prior to trial, the court considered whether the video of Best’s non-verbal

interactions with his mother should be admitted as a confession. The trial court

ultimately concluded that Best made a statement against penal interest to his

mother, stating that Best was not “simply silen[t]” in the video, but instead he and

his mother were communicating with one another non-verbally. The court further

stated, “There are nods[,] . . . . [Best’s] weeping, his asking to be hugged, the

whole set of communications[.]” The court also noted that the video shows Ms.

Best’s own assessment of her son’s communication to her, which she understood

as Best saying that he had been involved in the shootings. The court considered

the defense’s assertions that Ms. Best had been misled by leading questions when

she testified to the grand jury that her son had admitted his involvement to her.

However, the court found that Ms. Best’s statements to the grand jury corroborated

the videotape.
72

The trial court also stressed that by allowing admission of the video, the jury

would not be “required to find that [Best] made a statement against interest,” but

nonetheless the jury could reasonably make that finding if it chose to do so. The

court stated to both the government and defense, “I too have watched this video

many, many, many times. And there is this . . . very tiny — and, again, it can be

debated — but it is a tiny, what looks like a nod in agreement. And it’s part of the

communication that went on there.”

b. Admission of Salazar’s Statements

Prior to trial and after hearing arguments from the prosecution and from

Best’s defense counsel regarding the admissibility of Best’s verbal confession to

Salazar, the trial court determined that Best’s statements to Salazar were

admissible as statements against penal interest. The court acknowledged that there

were inconsistencies between Salazar’s testimony and other evidence in the case,32

32
The court was presented with evidence that: (1) Best never returned to
Salazar’s apartment at the time she claimed that he made his confession to her, (2)
Salazar had a motive to testify against Best in order to protect her boyfriend
Simms, (3) Salazar admitted to smoking marijuana during the time of the alleged
confession, (4) Salazar initially told police that Best never made any statements to
her regarding the shootings, and (5) there was a discrepancy in her statement
because she said that Best told her M.C. (the juvenile who was mistakenly
(continued . . .)
73

but found that those inconsistencies were “comparable to many inconsistent

statements we’ve seen throughout this trial of people who are fearful of getting

involved . . . and who say one thing and then later say something else.” The court

noted that Salazar’s account was reliable because Best and Salazar were close

friends, so Salazar’s motive to fabricate his confession was not strong. The court

also noted that Salazar’s account was corroborated by other evidence, including the

video surveillance showing Best with the bag that Salazar stated that he had

retrieved from her apartment and specific details that Best told Salazar regarding

the shooting, such as the fact that a girl had been shot in the head.

2. Legal Principles

The rationale behind the statement against penal interest exception to the

hearsay rule is that “reasonable people usually do not make statements against their

penal interest unless the statements are true, [and thus,] the statements are reliable

. . . insofar as they genuinely increase the declarant’s exposure to criminal

sanction.” Thomas v. United States, 978 A.2d 1211, 1227 (D.C. 2009) (footnote

omitted). “[T]o ascertain whether a proffered statement is admissible under the

(. . . continued)
arrested) was innocent, when at the time, the fact that M.C. had been arrested was
not known to the public.
74

penal interest exception, the trial court must undertake a three-step factual

analysis.” Id. at 1227-28. The court must determine: “(1) whether the declarant, in

fact, made the reported statement; (2) whether the declarant is unavailable to

testify; and (3) whether corroborating circumstances clearly indicate the

trustworthiness of the statement.” Id. at 1228 (footnotes and internal quotation

marks omitted).

Best argues that the trial court erred in finding that prongs one and three

were met with regard to his video confession to Ms. Best and his alleged

confession to Salazar. In determining the first factor, whether the declarant in fact

made the reported statement, the court looks to “the veracity of the witness who

repeats the declaration.” Laumer, supra, 409 A.2d at 199. In determining the third

factor, the court must ascertain whether there are “corroborating circumstances that

clearly indicate the trustworthiness of the statement,” by looking at factors such as

“(1) the time of the declaration and the party to whom the declaration was made;

(2) the existence of corroborating evidence in the case; [and] (3) the extent to

which the declaration is really against the declarant’s penal interest.” Id. at 200

(citations omitted).
75

The trial court’s conclusions that the video of Best’s confession to his

mother and Salazar’s statements regarding Best’s confession were admissible as

statements against penal interest are legal questions, which this court reviews de

novo. Thomas, supra, 978 A.2d at 1225 (quoting Laumer, supra, 409 A.2d at 203).

“However, [this court] will not disturb the factual findings supporting the [trial]

court’s conclusion unless they are clearly erroneous.” Id. (footnote omitted).

3. Analysis

a. Best’s Video Confession

With regard to Best’s video confession to his mother, after reviewing the

videotape, we conclude that the trial court properly admitted the video under the

statement against penal interest hearsay exception. Whether Best nodded and

thereby, in fact, made a statement is “essentially [a] factual determination” to

which we give deference to the trial court, unless clearly erroneous. Walker v.

United States, 167 A.3d 1191, 1209 (D.C. 2017) (“The clearly erroneous standard

precludes the appellate court from setting aside a trial court’s finding of fact unless

the judgment is plainly wrong or without evidence to support it.”) (footnotes and

internal quotation marks omitted). In making this factual determination, “the trial
76

court’s focus is not on the truth of the declaration, but on the veracity of the

witness who repeats the declaration.” McCorkle v. United States, 100 A.3d 116,

120 (D.C. 2014) (citation omitted). In finding that Best’s non-verbal responses to

his mother qualified as statements against his penal interest, the trial court made

sufficient findings that prong one of the Laumer standard was satisfied because the

court noted that Best appeared to give a “tiny” nod in response to his mother’s

question about whether he had hurt anyone. The court also concluded that Ms.

Best understood Best to be confessing to her, which was supported by her response

to Best in the video, asking him, “What for? Cause he shot Orlando?” The court

further noted that Best’s responses such as crying, lowering his head again, and

asking his mother for a hug were further non-verbal and verbal communications

that qualified as statements against penal interest. Best’s argument on appeal that

his non-verbal responses to his mother could not constitute statements fails because

Federal Rule of Evidence 801 (a), which this court has adopted, clearly defines

“statement” as an “oral assertion, written assertion, or nonverbal conduct, if the

person intended it as an assertion.” Fed. R. Evid. 801 (a) (emphasis added); see

also Little v. United States, 613 A.2d 880, 882 (D.C. 1992) (adopting Federal Rule

of Evidence 801 (a)’s definition of “statement”).
77

The trial court also made sufficient findings that prong three, whether Best’s

statement bore indicia of trustworthiness, was met. In determining whether there

are sufficient corroborating circumstances that indicate the reliability of the

statement, “relevant considerations include: (1) the timing of the declaration; (2)

to whom the statement was made; (3) the existence of corroborating evidence in

the case; and (4) the extent to which the declaration is really against the declarant’s

interest.” Walker, supra, 167 A.3d at 1209 (footnote and internal quotation marks

omitted). This does not require “that the information within the statement be

clearly corroborated” but “only that there be corroborating circumstances that

clearly indicate the trustworthiness of the statement itself.” Ingram v. United

States, 885 A.2d 257, 266 (D.C. 2005) (emphasis and citation omitted). “The

corroboration requirement of this rule is a preliminary determination as to the

statement’s admissibility, not an ultimate determination about the statement’s

truth.” Id. (citation omitted).

In making its findings as to prong three, the trial court noted that Best’s

statements were corroborated both by Ms. Best’s contemporaneous understanding

that Best was confessing to her, and by Ms. Best’s testimony to the grand jury that

Best had admitted involvement to her while they were in the interrogation room.

On this record, those findings are not clearly erroneous. We have previously noted
78

that “the existence of a close relationship between the declarant and the witness

also may provide indications of trustworthiness.” Laumer, supra, 409 A.2d at 201.

The statements here were made to Best’s mother — who Best presumably trusted

— shortly after his arrest. See Anthony v. DeWitt, 295 F.3d 554, 564 (6th Cir.

2002) (“[S]tatements made to a family member or perceived ally, in confidence,

have previously been deemed sufficiently trustworthy.”). Moreover, Best’s

involvement in the shooting was significantly corroborated by both eyewitness

testimony and DNA evidence implicating him. See, e.g., Walker, supra, 167 A.3d

at 1210-11 (corroborating circumstances clearly indicated the trustworthiness of

the statement where the statement was made two months after the shooting, to his

then-girlfriend whom he presumably trusted, in private, and where the testimony of

eyewitnesses and surveillance video supported his presence at the scene); Terry v.

United States, 114 A.3d 608, 628-29 (D.C. 2015) (determining that sufficient

corroborating circumstances justified admission of the defendant’s statements

under the Laumer test because the statements were made to a neighbor, whom he

had a close relationship with, the statements were made days after the shooting,

and eyewitness testimony and DNA evidence clearly inculpated the defendant).

Best asserts, however, that “as a matter of law,” the statements were not

truly against his penal interest as his actions in the video could be construed in a
79

way other than admitting guilt — such as remorse that his mother had “turned her

back” on him and sided with the police — and therefore, one of the factors weighs

against a finding of trustworthiness. Relying on Andrews v. United States, he avers

that “if there are two possible interpretations of [a] statement . . . , one of which

would subject [the declarant] to criminal liability while the other would not, the

necessary indicia of trustworthiness [as per Laumer’s third prong] are absent.” 981

A.2d 571, 576 (D.C. 2009). There, we agreed with the trial court’s decision to

exclude a proposed statement-against-interest because there were two possible

meanings of the statement: one of which was incriminating and the other

innocuous. In reaching that conclusion, we noted that there was “no evidence in

the record to corroborate the statement that [appellants] tried to ‘set up’ all three

(or any officers).” Id. (emphasis added). We encounter no such hurdle in this

case.

Upon review of the videotape, it would not be clearly erroneous to conclude

that Best was non-verbally communicating with his mother, and thereby confessing

his involvement in the shooting. Such an interpretation is sufficiently corroborated

by other compelling evidence detailing Best’s involvement, as well as Best’s own

mother’s contemporaneous understanding of him to be confessing to her.

Throughout their interaction, Ms. Best responded to Best’s non-verbal
80

communication with additional questions tailored to what she believed the initial

response had been. When asked whether he had hurt anyone, Ms. Best inquired

“What for? Cause he shot Orlando?” after understanding Best’s “tiny” nod to be

confirmatory. She further solidified this understanding through her testimony to

the grand jury in which she attested that Best had admitted involvement in the

shooting to her while they were in the interrogation room. What is more, the entire

exchange was captured on video. Thus, it was not clearly erroneous for the trial

court to find there was sufficient evidence to corroborate Best’s statements to his

mother.

Accordingly, the record supports the trial court’s findings that Best’s

statements to his mother were admissible under the declaration against penal

interest exception to the hearsay rule.33

33
The court also found that Best’s non-verbal responses to his mother were
admissible as adoptive admissions, a ruling which Best likewise challenges on
appeal. We agree with the trial court’s decision. “A defendant may make an
admission by adopting or acquiescing in the statement of another.” Blackson v.
United States, 979 A.2d 1, 6 (D.C. 2009) (citation and internal quotation marks
omitted). The adoption need not be explicit, but may be inferred by the
surrounding circumstances of the conversation. Id. at 7. For the same reasons that
we conclude the trial court did not err in admitting the videotape under prong one
of the Laumer standard, we conclude that Best’s non-verbal responses were
admissible as adoptive admissions as evidence against Best based on the context
and surrounding circumstances of the conversation.
81

b. Salazar’s Testimony of Best’s Confession

Similarly, there was no error in the trial court’s finding that Best’s

confession to Salazar was admissible. With regard to prong one of the Laumer

standard, the court found that Salazar’s statement was reliable because she and

Best were close friends, and thus, it was not likely that she would fabricate his

confession to her. Furthermore, even if Salazar was motivated to protect Simms,

as the trial court noted, Salazar’s testimony on Best’s confession actually

implicated Simms, because she testified that Best told her that Simms shot the AK-

47. In addition, Best’s confession to Salazar occurred on the same night of the

shooting or very soon thereafter, making the statements more reliable. Although

Salazar first indicated to police that Best did not make any statements to her about

the shooting, as the trial court noted, Salazar’s inconsistencies were comparable to

many inconsistencies from other witnesses at trial who were fearful of getting

involved in the case.

Under prong three of the Laumer standard, the trial court properly

acknowledged that Salazar’s account of Best’s confession to her was corroborated

by details surrounding the shooting, such as evidence that Orlando drove, that

Simms shot the AK-47, and that a girl had been shot in the head. Best’s main
82

challenges to admission of her statement under prong three are his assertions that

he could not have told Salazar that the juvenile was falsely arrested because that

information was not public at the time, and in addition, he could not have

confessed to Salazar on the night of the shooting because surveillance video from

his girlfriend Proctor’s apartment showed that he entered Proctor’s apartment that

night and never left to visit Salazar. However, both of these challenges to the

video were successfully presented during cross-examination by Best’s defense

counsel. In light of the trial court’s findings that Best’s statements were

corroborated by many other details of the shooting, this inconsistent evidence was

not a basis for the trial court to exclude Salazar’s testimony regarding Best’s

statements to her. Accordingly, the trial court properly concluded that prongs one

and three of the Laumer standard were met for Best’s verbal confession to

Salazar. 34

34
Salazar’s testimony about Best’s confession would likewise be admissible
as an admission of a party opponent as evidence against Best. See, e.g., Chaabi v.
United States, 544 A.2d 1247, 1248 (D.C. 1988) (“The basis for allowing an
admission into evidence is the ability of the party to rebut the testimony, thereby
avoiding the danger prevented by the hearsay rule, that is, the inability to cross-
examine an out-of-court assertion.”) (citation and internal quotation marks
omitted).
83

D. Withdrawal From Conspiracy Jury Instruction

Appellant Williams argues that the trial court erred when it refused to give

the withdrawal from conspiracy jury instruction. He claims that his action in

leaving the van right before the others committed the South Capitol Street shooting

constituted withdrawal from that conspiracy.

1. Additional Factual Background

Immediately prior to the South Capitol Street shooting, Williams was in the

car with Orlando, Simms, Best, and Bost as they prepared to shoot Howe’s

associates. Simms testified at trial that Williams told the men, “Y’all about to go

commence. Y’all can let me out right here[,]” before exiting the c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4245274. Public record. Not legal advice.