Petition for Writ of Certiorari — Don Fitzgerald Hancock, Petitioner v. United States

No. 22-_____

IN THE

Supreme Court of the United States

DON FITZGERALD HANCOCK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

CHARLES B. WAYNE

Counsel of Record

PAUL D. SCHMITT

DLA PIPER LLP (US)

500 Eighth Street NW

Washington, DC 20004

(202) 799-4253

charles.wayne@dlapiper.com

paul.schmitt@dlapiper.com

Counsel for Petitioner

QUESTIONS PRESENTED

Petitioner was convicted of second degree

murder based largely on the testimony of the sole

witness to the killing, who placed Petitioner at the

scene of the crime. While testifying at trial, the

government’s witness wore a niqab, a religious

garment that covers the entire body and face except

for the wearer’s eyes. Petitioner’s counsel did not

object that the witness’s garb violated the

Confrontation Clause, and the trial court allowed the

testimony. Both the trial court and the D.C. Court of

Appeals subsequently denied Petitioner’s arguments

that his Sixth Amendment rights were violated, in

part based on “religious concerns” related to the

witness’s supposed First Amendment right to wear a

religious garment while testifying. The questions

presented are:

1.

Whether, in a murder trial where a

defendant’s liberty interests at stake, allowing the

only testifying witness present at the scene of the

killing to testify in a niqab impermissibly hindered

Petitioner’s Sixth Amendment right to confront and

cross-examine the witnesses against him at trial, and

thus constituted plain error.

2. Whether Petitioner did not receive effective

assistance of counsel at his criminal trial, when, given

the readily apparent violation of Petitioner’s Sixth

Amendment confrontation rights, trial counsel failed

to object to the testimony, both in advance and at the

time it was presented.

ii

PARTIES TO THE PROCEEDINGS

Petitioner Don Fitzgerald Hancock was the

defendant-appellant below. Respondent the United

States was the plaintiff-appellee below. Reynaud

Cook was also an appellant below.

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

Don Fitzgerald Hancock is an individual person; he is

not a corporate entity or publicly traded company.

iii

TABLE OF CONTENTS

OPINIONS AND ORDERS BELOW ........................ 1

STATEMENT OF JURISDICTION ......................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................... 1

PRELIMINARY STATEMENT ................................ 3

STATEMENT OF THE CASE .................................. 4

REASONS FOR GRANTING THE PETITION ....... 9

I.

The D.C. Court of Appeals’ Decision Presents

Two Constitutional Issues of Exceptional

Importance ......................................................10

A.

The Court of Appeals Wrongly Held that

Petitioner Did Not Satisfy the Plain Error

Standard as to the Confrontation Clause

Violation..........................................................10

B.

The Court of Appeals Erred by Finding that

Trial Counsel’s Performance Did Not Fall

Below an Objective Standard of

Reasonableness...............................................16

CONCLUSION ....................................................... 18

iv

TABLE OF AUTHORITIES

Page(s)

CASES

California v. Green,

399 U.S. 149 (1970)............................................. 12

Comford v. United States,

947 A.2d 1181 (D.C. 2008) .................................. 11

Chatmon v. United States,

801 A.2d 92 (D.C. 2002) ...................................... 16

Cosio v. United States,

927 A.2d 1106 (D.C. 2007) .................................. 16

Fatumabahirtu v. United States,

148 A.3d 260 (D.C. 2016) .................................... 16

Howard v. Moore,

131 F.3d 399 (4th Cir. 1997)............................... 11

Maryland v. Craig,

497 U.S. 836 (1990).................................. 11, 12-13

People v. Ketchens,

No. B282486, 2019 WL 2404393

(Cal Ct. App. 2d Dist. June 7, 2019) .................. 14

Romero v. State,

173 S.W.3d 502 (Tex. Crim. App. 2005) .. 11, 14-15

Strickland v. Washington,

466 U.S. 668 (1984)............................................. 16

v

United States v. Alimehmeti,

284 F. Supp. 3d 477 (S.D.N.Y. 2018) ...... 12, 13-14

CONSTITUTIONAL PROVISIONS

U.S. Constitution, First Amendment ................ 3, 4, 9

U.S. Constitution, Sixth Amendment .............. passim

STATUTES

D.C. Code § 11-721 ..................................................... 1

D.C. Code § 23-110 ............................................. 1, 7, 8

22 D.C. Code, § 2101 .............................................. 1, 5

22 D.C. Code, § 4502 .............................................. 1, 5

28 U.S.C. §1257 .......................................................... 1

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Don Fitzgerald Hancock (“Petitioner”)

respectfully submits this petition for a writ of

certiorari to review the judgment of the District of

Columbia Court of Appeals in this case.

OPINIONS AND ORDERS BELOW

The D.C. Court of Appeals’ opinion is

unreported. Pet. App. 1a-14a. The order denying the

petition for rehearing and rehearing en banc is

unreported. Id. at. 45a-46a. The opinion of the

District of Columbia Superior Court denying

Petitioner’s Motion under D.C. Code § 23-110 is

unreported. Id. at 15a-44a.

STATEMENT OF JURISDICTION

The D.C. Superior Court had jurisdiction

pursuant to 22 D.C. Code, §§ 2101, 4502, as well as

D.C. Code § 23-110. The D.C. Court of Appeals had

jurisdiction over Petitioner’s appeals pursuant to D.C.

Code § 11-721. The D.C. Court of Appeals filed its

opinion on December 15, 2022. It denied Petitioner’s

timely petition for rehearing en banc on February 6,

2023. This court has jurisdiction to review the D.C.

Court of Appeals’ judgment on a writ of certiorari

under 28 U.S.C. §1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the U.S. Constitution

states, in relevant part, that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to

2

be confronted with the witnesses against him; . . . and

to have the Assistance of Counsel for his defence.”

D.C. Code § 23-110 provides, in relevant part:

D.C. Code § 23-110 Remedies on motion

attacking sentence.

(a) A prisoner in custody under sentence of the

Superior Court claiming the right to be

released upon the ground that (1) the sentence

was imposed in violation of the Constitution of

the United States or the laws of the District of

Columbia, (2) the court was without

jurisdiction to impose the sentence, (3) the

sentence was in excess of the maximum

authorized by law, (4) the sentence is otherwise

subject to collateral attack, may move the court

to vacate, set aside, or correct the sentence.

(b)(1) A motion for such relief may be made at

any time.

…

(c) Unless the motion and files and records of

the case conclusively show that the prisoner is

entitled to no relief, the court shall cause notice

thereof to be served upon the prosecuting

authority, grant a prompt hearing thereon,

determine the issues, and make findings of fact

and conclusions of law with respect thereto. If

the court finds that (1) the judgment was

rendered without jurisdiction, (2) the sentence

imposed was not authorized by law or is

otherwise open to collateral attack, (3) there

3

has been such a denial or infringement of the

constitutional rights of the prisoner as to

render the judgment vulnerable to collateral

attack, the court shall vacate and set the

judgment aside and shall discharge the

prisoner, resentence him, grant a new trial, or

correct the sentence, as may appear

appropriate.

…

(f) An appeal may be taken to the District of

Columbia Court of Appeals from the order

entered on the motion as from a final judgment

on application for a writ of habeas corpus.

PRELIMINARY STATEMENT

This case squarely presents to this Court for

resolution two constitutional issues of exceptional

importance. First, Petitioner did not receive a

constitutionally adequate criminal trial (where his

liberty interests were at stake) because he was denied

his Sixth Amendment right to confront witnesses

testifying against him—in this case, the only witness

to testify firsthand regarding the killing. The trial

court committed plain error by permitting the witness

to testify in a niqab, which impermissibly hindered

Petitioner’s ability to cross-examine her and the jury’s

ability to assess her credibility.

In denying

Petitioner’s appeal on this issue, the Court of Appeals

endorsed the use of a novel – and dangerous –

“religious concerns” factor, whereby a criminal

defendant’s constitutional rights can be “balanced”

against the purported First Amendment rights of a

witness at trial to dress as they please, even when

4

such dress almost completely obstructs the witness’s

face and prevents proper confrontation under the

Sixth Amendment.

Second, Petitioner’s Sixth Amendment rights

were violated because he did not receive effective

assistance of counsel. Petitioner’s trial counsel failed

to raise the Confrontation Clause issue—which

should have been abundantly obvious—at trial. In

denying Petitioner’s appeal on this issue, the Court of

Appeals’ reasoning was based on the same flawed

determination that there was no Confrontation

Clause violation, as well as a problematic reading of

the objective standard of reasonableness for

ineffective assistance of counsel cases.

These rulings will recur and cause further harm

within the U.S. criminal justice system. They will

have severely adverse consequences to criminal

defendants whose liberty interests are at stake by

effectively eviscerating the right to confrontation

under the Constitution, by signaling that right can be

“balanced” away by a non-defendant’s religious

rights. Neither the First nor the Sixth Amendments

endorse or warrant such a dangerous precedent. Mr.

Hancock has exhausted his appeals in the District of

Columbia courts on these issues. For all of these

reasons, as well as those discussed below, review and

clarification from this Court are urgently needed.

STATEMENT OF THE CASE

1. This Petition and the appeals below arise

from the criminal trial of Petitioner and Reynaud

Cook. On a one-count indictment, Petitioner was

charged with First Degree Murder While Armed

5

(Premeditated), in violation of 22 D.C. Code, §§ 2101,

4502, for the July 17, 2007 killing of Nacarto Gladden

in northeast Washington, DC. Cook was also charged

with the same crime, and Petitioner and Cook were

joined as defendants and tried together. After

Petitioner and Cook both pled not guilty, a nine-day

trial was held before the D.C. Superior Court in July

2017.

2.a. At trial, the government’s theory of the case

was that Cook shot Gladden, with Petitioner

participating in the killing, but the government would

not rule out the possibility that Petitioner in fact shot

Gladden. To support its case against Petitioner, the

government largely relied on the testimony of Alisha

Everhart, who was at the scene just moments before

the killing transpired and whose testimony placed

Petitioner there at the time of the killing. The

government also presented evidence of statements

made by Everhart shortly after the incident

supposedly implicating Petitioner for the killing.

There was, however, no clear testimony linking

Petitioner to a murder weapon, and Everhart testified

that she saw Cook walking to the scene carrying a

gun. No murder weapon was placed into evidence,

and it was never established at trial who shot

Gladden.

b. Notably, Everhart – the sole testifying

witness who was present at the scene of the crime,

testified during the second, third, and fourth days of

trial while wearing a niqab, a traditional form of

religious dress that covers the entire face and body,

and leaves only the eyes of the wearer visible. During

its opening statement, the government sprung the

6

fact of Everhart’s planned trial dress for the first time,

making the jury aware that:

In 2011 or so, Ms. Everhart pulled herself

together. She got her life together. She got

sober. She had a child. She became religious.

She converted to Islam. She became very active

in the Islamic community. And, in fact, ladies

and gentlemen, she is such a devout individual

that you will see, when she testifies here today,

she’s actually going to be in a headdress and

face covering for religious reasons.

Pet. App. at 52a. Trial counsel did not object at that

time to Everhart testifying while wearing a

“headdress and face covering.”

c. The prosecutor addressed Everhart’s apparent

religious beliefs on the first day of her testimony,

noting that she had converted to Islam and was

wearing a niqab in court for her testimony.

Q And you said you converted to Islam. When

did you do that?

A August of 2009.

…

Q Now, Ms. Everhart, you are testifying today

wearing a head covering as well as a face

covering?

A Yes, ma’am.

Q And do you normally wear a face covering

and a head covering in public?

A Yes, ma’am. Well, sometimes I do and, you

know, this is how I cover.

Q And you say that -A It’s called a Niqab.

7

Q Can you spell that for the reporter.

A N-I-Q-A-B.

Q And how long have you been covering you?

A Since I had converted over. For the past eight

years.

Pet. App. at 55a (emphasis added). Everhart also

testified that she is a musician and “an upcoming

singer and rapper.” Id. at 54a. There were no

objections as to Everhart testifying in a niqab, and the

trial court made no effort to prohibit Everhart from

testifying in this manner or to otherwise conduct any

inquiry into the propriety of the testimony.

d. On July 26, 2017, the jury found Petitioner

guilty of second degree murder while armed. Pet.

App. at 47a. Cook was also found guilty of second

degree murder while armed. On July 9, 2018, the

court sentenced Petitioner to 20 years imprisonment.

Id. Cook was also sentenced to 20 years the same day.

Both Petitioner and Cook appealed to the D.C. Court

of Appeals.

3.a. While the appeal was pending, Petitioner

and Cook filed separate post-trial motions pursuant

to D.C. Code § 23-110. In his motion, Petitioner

argued that (1) his trial counsel’s performance was

deficient because counsel failed to object to the

wearing of the niqab by Everhart during her trial

testimony, in violation of Petitioner’s Confrontation

Clause rights; and (2) counsel’s failure to object

prejudiced Petitioner, in that the inability to confront

Everhart led to Petitioner’s conviction.

b. After oral argument, the trial court issued its

ruling on December 29, 2020, denying Petitioner’s

8

and Cook’s motions. Pet. App. at 15a-44a. The trial

court held that it was not a violation of Petitioner’s

Confrontation Clause rights for Everhart to testify

while wearing a niqab, because, the trial court

reasoned, (1) the “face-to-face” element of the

Confrontation Clause was satisfied, (2) in any event,

Everhart’s ability to testify while wearing a niqab

furthered an important public policy and the

reliability of her testimony was otherwise reassured;

and (3) based on those findings, Petitioner’s counsel

was not ineffective for failing to object because such

an objection would have been meritless. Pet. App. at

43a.

4.a The D.C. Court of Appeals affirmed the

verdicts as well as the trial court’s decision on the

§ 23-110 motions on December 15, 2022. Pet. App. at

1a-14a. In addressing the related rulings on the

Confrontation Clause and ineffective assistance of

counsel issues, the Court of Appeals held, inter alia,

that the trial court did not commit plain error by

holding there was no Confrontation Clause violation,

and that trial counsel’s performance did not fall below

an objective standard of reasonableness by not raising

the issue at trial. Pet. App. at 3a-6a. However, in so

ruling, the Court of Appeals committed some of the

same errors that the trial court did, or ignored them

entirely. Namely, it did not substantively address the

trial court’s balancing away of Mr. Hancock’s

Confrontation Clause rights in order to vindicate Ms.

Everhart’s “religious freedom”; it did not adequately

engage with the relevant case law supporting a

finding of a Confrontation Clause violation in

circumstances similar to those at issue here; and

based on its own truncated analysis, found that trial

counsel’s failure to raise the issue did not fall below

9

an objective standard of reasonableness. The Court

of Appeals denied rehearing and rehearing en banc on

February 6, 2023.

REASONS FOR GRANTING THE PETITION

The Petition should be granted because it

squarely presents two constitutional issues of

exceptional importance. First, Petitioner did not

receive a constitutionally adequate criminal trial

(where his liberty interests were at stake) because he

was improperly denied his Sixth Amendment right to

confront witnesses testifying against him. The trial

court committed plain error by permitting the sole

witness to the killing to testify in a niqab, which

impermissibly hindered Petitioner’s ability to crossexamine her and for the jury to assess her credibility.

In denying Petitioner’s appeal on this issue, the Court

of Appeals failed to substantively address the trial

court’s use of a novel – and dangerous – “religious

freedom” test, whereby a criminal defendant’s

constitutional rights can be “balanced” against the

purported First Amendment rights of a witness at

trial. There is no basis for such a “balancing” test in

the law or this Court’s precedent.

Second, review is necessary to address the

exceptionally important question of whether

Petitioner’s Sixth Amendment rights were violated

because he did not receive effective assistance of

counsel. Petitioner’s trial counsel failed to raise the

Confrontation Clause issue—which should have been

abundantly obvious—at trial. In denying Petitioner’s

appeal on this issue, the Court of Appeals’ reasoning

was that there was no settled law on the issue of

whether Ms. Everhart’s testimony constituted a

10

Confrontation Clause violation, but that limited

reading ignores the fundamental right to

confrontation in the first instance. For these reasons,

the Petition should be granted.

I. The D.C. Court of Appeals’ Decision

Presents Two Constitutional Issues of

Exceptional Importance.

The D.C. Court of Appeals’ decision presents two

constitutional issues of exceptional importance – i.e.,

whether Petitioner’s confrontation and effective

assistance of counsel rights under the Sixth

Amendment were violated. The Court of Appeals’

affirmance of the trial court’s decisions was flawed, in

that it held that Petitioner could not meet the plain

error standard as to the Confrontation Clause

violation, and that trial counsel’s performance did not

fall below an objective standard of reasonableness.

Both errors warrant this Court’s intervention.

A. The Court of Appeals Wrongly Held that

Petitioner Did Not Satisfy the Plain

Error Standard as to the Confrontation

Clause Violation.

The Court of Appeals’ judgment was flawed in

that it held that Petitioner did not satisfy the plain

error standard as to the Confrontation Clause

violation. Four elements must be satisfied for a

showing of plain error: (1) there was an error, (2) the

error was “clear” or “obvious”, i.e., “so egregious and

obvious as to make the trial judge and prosecutor

derelict in permitting it, despite the defendant’s

failure to object[]”, (3) the error affected the

defendant’s substantial rights, i.e., there was a

11

reasonable probability that it had a prejudicial effect

on the outcome of the trial; and (4) the error seriously

affected the fairness, integrity or public reputation of

the judicial proceeding. Comford v. United States,

947 A.2d 1181, 1189–90 (D.C. 2008).

Permitting Everhart to testify in a niqab was

plain error. As a preliminary matter, under the

Confrontation Clause, the accused must have “an

opportunity, not only of testing the recollection and

sifting the conscience of the witness, but of compelling

him to stand face to face with the jury in order that

they may look at him, and judge by his demeanor

upon the stand and the manner in which he gives his

testimony whether he is worthy of belief.” California

v. Green, 399 U.S. 149, 157-58 (1970) (quoting Mattox

v. United States, 156 U.S. 237, 242-243 (1895)). “[A]

witness’s face [is] the most expressive part of the body

and something that is traditionally regarded as one of

the most important factors in assessing credibility.”

Romero v. State, 173 S.W.3d 502, 506 (Tex. Crim. App.

2005). Facial expression, along with tone, demeanor,

and emphasis, “make the words uttered ... convincing

or not.” Howard v. Moore, 131 F.3d 399, 408 (4th Cir.

1997) (en banc). Further, as this Court has held, “a

defendant’s right to confront accusatory witnesses

may be satisfied absent a physical, face-to-face

confrontation at trial only where denial of such

confrontation is necessary to further an important

public policy and only where the reliability of the

testimony is otherwise assured.” Maryland v. Craig,

497 U.S. 836, 850 (1990).

Here, the niqab worn by Everhart prevented the

jury from adequately assessing Everhart’s testimony

and denied Petitioner’s constitutional right to face-to-

12

face confrontation. Testifying in a niqab or other

similar face-shielding garments poses serious

concerns for a defendant’s Sixth Amendment rights.

United States v. Alimehmeti, 284 F. Supp. 3d 477

(S.D.N.Y. 2018). This is particularly important

because Everhart was by far the government’s most

important witness at trial, as she was the only

testifying witness who was present at the scene of

Gladden’s killing. Without Everhart’s testimony,

there was no viable case against Petitioner. Yet

despite the importance of Everhart to the

government’s case, the trial court permitted her to

testify wearing a restrictive garment that completely

shielded her facial expressions from counsel and the

jury – even though Everhart herself admitted that she

only wore the niqab “sometimes” and further stated

that she was an “upcoming singer and rapper.” Pet.

App. at 54a-55a.

The Court of Appeals ruled that the fact that the

trial court did not stop Everhart from testifying while

wearing the niqab was not plain error. Although it

correctly noted that “there is no precedent in this

court or the Supreme Court indicating that

appellants’ rights were violated when Everhart

testified wearing a niqab[,]” it also premised its ruling

on a finding that “Appellants point only to cases that

are both factually distinct and not binding on this

court.” Pet. App. at 4a. As an initial matter, it is

undisputed that this Court has held that criminal

defendants have a right to confront their accusers,

Green, 399 U.S. at 157-58, and that right may be

satisfied “absent a physical, face-to-face confrontation

at trial only where denial of such confrontation is

necessary to further an important public policy and

only where the reliability of the testimony is

13

otherwise assured.” Craig, 497 U.S. at 850 (emphasis

added). These principles are clearly “settled law.”

Additionally, the Court of Appeals’ analysis of

the factually similar cases cited by Petitioner

overlooked several key points. First, the Court of

Appeals marginalized the Southern District of New

York’s ruling in Alimehmeti as “inapposite” without

further explanation. Pet. App. at 4a-5a n.1. To the

contrary, Alimehmeti is readily applicable to the

circumstances here. In that case, the court was

presented with the question of whether undercover

officers should be permitted to wear a disguise while

testifying against a defendant charged with terrorism

crimes. One of the alternatives discussed to preserve

the officers’ anonymity was to have them testify in a

niqab. The court rejected this approach, noting that:

Trial testimony by disguised witnesses might

compromise [the defendant’s] ability directly to

confront his most central accusers at trial

insofar as any disguise impedes [the

defendant’s] (or the jury’s) ability to assess the

witnesses’ comportment on the stand. This

arrangement is in tension with the

Constitution’s guarantee to a criminal

defendant of the right “to be confronted with

the witnesses against him,” U.S. Const. amend.

VI, and “a face-to-face meeting with witnesses

appearing before the trier of fact[.]”

Alimehmeti, 284 F. Supp. 3d at 489 (quoting Coy v.

Iowa, 487 U.S. 1012, 1016 (1988)). Notably, the

language in Alimehmeti is quite clear that allowing a

witness to testify in a niqab “is in tension with the

Constitution’s guarantee” of the right to confrontation

14

of

witnesses,

because

testimony

in

such

circumstances prevents the defendant (and the jury)

from observing the witness’s “comportment” or

demeanor in response to cross-examination. That

principle should also apply here. Id.

Second, the Court of Appeals stated, again

without further explanation, that the decision in

People v. Ketchens, No. B282486, 2019 WL 2404393,

at *8 (Cal Ct. App. 2d Dist. June 7, 2019), “militates

against appellants’ argument[.]” Pet. App. at 4a-5a

n.1. To the contrary, the central principle set forth in

Ketchens – i.e., that “the defendant is deprived of a

face-to-face encounter with a witness who testifies in

court wearing a ski mask or a disguise that conceals

almost all of [the witness’s] face from view” and that

“[a]llowing the witness to use such a disguise would

effectively remove the ‘face from ‘face-to-face

confrontation” (Id. at *8) – militates in Petitioner’s

favor. Although the court in Ketchens found there was

no Confrontation Clause violation, that ruling was

based on different factual circumstances; in that case,

the ski mask in question covered the witness’s entire

face, but for her right eye, which was visible slightly,

a portion of her nose, and a little bit of her left eye,

whereas here, only Everhart’s eyes were barely

visible.

Third, the Court of Appeals found that the

decision in Romero v. Texas, 173 S.W.3d 502 (Tex.

Crim. App. 2005), “does not account for the religious

concerns presented in this case.” Pet. App. at 4a-5a

n.1. Romero found a Confrontation Clause violation

when the witness wore “dark sunglasses, a baseball

cap pulled down over his forehead, and a long-sleeved

jacket with its collar turned up and fastened so as to

15

obscure [his] mouth, jaw, and the lower half of his

nose. The net effect and apparent purpose of [his]

‘disguise’ was to hide almost all of his face from view.”

173 S.W.3d at 503. Those circumstances are very

similar to those under which Everhart testified here.

More importantly, in setting Romero aside, the

Court of Appeals did not explain why the supposed

“religious concerns presented in this case” (Pet. App.

at 5a n.1) should trump Petitioner’s rights or serve as

an adequate public policy exception to obviate the

requirements under this Court’s precedent and the

Confrontation Clause. Indeed, there is no prevailing

authority that even suggests that “religious concerns”

constitute a sufficient public policy interest capable of

balancing away Sixth Amendment confrontation

rights that implicate liberty interests. Balancing

Petitioner’s liberty interests and his constitutional

rights on the altar of “religious freedom” – especially

when such religious freedom is practiced only

occasionally and conveniently – is unacceptable under

the Confrontation Clause. The liberty interests at

stake are simply too great to allow any witness –

much less a witness upon whose testimony a lengthy

prison sentence depends – to testify without allowing

counsel and the jury to assess facial expressions, and

consequently, credibility while answering crucial

questions regarding the events surrounding a crime.

And there was every reason to doubt the sincerity of

Everhart’s religious belief and her decision to testify

wearing a niqab, because she freely admitted that she

only wore it “sometimes” and that she participated in

secular activities such as singing and rapping that are

inconsistent with wearing a niqab. Pet. App. at 54a55a. Those circumstances were sufficient to render as

16

plain error the trial court’s decision to allow Everhart

to testify while wearing the niqab.

B. The Court of Appeals Erred by Finding

that Trial Counsel’s Performance Did

Not Fall Below an Objective Standard of

Reasonableness.

The Court of Appeals also erred by finding that

trial counsel’s failure to raise the Confrontation

Clause issue did not fall below an objective standard

of reasonableness. To establish ineffective assistance

of counsel, the defendant must show that counsel’s

performance was deficient and that this deficient

performance prejudiced the defendant such that it

denied the defendant a fair trial. Strickland v.

Washington,

466

U.S.

668,

687

(1984);

Fatumabahirtu v. United States, 148 A.3d 260, 263–

64 (D.C. 2016) (quoting Vaughn v. United States, 93

A.3d 1237, 1271 (D.C. 2014). To show deficient

performance of trial counsel, a defendant must show

that counsel’s representation fell below an objective

standard of reasonableness. Strickland, 466 U.S. at

668; Cosio v. United States, 927 A.2d 1106, 1123 (D.C.

2007) (en banc) (citation omitted). Failure by counsel

to object at trial is a valid basis for an ineffective

assistance of counsel claim. Chatmon v. United

States, 801 A.2d 92, 95 (D.C. 2002).

In its ruling, the Court of Appeals held that

“[b]ecause there are no cases in this court or the

Supreme Court that address a similar situation—a

witness testifying while wearing a religious

covering—any objection would have been based on

unsettled law rather than on existing precedent.” Pet.

App. at 5a-6a. The Court of Appeals further stated

17

that “[f]ailure to object based on unsettled law is not

an error, let alone an error bringing representation

‘below an objective standard of reasonableness.’” Id.

at 6a (citation and internal quotation marks omitted).

But as noted above, the principles informing

Confrontation Clause rights are well-settled by this

Court, and other courts have found a Confrontation

Clause violation in similar circumstances. See supra

at 11-15.

In any event, the particular circumstances here

exacerbated the Confrontation Clause violation,

because trial counsel was given multiple

opportunities to object and failed to do so. The

prosecutor even previewed at the outset of the trial

that Everhart would be testifying in the niqab. The

need for an objection should have been obvious to

Petitioner’s trial counsel, and particularly given

Everhart’s importance to the government’s case.

Moreover, there was every reason to doubt the

sincerity of Everhart’s religious belief and her

decision to testify wearing a niqab, as she freely

admitted that she only wore it “sometimes” and that

she participated in secular activities such as singing

and rapping that are inconsistent with wearing a

niqab. Pet. App. at 54a-55a. Yet Petitioner’s counsel

still failed to object. Like the trial court below, the

Court of Appeals’ analysis of the issue erred by not

accounting for those factors, thus warranting this

Court’s intervention.

18

CONCLUSION

For the foregoing reasons, Petitioner Don

Fitzgerald Hancock’s petition for a writ of certiorari

should be granted.

Respectfully submitted,

Charles B. Wayne

Counsel of Record

Paul D. Schmitt

DLA PIPER LLP (US)

500 Eighth Street, N.W.

Washington, D.C. 20004

(202) 799-4253

charles.wayne@dlapiper.com

paul.schmitt@dlapiper.com

Counsel for Petitioner

May 8, 2023

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A – Memorandum Opinion and

Judgment, District of Columbia Court of

Appeals (December 15, 2022) ............................. 1a

APPENDIX B – Findings of Fact and Conclusions

of Law on Defendants’ § 23-110 Motion,

Superior Court for the District of Columbia

(December 29, 2020) ......................................... 15a

APPENDIX C – Order denying rehearing,

District of Columbia Court of Appeals

(February 6, 2023) ............................................ 45a

APPENDIX D – Judgment, Superior Court for

the District of Columbia (July 9, 2018)............ 47a

APPENDIX E – Excerpted Trial Transcript,

Superior Court for the District of Columbia

(July 10, 2017)................................................... 50a

APPENDIX F – Excerpted Trial Transcript,

Superior Court for the District of Columbia

(July 11, 2017)................................................... 53a

1a

APPENDIX A

DISTRICT OF COLUMBIA

COURT OF APPEALS

————

Nos. 18-CF-738, 18-CF-758, 21-CO-4 & 21-CO-46

————

REYNAUD COOK & DON FITZGERALD HANCOCK,

v.

Appellants,

UNITED STATES,

————

Appellee.

Appeals from the Superior Court

of the District of Columbia

(2013-CF1-9030 & 2013-CF1-15041)

(Hon. Judith Bartnoff & Hon. Craig Iscoe,

Trial Judges)

————

(Argued May 5, 2022

Decided December 15, 2022)

————

MEMORANDUM OPINION AND JUDGMENT

Before BECKWITH, EASTERLY, and ALIKHAN, Associate

Judges.

PER CURIAM: Following a jury trial, appellants

Reynaud Cook and Don Hancock were convicted of

second-degree murder. In these consolidated appeals,

both appellants argue that the trial court erred by

allowing a witness to testify while wearing a niqab,

and that counsel’s failure to object to the witness’s

2a

wearing the niqab constituted ineffective assistance of

counsel. Hancock separately challenges (1) the trial

court’s denial of his motions to sever his trial from

Cook’s; (2) the admission of statements from three

witnesses’ grand jury testimony; and (3) the trial

court’s use of an aiding and abetting jury instruction.

Cook separately challenges the sufficiency of the

evidence to support his conviction. We affirm.

I. Factual Background and Procedural History

The evidence at trial showed the following. In July

2007, Nacarto Gladden and his friend Alisha Everhart

drove to Eastern Avenue to purchase PCP from

Hancock. When they arrived, Hancock was standing

outside with Cook. Everhart asked Hancock for the

PCP, and he responded that they would need to walk

to a different block to get it. Everhart first walked to

Quarles Street with Hancock to retrieve the drugs, but

then returned to where Cook and Gladden were

waiting while Hancock retrieved his stash. After he

obtained the PCP, Hancock went back to join

Everhart, Gladden, and Cook. Hancock handed the

drugs to Gladden through the passenger-side window

of Everhart’s car.

Hancock then asked Everhart for a ride to his car so

that he could drive Cook somewhere and to avoid the

police discovering that he was in possession of PCP.

He told her that his car was behind the building where

they were parked. Everhart agreed, Hancock got into

the car with her and Gladden, and Everhart drove

around the block to drop Hancock off at his car. When

the trio arrived at Hancock’s car, both Hancock and

Gladden got out. Hancock then grabbed Gladden and

the two began fighting. Everhart testified that she

heard Gladden ask Hancock, “why you got a gun?” and

that she got out of the car to break up the fight. Cook

3a

then approached Everhart, holding his finger up to his

mouth to indicate that she should be quiet. Everhart

also testified that Cook was holding a black gun with

a pearl handle. Everhart then ran from the scene. She

testified that she heard three shots being fired as she

was running away.

Police discovered Gladden at the scene. He was

deceased and had multiple gunshot wounds. Around

Gladden’s body were three .9-millimeter cartridge

casings, a stocking cap containing Hancock’s DNA,

and a cigarette bearing both his and Hancock’s DNA.

Cook and Hancock were charged with first-degree

murder while armed. The jury found both guilty of

second-degree murder. This appeal followed.

II. Discussion

A. Everhart’s Testifying in a Niqab

At trial, Everhart testified while wearing a niqab,

a religious covering that obscures the wearer’s face

and body and shows only the wearer’s eyes. Everhart

explained that she wears the niqab as part of her

Muslim faith. Neither Cook’s nor Hancock’s trial

counsel objected to Everhart’s wearing the niqab while

testifying. After the trial, both appellants filed motions

to vacate their sentences pursuant to D.C. Code § 23110, asserting that their counsels’ failure to object to

Everhart’s wearing the niqab amounted to ineffective

assistance of counsel. The trial court denied the

motions. On appeal, both appellants argue that (1) the

trial court erred by allowing Everhart to testify while

wearing a niqab because it violated their rights under

the Confrontation Clause; and (2) the trial court erroneously denied their post-conviction motions alleging

ineffective assistance of counsel due to their trial

4a

counsels’ failure to object to Everhart’s testifying while

wearing a niqab.

Because appellants did not object to Everhart’s

wearing a niqab while testifying at trial, we review

only for plain error. Williams v. United States, 130

A.3d 343, 347 (D.C. 2016). To demonstrate plain error,

the “appellant first must show (1) error, (2) that is

plain, and (3) that affected [the] appellant’s substantial

rights. Even if all three of these conditions are met,

this court will not reverse unless (4) the error seriously

affects the fairness, integrity, or public reputation of

judicial proceedings.” Lowery v. United States, 3 A.3d

1169, 1173 (D.C. 2010) (internal quotation marks

omitted)).

Appellants have not satisfied their burden under

plain error review. As both appellants acknowledge,

there is no precedent in this court or the Supreme

Court indicating that appellants’ rights were violated

when Everhart testified wearing a niqab. Appellants

point only to cases that are both factually distinct and

not binding on this court.1 Thus, we cannot say that

1

For example, appellants rely on United States v. Alimehmeti,

284 F. Supp. 3d 477 (S.D.N.Y. 2018), where a district court judge

found that partially closing the courtroom to protect an undercover informant’s identity was a better alternative than allowing

him to testify while wearing a disguise, id. at 489; People v.

Ketchens, No. B282486, 2019 WL 2404393 (Cal. Ct. App. June 7,

2019), an unpublished California case where the court found no

Confrontation Clause issue with a Muslim witness testifying

while wearing a headscarf that exposed only her eyes and nose,

and declined to decide whether a scarf covering the witness’s

“entire face” would violate the Confrontation Clause because any

potential error would be harmless beyond a reasonable doubt, id.

at *9; and Romero v. Texas, 173 S.W.3d 502 (Tex. Crim. App. 2005),

where a Texas appellate court held that there was a Confrontation

Clause issue when an adult witness, who feared retaliation by the

5a

the trial court judge plainly erred by failing to determine sua sponte that Everhart could not wear a niqab

while testifying. See Rose v. United States, 49 A.3d

1252, 1256-58 (D.C. 2012) (finding no plain error “where

there [wa]s no clear case law in our jurisdiction”).

To prevail on an ineffective assistance of counsel

claim, appellants must show both that their trial counsel’s

representation was deficient and that the deficient

performance prejudiced their defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish

deficient performance, we consider whether “counsel’s

‘representation fell below an objective standard of

reasonableness.’” Bost v. United States, 178 A.3d 1156,

1210 (D.C. 2018) (quoting Otts v. United States, 952

A.2d 156, 164 (D.C. 2008) (en banc)). If counsel’s

performance was deficient, the defendant must then

show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Clark v. United States, 136

A.3d 334, 341 (D.C. 2016) (quoting Strickland, 466

U.S. at 694).

While a counsel’s failure to object at trial can be a

valid basis for an ineffective assistance claim, Chatmon

v. United States, 801 A.2d 92, 95 (D.C. 2002), we

discern no ineffectiveness in counsels’ decision not to

object to Everhart’s niqab. Because there are no cases

in this court or the Supreme Court that address a

similar situation—a witness testifying while wearing

a religious covering—any objection would have been

based on unsettled law rather than on existing

defendant, testified in a disguise that obscured his face, despite

the fact that the defendant already had the witness’s name and

home address, id. at 505-07. The first case is inapposite, the

second militates against appellants’ argument, and the third does

not account for the religious concerns presented in this case.

6a

precedent. Failure to object based on unsettled law is

not an error, let alone an error bringing representation

“below an objective standard of reasonableness.” Bost,

178 A.3d at 1211; cf. Otts, 952 A.2d at 165 (rejecting

the argument that “trial counsel’s failure to anticipate

[a subsequent decision of this court] . . . fell below

prevailing professional norms, or was enough to

overcome the presumption that counsel rendered

reasonable professional assistance” (internal quotation

marks omitted)). Accordingly, we do not find that

either trial counsel’s failure to make an objection

based on an unsettled area of law constitutes deficient

performance under Strickland.2

B. Severance

Hancock argues that the trial court abused its

discretion by denying his severance motions because

his defense was irreconcilable with Cook’s and the jury

inferred his guilt from this irreconcilability.

At trial, the court instructed the jury that Cook’s

theory of the case proposed that Everhart had fabricated the allegation that Cook was present at the scene

at all. The court further instructed that Hancock’s

defense was that the government had failed to meet its

burden of proof and that he was not involved in

Gladden’s murder. Hancock’s counsel moved for severance on several occasions, each time alleging that

Cook’s defense strategy was actually to place the

blame on Hancock.

We review the trial court’s decision to deny severance for abuse of discretion. See Tillman v. United

2

While we find no error on the facts of this case, we do not take

a position on the general question whether there can ever be a

Confrontation Clause violation in cases where a witness testifies

wearing a niqab.

7a

States, 519 A.2d 166, 169 (D.C. 1986). To show a need

for severance on the grounds of irreconcilable defenses, a

defendant must establish a “‘clear and substantial

contradiction between the respective defenses,’ causing

inherent irreconcilability between them, and that the

irreconcilability creates a danger or risk that the jury

will draw an improper conclusion from the existence of

the conflicting defenses alone that both defendants are

guilty.” Garris v. United States, 559 A.2d 323, 329

(D.C. 1989) (quoting Tillman, 519 A.2d at 170). If there

is an irreconcilability, we then “determine whether there

[is] enough independent evidence of appellant’s guilt—

beyond that required for the government to survive a

motion for judgment of acquittal—so that the court

reasonably could find, with substantial certainty, that

the conflict in defenses alone would not sway the jury

to find appellant guilty.” Tillman, 519 A.2d at 171

(emphasis omitted) (quoting Ready v. United States,

445 A.2d 982, 987 (D.C. 1982)).

We will assume without deciding that Cook’s and

Hancock’s defenses are irreconcilable, and we conclude

that this conflict alone would not lead the jury to

unjustifiably infer Hancock’s guilt. The evidence against

Hancock was substantial. Everhart testified that she

heard Gladden say, “Don, why you got a gun?” Several

witnesses testified that, after the shooting, Everhart

told other people that Hancock had shot Gladden, or

that the two had been fighting and then she heard

shots. And Hancock’s DNA was found on a stocking

cap and a cigarette on the ground near where Gladden

was shot. This evidence is plainly sufficient to establish Hancock’s guilt beyond that required to survive a

8a

motion for judgment of acquittal, and thus we discern

no abuse of discretion.3

C. Use of Certain Grand Jury Testimony

Hancock next argues that the trial judge erred by

allowing the government to use grand jury testimony

from Everhart and two other witnesses that Everhart

had talked to after the shooting—Nikki Rogers and

Ebony Thomas—without trying to properly refresh

their memories or laying a proper foundation for

impeachment. He also contends that admission of the

grand jury testimony as substantive evidence violated

his Sixth Amendment right to confront the witnesses

against him because Everhart and Rogers were not

sufficiently available for cross-examination. The specifics

of the challenged colloquies are as follows.

Everhart. The government sought to elicit testimony

from Everhart that Hancock had wanted a ride to his

car to prevent the police from discovering that he was

in possession of PCP. Everhart instead testified that

Hancock had wanted a ride to his car so that he could

drive Cook somewhere. The prosecutor then presented

3

We have noted that the sufficient-independent-evidence test

may have been displaced by Zafiro v. United States, 506 U.S. 534

(1993), in which the Supreme Court held that a court should

grant severance “only if there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants,

or prevent the jury from making a reliable judgment about guilt

or innocence,” id. at 539; see Hargraves v. United States, 62 A.3d

107, 116 n.29 (D.C. 2013) (noting that the sufficient-independentevidence test may be “questionable in light of Zafiro”); Jenkins v.

United States, 113 A.3d 535, 542-43 (D.C. 2015) (similar). We need

not resolve the issue in this case because we do not find an abuse

of discretion under either test. In light of both the physical

evidence and testimony presented at trial, any irreconcilability in

the defenses would not have prevented the jury from making a

reliable judgment as to Hancock’s guilt or innocence.

9a

Everhart with her grand jury testimony, which she

confirmed was hers, and read aloud her statement that

Hancock had wanted a ride because he “ain’t trying to

be walking around with this stash on me because the

police out there.” Hancock agreed that she had made

that statement and adopted it, testifying that Hancock

had given her both reasons.

Rogers. The government sought to elicit testimony

about a conversation that Rogers, who is Everhart’s

sister-in-law, had with Everhart about how Hancock

and Gladden had been in a fight and how Hancock had

a gun. Rogers testified that Everhart had told her that

Hancock and Gladden had “got[ten] into some kind

of altercation.” When the prosecutor asked Rogers if

Everhart had said anything about a weapon, Rogers

said that she had not. She then asked Rogers about

her grand jury testimony, and read aloud her statement that Everhart had “heard someone say he has

got a gun when she was running away.” When the

prosecutor asked Rogers if this was in fact what she

remembered happening, she agreed.

Thomas. The government sought to elicit testimony

from Thomas, who is Gladden’s brother’s girlfriend,

about a conversation she had with Everhart after the

shooting. The prosecutor asked Thomas if Everhart

had told her “how [Hancock] had gotten into the

picture.” Thomas replied “[n]o.” The prosecutor then

asked if Thomas remembered testifying before the

grand jury, and when she responded “[y]es,” the

prosecutor read aloud the statement from her grand

jury testimony that “[Everhart] said they went to get

the [PCP] dipper from the guy, [Hancock],” to which

Thomas responded “[r]ight.”

Hancock’s counsel did not object to any of the

testimony that Hancock challenges on appeal;

10a

accordingly, we review for plain error. See Hunter v.

United States, 606 A.2d 139, 144 (D.C. 1992)

(“Objections must be made with reasonable specificity;

the judge must be fairly apprised as to the question on

which he is being asked to rule.”). We similarly review

his Sixth Amendment argument for plain error

because he did not make this objection at trial. Bryant

v. United States, , 696 (D.C. 2016).

On the evidentiary claim, we need not engage in an

extended assessment of the above colloquies because,

even if we assume that admission of these three

grand jury statements was error, Hancock has not

shown that the error affected his “substantial rights.”

Lowery, 3 A.3d at 1173; see Duvall v. United States,

975 A.2d 839, 847 n.9 (D.C. 2009) (“[T]he appellant

bears the burden . . . to show that the alleged error

affected his substantial rights.”). As explained, the

evidence against Hancock was substantial, see supra

p. 5, including testimony from Everhart, Rogers, and

Thomas unrelated to the challenged grand jury testimony, and Hancock’s DNA at the scene. Against that

evidence, the challenged grand jury statements were

neither particularly illuminating nor incriminating.

Everhart’s grand jury statement that Hancock wanted

a ride to avoid being discovered with drugs has little

bearing on his guilt or innocence; the same is true of

Thomas’s grand jury statement that Everhart had told

her that she and Gladden had gone to buy PCP from

Hancock. Thomas’s and Rogers’s grand jury statements were also cumulative of Hancock’s testimony—

after all, they were merely repeating what Everhart

had told them, and she had already testified to the

events in question. To be sure, Thomas’s and Rogers’s

testimony enhanced Everhart’s credibility by showing

that Everhart had described the shooting shortly after

it occurred, but that would be the case without the two

11a

snippets of their grand jury testimony. There is thus

no reason to believe that the outcome of the trial would

have been different in the absence of this limited

grand jury testimony.

On Mr. Hancock’s Confrontation Clause claim, we

discern no error, let alone plain error. The Sixth

Amendment guarantees a criminal defendant “the

right . . . to be confronted with the witnesses against

him.” U.S. Const. amend. XI. This right prohibits the

“admission of testimonial statements of a witness who

d[oes] not appear at trial unless he [i]s unavailable to

testify, and the defendant had . . . a prior opportunity

for cross-examination.” Crawford v. Washington, 541

U.S. 36, 53-54 (2004). But “when the declarant appears

for cross-examination at trial, the Confrontation Clause

places no constraints at all on the use of his prior

testimonial statements.” Id. at 59 n.9. As long as a

defendant has the “full and fair opportunity” to crossexamine the witness, the right is not violated simply

because a witness provides testimony that is “marred

by forgetfulness, confusion, or evasion.” United States

v. Owens, 484 U.S. 554, 558 (1988) (quoting Delaware

v. Fensterer, 474 U.S. 15, 21-22 (1985) (per curiam)).

This court applied this reasoning in Diggs v. United

States, 28 A.3d 585 (D.C. 2011), holding that there was

no Confrontation Clause violation when a witness

could not remember certain details about an event and

was then impeached with his grand jury testimony in

which he had testified about the event at length,

because the defense still had the opportunity to crossexamine him, id. at 593-94.

Hancock argues that Everhart and Rogers were “not

constitutionally ‘present’ for cross-examination, and

[that] their total lack of recall made it impossible for

Hancock’s counsel to fully cross-examine them.” But

12a

even if both witnesses had failed to recall the entirety

of their relevant grand jury testimony, they were

physically present at trial, and the defense had the

“full and fair” opportunity to cross-examine them.

Consistent with Diggs, we find no violation of

Hancock’s Sixth Amendment rights from the use and

admission of the grand jury statements.

D. Aiding and Abetting Instruction

Hancock next argues that the trial court abused its

discretion by instructing the jury that he could be

found guilty of aiding and abetting, even though the

government’s theory did not identify which defendant

was the principal. Our court’s precedent forecloses this

argument. While it is true that, “at a minimum, . . .

there must be evidence to support that someone else

acted as a principal, as ‘[o]ne cannot aid and abet

himself,’” Tyree v. United States, 942 A.2d 629, 636

(D.C. 2008) (second alteration in original) (quoting

Brooks v. United States, 599 A.2d 1094, 1099 (D.C.

1991)), we have held that the trial court may provide

an aiding and abetting instruction “when more than

one gunman participates in a shooting but the evidence is unclear which gunman is responsible for

firing the bullets,” Leonard v. United States, 602 A.2d

1112, 1114 (D.C. 1992) (citing Gillis v. United States,

586 A.2d 726, 728 (D.C. 1991) (per curiam)). The

government is permitted to proceed on both a principal

and an aider and abettor theory “where the evidence

is disputed as to who . . . was the principal, so long as

there is evidence that the defendant participated—in

one capacity or the other—in the events that led to

[the] commission of the crime.” Tyree, 942 A.2d at 637.

In this case, the government theorized that either

Cook was the principal who shot Gladden with

Hancock’s assistance, or Hancock shot Gladden

13a

himself with Cook’s aid. Hancock argues that under

the government’s theory, “either defendant could have

been the principal, thus raising the specter that

Hancock was convicted as both the principal and the

aider/abettor.” But with the aiding and abetting

instruction, Hancock would not have been convicted as

both the principal and the aider/abettor. Rather, the

aiding and abetting instruction permitted the jury to

convict Hancock for either role. Our precedents allow

for this.

E. Sufficiency of the Evidence

Finally, Cook argues that there was insufficient evidence to support his conviction as either the principal

offender or as an aider and abettor. We review sufficiency claims de novo. Robinson v. United States, 263

A.3d 139, 141 (D.C. 2021). “Considering the facts in

the light most favorable to the verdict, we must deem

the evidence sufficient if ‘any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.’” Id. (quoting Miller v.

United States, 209 A.3d 75, 77 (D.C. 2019)). It is only

if “the government has produced no evidence from

which a reasonable mind might fairly infer guilt

beyond a reasonable doubt” that we reverse. Clark v.

United States, 147 A.3d 318, 326 (D.C. 2016).

Cook claims that the government presented insufficient evidence that he was present at the scene or,

alternatively, that if he was present, he was involved

in the shooting. The essence of his argument is that

the government’s sole eyewitness was Everhart, and

that she was not a reliable witness. We have held on

several occasions that we do not “substitute [our]

judgment for that of the fact-finder when it comes to

assessing the credibility of a witness . . . based on

factors that can only be ascertained after observing

14a

the witness testify.” David v. United States, 957 A.2d

4, 8 (D.C. 2008) (alteration in original) (quoting

Robinson v. United States, 928 A.2d 717, 727 (D.C.

2007)); see Bouknight v. United States, 867 A.2d 245,

251 (D.C. 2005) (“The determination of credibility is

for the finder of fact, and is entitled to substantial

deference.”). We defer to the jury’s determination as to

whether Everhart was a credible witness and how her

testimony factored into its verdict. We cannot say that

the evidence was insufficient for the jury to find,

beyond a reasonable doubt, that Cook was culpable.

III. Conclusion

For the foregoing reasons, the judgment of the

Superior Court is

Affirmed.

ENTERED BY DIRECTION OF THE COURT:

/s/ Julio A. Castillo

JULIO A. CASTILLO

Clerk of the Court

Copies emailed to:

Honorable Judith Bartnoff

Honorable Craig Iscoe

Director, Criminal Division

Copies e-served to:

Sean R. Day, Esquire

Paul D. Schmitt, Esquire

Chrisellen R. Kolb, Esquire

Assistant United States Attorney

15a

APPENDIX B

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

Criminal Division

————

Case No. 2013 CF1 009030

————

UNITED STATES OF AMERICA

v.

REYNAUD COOK

————

Case No. 2013 CF1 15041

————

UNITED STATES OF AMERICA

v.

DON HANCOCK

————

FINDINGS OF FACT AND CONCLUSIONS OF

LAW ON DEFENDANTS’ § 23-110 MOTION

These matters are before the Court on the following

filings: Defendant Reynaud Cook’s “Motion to Vacate

Conviction Pursuant to D.C. Code § 23-110 And For

Other Relief” filed on April 16, 2020; Defendant Don

Hancock’s “Motion to Vacate, Set Aside, or Correct

Sentence Pursuant to D.C. Code § 23-110, And For

Other Relief” filed on June 12, 2020; the United States’

“Opposition to Defendants’ § 23-110 Motions” filed on

August 7, 2020; Defendant Cook’s “Reply in Support of

Motion to Vacate Conviction Pursuant to D.C. Code

16a

§ 23-110 And For Other Relief” filed on August 10,

2020; and Defendant Hancock’s “Reply in Support of

Motion to Vacate Conviction Pursuant to D.C. Code

§ 23-110 And For Other Relief” filed on August 14,

2020.1

The Court held its first remote hearing to address

these filings on November 10, 2020. The following

individuals were present for the hearing: AUSA Grace

Richards, Attorney Sean Day (Counsel for Reynaud

Cook), Attorney Charles Wayne (Counsel for Don

Hancock), and Attorney Paul Schmitt (Counsel for

Don Hancock). At this hearing, the parties agreed that

the Court could set a remote hearing date to allow for

oral argument on the various filings listed above. The

Court also presented new legal questions for the

parties to consider and set a briefing schedule to

permit voluntary filings addressing these questions.

The Court received the following filings after the hearing: Defendant Cook’s “Supplemental Memorandum to

23-110 Motion” filed on November 24, 2020, and

Defendant Hancock’s “Supplemental Brief In Support

of Motion to Vacate, Set Aside, or Correct Sentence

Pursuant to D.C. Code § 23-110, And For Other Relief”

filed on November 25, 2020.2 The government did not

1

Judge Bartnoff presided over the Defendants’ trial. The

undersigned judge now handles all of Judge Bartnoff’s criminal

matters.

2

The Court noted at the November 10, 2020 hearing that a

logical extension of Defendants’ argument, that the right to

confront a witness required that the fact finder be able to see the

entire face of that witness, could be that a blind juror would never

be able to serve on a jury in a criminal trial. As Defendants

concede, the Superior Court cannot categorically exclude blind

jurors. Galloway v. Superior Court of D.C., 816 F. Supp. 12

(D.D.C. 1993). The Court is not persuaded by Defendant Cook’s

argument that Galloway does not apply because “all twelve jurors

17a

file any supplement. The Court held oral argument on

all of the filings on December 16, 2020.3 The following

individuals were present for this hearing: AUSA Grace

Richards; Mr. Day4; and Defendant Hancock and his4

counsel, Mr. Wayne and Mr. Schmitt. For the reasons

detailed in this Order, based on the entire record and

were blinded to Ms. Everhart’s face” (Cook Supplemental Memorandum at 3) and the implicit contention that, in a case not

dependent on photographs or charts that cannot be accessed nonvisually, there could not be a jury comprised of 12 sightless jurors.

The Court does not, however, need to resolve the “blind juror”

question in order to rule in the matter before it.

3

At both the November 10, 2020 and December 16, 2020

hearings, all parties stated clearly that they were not requesting

the Court hold an evidentiary hearing before addressing the

issues raised in the 23-110 motions filed by Defendants Cook and

Hancock. Both Defendants and the government agreed that all

facts necessary for the Court to resolve the constitutional

questions raised in the motions were undisputed and therefore

there was no need for an evidentiary hearing. The Court agrees

that there are no undisputed facts and finds that Defendants

reasonably, as well as knowingly and voluntarily, waived their

right to request an evidentiary hearing. All parties agreed that:

(1) Alisha Everhart testified at trial while wearing a niqab; (2)

neither of Defendants’ trial counsel objected to her wearing a

niqab during her testimony; and (3) both counsel were permitted

to cross-examine Ms. Everhart.

4

Although USP Victorville, the Federal Correctional Institution

where Mr. Cook was being held, had set up an audio conferencing

room from which Mr. Cook could participate in the hearing, an

FCI official informed the Court and parties that Mr. Cook

declined to leave his cell to participate in the hearing. Defense

Counsel Day informed the Court that Mr. Cook had told him that

he did not want to attend the hearing and did not object to the

hearing taking place in Mr. Cook’s absence. The Court then

excused Mr. Cook’s presence.

18a

arguments from the parties, the Defendants’ motions

are DENIED.5

I. FACTUAL BACKGROUND6

On July 17, 2007, Alisha Everhart was driving in the

Deanwood neighborhood of the District of Columbia

when she saw her friend, Nacarto Gladden (the decedent), walking on the street. Ms. Everhart stopped her

vehicle, the two discussed the possibility of getting

high, and then Mr. Gladden entered Ms. Everhart’s

vehicle. Ms. Everhart called Defendant Don Hancock

to arrange to buy PCP from him. Ms. Everhart and

Mr. Gladden met Mr. Hancock for the purchase and

completed the transaction. After Mr. Hancock sold the

PCP, he asked for a ride to his car that was parked

nearby on Quarles Street. Ms. Everhart agreed and

the three then drove to the location of Mr. Hancock’s

car. Gov. Opp. at 1 – 2.

After arriving at that location, Mr. Hancock and Mr.

Gladden both exited Ms. Everhart’s vehicle and began

to fight. Ms. Everhart heard Mr. Gladden say “Don,

why you got a gun?” and then she fled for her safety.

Gov. Opp. at 3. As she fled, Ms. Everhart saw

Defendant Reynaud Cook enter the area carrying a

“black revolver with a pearl handle.” Gov. Opp. at 3.

5

As discussed in this Order, Defendant Cook and Defendant

Hancock argue the same claim. The Court refers to them

collectively as the “Defendants” and separates them only where

necessary to avoid confusion or highlight an argument made in

only one of the Defendants’ filings.

6

The Court relies on the government representation of facts

because the government briefing includes greater detail about the

underlying crime and the evidence presented at trial. The

Defendants are not challenging the facts of the case and, as stated

above, the parties agree on the most pertinent fact, that Ms.

Everhart wore a niqab while testifying.

19a

She asked Mr. Cook what was going on and he placed

his fingers over his mouth and said “shhh.” Gov. Opp.

at 3. Ms. Everhart continued to flee and heard three

gunshots as she left. Ms. Everhart spoke to the police

about the shooting first on July 17, 2007, and then

again a few weeks later. It was during this second

meeting that she informed the police that both Mr.

Hancock and Mr. Cook were responsible for the

murder of Mr. Gladden.

The Defendants were charged by indictment with

First-Degree Murder on February 29, 2014. Ms.

Everhart testified at the Defendants’ trial, and the

manner in which she testified is the basis for the 23110 motions before the Court. Ms. Everhart testified

while wearing a niqab, which is a religious garment

worn traditionally by Muslim women. The garment

covers the head and face of the person wearing it, but

does expose the individual’s eyes clearly.

Neither the Defendants nor the Court were unaware

that Ms. Everhart would testify while wearing a niqab.

The government stated in its opening statement that

Ms. Everhart was “actually going to be in a headdress

and face covering for religious reasons.” Gov. Opp. at

6. Neither Defendant objected to her wearing a niqab.7

7

For the purposes of the 23-110 motions, all parties agree that

neither Mr. Cook’s nor Mr. Hancock’s trial counsel objected to Ms.

Everhart wearing a niqab while testifying. Early in the 23-110

process, on October 21, 2019, Mr. Cook’s trial counsel, Daniel

Quillin, stated to Mr. Day in an e-mail that the “issue [regarding

a witness wearing a niqab] was raised during trial and rejected.”

Cook 23-110 Motion, Affidavit of Sean R. Day at 1. During a call

on November 12, 2019, Mr. Quillin stated that believed he

objected “because it’s a Sixth Amendment issue.” Cook 23-110

Motion, Affidavit of Sean R. Day at 1. Mr. Cook represents in his

23-110 motion that “[t]here is no indication in the record that

either trial counsel [for him or Mr. Hancock] objected.” Cook 23-

20a

The trial judge did not sua sponte rule that the

Defendants’ constitutional right to confront the witnesses against them would be violated if a witness

wore a niqab.

Ms. Everhart’s testimony was quite significant because

she was the “single eyewitness” who was present in

the alley where Mr. Gladden was killed and she may

have been high at the time of the killing. Hancock 23110 Motion at 1 – 3. Mr. Hancock “presented the

expert testimony of forensic psychiatrist Dr. Neil

Blumberg regarding the effects of PCP use” (Gov. Opp.

at 6) but could address only the general effects of the

drug and not how it affected Ms. Everhart. Police

recovered three 9-milimeter cartridge cases from the

scene and determined that two of these three were

fired from the same weapon. Gov. Opp. at 5. Three

bullets were recovered from Mr. Gladden’s body and

two of these were determined to be fired from the same

firearm. Gov. Opp. at 5. All three of these bullets were

“consistent with having been fired from a .38 Special

or .357 Magnum revolver.” Gov. Opp. at 5. A stocking

cap and cigarette bearing Mr. Hancock’s DNA were

found on the scene as well. Gov. Opp. at 5. Fingerprints

“taken from the vehicle and various objects” did not

match Mr. Cook and Mr. Cook’s “DNA did not match

any DNA taken either.” Cook 23-110 Motion at 14.

Although other civilian and MPD witnesses testified,

Ms. Everhart was the most important witness to the

government’s case.

110 Motion at 5. Mr. Hancock states in his motion that “[t]here

are no discernible objections in the record [from his trial counsel,

Steven Kiersh] as to Everhart testifying in a niqab.” Hancock 23110 Motion at 2.

21a

During its direct examination of Ms. Everhart, the

Court asked if she “normally [wore] a face covering

and a head covering in public?” Ms. Everhart replied,

“Yes, ma’am. Well, sometimes I do and, you know, this

is how I cover.” She stated that she had been covering

in this manner for the “past eight years,” since she

converted to Islam. Gov. Opp. at 7. Neither trial

counsel cross-examined Ms. Everhart about how often

she wore a niqab, why she decided to wear a niqab at

trial, why she sometimes did not wear a niqab, or other

issues regarding Ms. Everhart’s wearing of a niqab.

Defendants’ counsel for the 23-110 proceeding agree,

however, that trial counsel’s failure to ask such

questions is not the basis for Defendants’ 23-110

claim. Instead, the claim that trial counsel was ineffective is based solely on trial counsel’s failure to object

to Ms. Everhart testifying while wearing a niqab.

Perhaps to bolster their arguments that their clients’

confrontation rights were violated, Mr. Cook and Mr.

Hancock’s 23-110 counsel note that the jury requested

transcripts of Ms. Everhart’s testimony and the police

report from her interview on August 9, 2017, though

neither could be provided. Cook 23-110 Motion at 15;

Hancock 23-110 Motion at 5.

The jury returned a verdict acquitting Defendants

of First-Degree Murder but convicting them of the

lesser included offense of Second-Degree Murder

While Armed. On July 9, 2018, Judge Bartnoff sentenced each Defendant to 20 years of imprisonment.

Both Defendants have filed a direct appeal, which is

pending.

22a

II. ANALYSIS: THE CONFRONTATION CLAUSE

WAS NOT VIOLATED AND THEREFORE

THE DEFENDANTS DID NOT RECEIVE

INEFFECTIVE ASSISTANCE OF COUNSEL

Pursuant to D.C. Code § 23-110(a) a “prisoner in

custody under sentence of the Superior Court claiming

the right to be released upon the ground that. . .the

sentence was imposed in violation of the Constitution

of the United States . . . may move the court to vacate,

set aside, or correct the sentence.” Defendants raise

ineffective assistance of counsel claims under D.C.

Code § 23-110. Cosio v. United, 927 A.2d 1106, 1122

(D.C. 2007). An ineffective assistance of counsel claim

is governed by a two-prong test set out in Strickland

v. Washington, 466 U.S. 668 (1984).

First, “the defendant must show that counsel’s

performance was deficient. This requires showing that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed [to] the defendant by the Sixth Amendment.” Strickland, 466 U.S. at

687. To satisfy this prong, a defendant must demonstrate that “counsel’s representation fell below an

objective standard of reasonableness.” Strickland, 466

U.S. at 688; see also Watson v. United States, 536 A.2d

1056, 1065 (D.C. 1987) (“[T]he appropriate standard is

regarded as reasonably effective assistance under

prevailing professional norms. To put it another way,

the performance inquiry must be whether counsel’s

assistance was reasonable considering all the circumstances.”) (internal quotations and citations omitted).

Judicial scrutiny is highly deferential and there is a

“strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689.

23a

The second prong of the Strickland test requires a

defendant to “show that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.” Id. at 687. A defendant must satisfy both

prongs and the Court does not need to “address both

components of the inquiry if the defendant makes an

insufficient showing on one.” Id. at 668.

A trial counsel’s failure to file a “meritless motion

does not constitute ineffective assistance of counsel.”

Washington v. United States, 689 A.2d 568, 572-73

(D.C. 1997); see also Steward v. United States, 927

A.2d 1081, 1087 n.5 (D.C. 2007) (quoting Washington

and stating that “[c]ounsel cannot be found unconstitutionally deficient for failing to bring a meritless

motion.”) Indeed, counsel is under “no professional

obligation to file a motion that may have no merit.”

Zanders v. United States, 678 A.2d 556, 569 (D.C.

1996). A defendant cannot show “[p]rejudice...where

the motion, if filed, would not have been successful.”

Sanchez-Rengifo v. United States, 815 A.2d 351, 362

(D.C. 2002).

In this case, Defendants argue that their respective

trial counsel should have objected to Ms. Everhart

wearing her niqab while testifying because her testimony while wearing that religious garment violated

their Confrontation Clause rights.8 Defendants argue

that trial counsel’s failure to object constitutes deficient performance under Strickland and such deficient

8

Consistent with the Supreme Court’s stylization in Maryland

v. Craig, 497 U.S. 836 (1990), this Court capitalizes the phrase

“Confrontation Clause.” but not “confrontation right” or similar

terms.

24a

performance prejudiced the Defendants. The government contends that had trial counsel objected, such

objection would have been meritless because the

Defendants’ Confrontation Clause rights were not, in

fact, violated. Therefore, the government argues, if the

underlying objection would have been meritless, then

the trial counsel’s performance was not ineffective

under Strickland.

To resolve the Defendants’ motions, the Court must

determine if the Confrontation Clause rights of the

Defendants were violated. While there is no guidance

directly on point from the Supreme Court or District

of Columbia Court of Appeals on a situation where the

face of a witness, but not their eyes, is covered by

religious garb, there are analogous cases that guide

this Court’s analysis. In Maryland v. Craig, 497 U.S.

836 (1990), the Supreme Court held that it was not a

violation of the Confrontation Clause for a child-victim

of sexual assault to testify against the defendant in a

separate room using a one-way closed-circuit television loop. The Court outlined that certain “elements

of confrontation -- physical presence, oath, crossexamination, and observation of demeanor by the trier

of fact -- serves the purposes of the Confrontation

Clause by ensuring that evidence admitted against an

accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American

criminal proceedings.” Craig, 497 U.S. at 846. The

Court also clarified that “[a]lthough face-to-face confrontation forms the core of the values furthered by

the Confrontation Clause. . .we have nevertheless

recognized that it is not the sine qua non of the

confrontation right.” Craig, 497 U.S. at 847 (citations

and quotations omitted). The Craig Court further held

that where the physical presence element is not met,

“a defendant’s right to confront accusatory witnesses

25a

may be satisfied. . .only where denial of such confrontation is necessary to further an important public

policy and only where the reliability of the testimony

is otherwise assured.” Craig, 497 U.S. at 850.

No party disputes that Ms. Everhart testified under

oath and that she was subject to cross-examination.

Ms. Everhart was physically present in the same room

as the Defendants and the jury while she testified. The

core of the Defendants’ claim is that the niqab

obstructed observation of the witness by counsel and

the jury in order to assess her credibility and therefore

made it impossible for the Defendants to confront her.

Cook 23-110 Motion at 21 (“Because Ms. Everhart

testified with her face fully covered but for a slit for

her eyes, Mr. Cook, his attorney, and the jury were

denied a critical tool for assessing Ms. Everhart’s

credibility and determining whether a facial expression revealed doubt, forgetfulness, confusion, or

deceit.”); Hancock 23-110 Motion at 7 (“The niqab

prevented the jury from adequately assessing Everhart’s

testimony and denied Hancock’s constitutional right to

face-to-face confrontation.”). Defendants’ argument

rests squarely on the premise that Ms. Everhart’s

wearing of the niqab obstructed their view of her, and

the jury’s view of her, while she was testifying in such

a way that they no longer had a meaningful ability to

confront her.

The Court has reviewed, and is persuaded by,

multiple cases in which the reviewing court did not

find a Confrontation Clause violation when a witness

had some feature of her or his face covered and other

features exposed. In Commonwealth v. Smarr, 2019

Pa. Super. LEXIS 2593, 16 (Pa. July 3, 2019) a witness, consistent with her Islamic beliefs, testified

while wearing a scarf that covered her mouth and nose

26a

but left her eyes visible. Applying Craig, the found

that “[n]o precedent has established that a witness’s

clothing or accessories renders a physical, in-court

confrontation other than face-to-face, particularly

where the clothing does not obstruct the witness’s

eyes, and we decline to do so under the facts of this

case.” Id. For the witness in Smarr and Ms. Everhart

alike, the jury and defendant could view “her posture,

her gestures, and her body language; hear her tone of

voice, her cadence, and her hesitation; and observe any

nervousness, frustration, or hostility.” Id. at 19.

The importance of eyesight to the Confrontation

Clause has never been singled out as a necessary

element, but it is certainly an important consideration. See Coy v. Iowa, 487 U.S. 1012, 1016-19 (1988)

(“We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face

meeting with witnesses appearing before the trier of

fact. . . .[t]he phrase still persists, [l]ook me in the eye

and say that.”) (internal quotations omitted). Several

courts, however, have permitted testimony where the

witness’ eyes may not be fully visible. In Morales v.

Artuz, 281 F.3d 55 (2nd Cir. 2002), a witness refused

to take her sunglasses off while testifying and the

court permitted her to testify while wearing them. The

court found that the sunglasses:

[O]bscured view of the witness’s eyes, however,

[it] resulted in only a minimal impairment of

the jurors’ opportunity to assess her credibility. Even if we accept the idea, grounded

perhaps more on tradition than on empirical

data, that demeanor is a useful basis for

assessing credibility, the jurors had an entirely

unimpaired opportunity to assess the delivery

of [the witness’] testimony, notice any evident

27a

nervousness, and observe her body language.

Most important, they had a full opportunity

to combine these fully observable aspects of

demeanor with their consideration of the

substance of her testimony, assessing her

opportunity to observe, the consistency of her

account, any hostile motive, and all the other

traditional bases for evaluating testimony.

Morales, 281 F.3d at 61-62. Similar to the witness in

Morales, Ms. Everhart’s delivery of her testimony,

including if she sounded nervous or anxious, was still

observable to the Defendants and the jury. Although

the niqab covered Ms. Everhart’s mouth and nose, her

overall body language, such as whether she fidgeted

her hands, changed her body posture, turned her head,

or looked up or down, were still visible.

Sunglasses were also at issue in Commonwealth v.

Lynch, 439 Mass. 532 (Mass. 2003). In Lynch, there

was a factual dispute whether a witness wore

sunglasses while testifying and, if so, how dark the

lenses were. Notwithstanding this dispute, the Court

found that “had [the witness] worn dark glasses of

some type, there is no basis on which to conclude that

it created a substantial likelihood of a miscarriage of

justice. ‘Face to face’ confrontation does not mean ‘eye

to eye’. . .and wearing dark glasses does not prevent

exposure of a witness’s face.” Lynch, 439 Mass. at 542

(internal citations omitted). A similar outcome was

reached in People v. Miller, 2014 Cal. App. LEXIS 937,

79 (Cal. Ct. of App. Feb. 7, 2014), where the trial court

permitted a witness to testify in sunglasses and the

reviewing appeals court found that there was no

violation because the witness “testified in person, from

inside the courtroom and in full view of the defendants

except for the fact his eyes were obscured.” Here, Ms.

28a

Everhart’s eyes were visible to the Defendants and the

jury, which relative to Morales, Lynch, and Miller,

fostered a more meaningful “face to face” connection

than in those cases where the reviewing court did not

find that the Confrontation Clause was violated.

Unlike in Coy, Ms. Everhart was not blocked by a

screen or partition; she was present in open court, with

her eyes and upper body fully visible to the Defendants

and the jury. Coy, 487 U.S. at 1022.

A niqab is undisputedly a religious garment that

covers most of the face of the person wearing it, but

analogous cases involving disguises, rather than religious articles that cover the face, also fail to support

the Defendants’ position that items that partially

obscure the face of a witness violate the Confrontation

Clause. In Smith v. Graham, 2012 U.S. Dist. LEXIS

89468, *1, *24 (S.D.N.Y. 2012), a prosecution witness

was permitted to “wear a fake goatee, moustache, and

wig while testifying. His eyes, however, were not

covered.” The reviewing court held that “[g]iven that

Supreme Court precedent on this point both tempers

the right to unimpeded visual confrontation and

puts significant emphasis on the defendant and jury

being able to view the eyes of the testifying witness

and assess the witness’s demeanor, there is no basis

to conclude that the state courts’ decision was contrary

to, or involved an unreasonable application of clearly

established Federal law, as determined by the

Supreme Court of the United States.” Id. at *26-*27

(internal quotations omitted). As with the witness in

Smith, Ms. Everhart’s eyes were not covered and her

demeanor was otherwise observable.

The cases cited above establish that a witness who

testifies with some facial features obstructed, who

otherwise is in the same room as the defendant and

29a

jury and is in their full view, and whose eyes are

visible and demeanor may be observed, does not

violate a defendant’s Confrontation Clause rights.

Defendants’ attempts to distinguish or rebut the cases

discussed above are not persuasive. First, Defendants

argue that Smarr is a “non-precedential opinion.”

Cook Reply at 1. Defendants are correct that, with the

exception of the U.S. Supreme Court’s opinion in Craig

and Coy, and opinions from the District of Columbia

Court of Appeals, none of the cases cited by Defendants

or the government are controlling over the Superior

Court of the District of Columbia. This Court looks to

the cases for the rationale they provide, with which it

agrees, but does not consider any of them to establish

binding or controlling precedent.

The Court finds the Smarr opinion to provide a

helpful analytical application of Craig to a situation

where a witness is still physically present in the same

room as the defendant but is wearing religious garb.

It is inconsequential to this Court that the Smarr

opinion is non-precedential, because it was never a

controlling opinion in the District of Columbia. Next,

Defendants highlight that the Miller Court stated that

the witness who wore the sunglasses was “merely a

bystander witness.” People v. Miller, 2014 Cal. App.

LEXIS 937, 79 (C.A. 2014). The Miller Court made

that observation assuming arguendo that there had

been a violation, however, and noted that the witness’

minimal role meant that any such error would be

“harmless.” Id. at 82 (“Moreover, even had there been

a confrontation clause violation, it would have been

harmless. Unlike the situations in Coy, Craig, and

Murphy, where the witnesses in question were the

alleged victims, [the witness in Miller] was merely a

bystander witness.”) This does not change the overall

holding of Miller that a witness wearing sunglasses

30a

while testifying does not violate the Confrontation

Clause.

Next, Defendants attempt to undermine the holding

of Graham by comparing the fact that the witness’

disguise of a wig and facial hair “merely put the

witness on par with any bearded man with a head of

hair; it did not conceal facial expressions.” Cook Reply

at 2. This may be true in a general sense, but several

other similarities exist between the witness in Graham

and Ms. Everhart: both had their eyes visible to the

Defendant; both were physically present in the same

room as the Defendant; and both had other indicators

of their demeanor on display, including the tone of

their voice and use of pauses while testifying. In

addition, the term “any bearded man” ignores the wide

variety of beards a man could have. It is not difficult

to envision a witness with a long, bushy beard and

mustache that obscures his mouth, cheeks, chin, and

ears. Although the nose of the witness would be at

least partially visible, while the nose of a witness

wearing a niqab would not, the nose is not generally

considered a facial feature on which credibility determinations are made.9 Defendants have failed to cite

any case in which a court has found that it would

violate the Confrontation Clause if a witness did not

first shave off or shorten his bushy beard.

Defendants attempt to undercut the persuasive

value of Lynch by stating that the question if the

witness worse sunglasses was factually in dispute.

Cook Reply at 3; Hancock Reply at 3. It is true that the

9

The Court is not considering the fictional character Pinocchio,

whose nose grew longer each time he told a lie. It is reasonable to

assume, however, that significant immediate nose growth would

be visible even if a witness were wearing a niqab.

31a

Court in Lynch found that the defendant “has failed to

establish that [the witness] wore sunglasses, dark

enough to conceal his eyes, during his testimony” but

the Court continued to state that “[e]ven if [the

witness] had worn dark glasses of some type, there

is no basis on which to conclude that it created a

substantial likelihood of a miscarriage of justice.”

Lynch, 439 Mass. at 542. The broader point that

Defendants overlook is that the Lynch Court was not

concerned by the dispute over whether the witness had

worn sunglasses because the Court concluded that,

even if he had worn sunglasses, doing so would not

have presented a Confrontation Clause issue.

Finally, Defendants attempt to distinguish Morales

as a case where there was substantially more evidence

of the defendant’s guilt than there is in the case before

this Court. Cook Reply at 3. Even if the prosecution in

the Morales case presented more evidence than the

prosecutor presented against Defendants here, the

Court is persuaded that the rational of Morales does

not hinge on that fact alone. Defendant Cook ignores

the detailed analysis in Morales:

The obscured view of the witness’s eyes,

however, resulted in only a minimal impairment of the jurors’ opportunity to assess

her credibility. Even if we accept the idea,

grounded perhaps more on tradition than on

empirical data, that demeanor is a useful

basis for assessing credibility, the jurors had

an entirely unimpaired opportunity to assess

the delivery of Sanchez’s testimony, notice

any evident nervousness, and observe her

body language. Most important, they had a

full opportunity to combine these fully observable aspects of demeanor with their con-

32a

sideration of the substance of her testimony,

assessing her opportunity to observe, the

consistency of her account, any hostile

motive, and all the other traditional bases for

evaluating testimony. All that was lacking

was the jury’s ability to discern whatever

might have been indicated by the movement

of her eyes.

Morales, 281 F.3d at 61-62. In sum, the Court is

persuaded by the analysis in many state and federal

courts that a witness, with some part of their face

covered, who is otherwise present in the same room as

the defendant and the jury, may testify without

violating the Confrontation Clause. The Defendants’

attempts to undercut or distinguish the reasoning in

these cases is not persuasive.

Defendants raise three additional cases which the

Court addresses in turn.10 First, Defendants cite to

United States v. Alimehmeti, 284 F. Supp. 3d 477

(S.D.N.Y. 2018) for the proposition that a trial court

would not allow undercover officers to testify in niqabs

to protect their identity because it compromises the

defendant’s right to confront them. The Alimehmeti

court did not categorically hold, however, that wearing

a niqab always leads to a Confrontation Clause violation, but rather was weighing that possibility against

other options to protect the undercover officers’ identities:

The partial closure [of the courtroom] on the

terms outlined above is superior to the alternatives that either been proposed or identified.

10

These three cases are, for the reasons raised by Defendants,

not binding on the Court. As with all cases that are not binding

or have no precedential effect, this Court considers the rationale

of the opinion.

33a

One alternative would be to have the UCs

testify in disguise (such as using a niqab to

cover the UC’s head or light makeup to

conceal a UC’s features). One reporter who

commented at the public hearing suggested

testimony in disguise, although this option

was opposed by both the Government and the

defense. For several reasons, the Court rejects

this approach, whatever form the UC’s disguise

might take. Trial testimony by disguised

witnesses might compromise Alimehmeti’s

ability directly to confront his most central

accusers at trial insofar as any disguise

impedes Alimehmeti’s (or the jury’s) ability to

assess the witnesses’ comportment on the

stand. This arrangement is in tension with

the Constitution’s guarantee to a criminal

defendant of the right to be confronted with

the witnesses against him. . .and a face-toface meeting with witnesses appearing before

the trier of fact.

Alimehmeti, 284 F. Supp. at 488-89 (internal quotations and citations omitted). The Alimehmeti Court

held it would partially close the courtroom in lieu of

disguising any of the witnesses and, therefore, did not

proceed with applying Craig. This Court is not persuaded that the Alimehmeti Court’s general remarks

about the disguise of a witness undercuts the Court’s

conclusion that application of the Craig analysis establishes it does not violate a defendant’s Confrontation

Clause rights for a witness to testify while wearing a

niqab.

Defendants also direct the Court’s attention to

People v. Ketchens, 2019 Cal. App. LEXIS 3920 (Cal.

Ct. of App. June 7, 2019), for the proposition that a

34a

witness who wears a ski mask or disguise that conceals almost all of their face violates the Confrontation

Clause. Hancock Reply at 3, Footnote 1. In Ketchens,

however, the witness wore a ski mask that “cover[ed]

her entire face, but for her right eye, which was visible

slightly, a portion of her nose, and a little bit of her left

eye.” People v. Ketchens, 2019 Cal. App. LEXIS 3920,

24 (internal quotations omitted). Here, both of Ms.

Everhart’s eyes were visible. As stated above, eye

contact has never been identified as the core requirement of the Confrontation Clause, but eye visibility is

important. Coy, 487 U.S. at 1022. Additionally, the

Ketchens Court did not formally address whether this

presented a Confrontation Clause issue: “We need not,

however, decide whether the scarf triggered the

defendants’ confrontation clause rights, because even

if it did, any error was harmless.” Id.

Finally, Defendants cite to Romero v. State, 173

S.W. 3d 502 (Tex. Ct. of Crim. App. 2005), as a

comparable case to this matter. Hancock Reply at 3

(“The Texas case [of Romero] presents circumstances

similar to Everhart’s testimony in this case.”); Cook

23-110 Motion at 19. In Romero, a witness who feared

for his safety if he were to testify against the defendant

testified while “wearing dark sunglasses, a baseball

cap pulled down over his forehead, and a long-sleeved

jacket with its collar turned up and fastened so as to

obscure [his] mouth, jaw, and the lower half of his

nose. The net effect and apparent purpose of [his]

‘disguise’ was to hide almost all of his face from view.”

Romero, 173 S.W. 3d at 503. The Court found that the

disguise violated the defendant’s right to confront the

witness and stated that “the trier of fact was deprived

of the ability to observe [the witness’] eyes and his

facial expressions.” Romero, 173 S.W. 3d at 505. While

the witness in Romero and Ms. Everhart both had

35a

parts of their faces covered, Ms. Everhart’s eyes were

completely visible and the eyes of the witness in

Romero were not. Romero represents a combination of

the points of contention in cases such as Smarr,

Morales, and Smith, but the violation in Romero

included a more significant denial of a face-to-face,

eye-contact-driven experience than here or in any

other case reviewed by this Court.

Even assuming arguendo that Ms. Everhart’s wearing of the niqab while testifying frustrated the

Defendants’ right to a “face-to-face” confrontation, and

this case is more analogous to Romero, it is still

possible for the confrontation right to be satisfied

“where denial of such confrontation is necessary to

further an important public policy and only where the

reliability of the testimony is otherwise assured.”

Maryland v. Craig, 497 U.S. 836, 850. Here, the

Court finds that even if there was a denial of the

Confrontation Clause rights, allowing Ms. Everhart to

testify in a niqab furthered the important public policy

of protecting Ms. Everhart’s rights under the Free

Exercise Clause of the First Amendment of the U.S.

Constitution.

The Court does not need to resolve Defendants’

contention that Ms. Everhart practiced her faith only

“occasionally” or that she “treated the niqab as just

one outfit she sometimes wore.” Hancock Reply at 5;

Cook 23-110 Motion at 18. It is “not within the judicial

ken to question the centrality of particular beliefs

or practices to a faith, or the validity of particular

litigants’ interpretations of those creeds.” Hernandez

v. Comm’r, 490 U.S. 680, 699 (1989); see also Thomas

v. Review Bd. of Ind. Employment Sec. Div., 450 U.S.

707, 716 (1981) (“Courts are not arbiters of scriptural

interpretation.”). Absent clear guidance from the

36a

Supreme Court or the District of Columbia Court of

Appeals to the contrary, the Court finds that respecting Ms. Everhart’s Free Exercise Clause rights by

permitting her to testify while wearing a niqab

advances an important public policy. Still, counsel for

both Defendants were free to cross-examine Ms.

Everhart about her religious beliefs or why she chose

to wear a niqab during her testimony.

Defendants cite to cases in which courts have

determined that witnesses wearing masks to protect

themselves against the spread of COVID-19 constitutes an important public policy. See United States v.

Crittenden, 2020 WL 4917733 at *6 (M.D. Ga. Aug 21,

2020), United States v. Clemons, 2020 WL 6485087, at

*2-3 (D. Md. Nov. 4, 2020), and United States v. Jones,

2020 WL 6081501, at *2 (D. Ariz. Oct. 15, 2020).

Defendants appear to be suggesting that wearing a

mask in response to COVID-19 is a legitimate public

policy goal, but that permitting the free exercise of

religion is not a legitimate public policy goal. Cook

Supplemental Memorandum at 6 (“Additionally, this

case lacks what is present in the pandemic cases:

the limitation [on the right to confront] must be

necessary to serve an important public policy. Here,

the witness wore the niqab as the day’s outfit.”);

Hancock Supplemental Memorandum at 2 (“[N]o such

public policy is implicated here by Ms. Everhart’s

casual wearing of a niqab, must less an exigent public

policy like the need to protect against a lethal global

pandemic.”). Defendants disregard Ms. Everhart’s

religious beliefs as “casual” and this Court cannot

accept that description. The Court does not need to

engage in a meaningless comparative analysis if

protecting against the spread of COVID-19 is any

more or less important than respecting Ms. Everhart’s

religious freedoms. The Court finds under Craig, if

37a

there was an encroachment on the Defendants’

confrontation rights, safeguarding Ms. Everhart’s

religious freedom serves as an important public policy

under the first prong of the test.

The Court also finds that the reliability of Ms.

Everhart’s testimony was “otherwise assured” in

satisfaction of the second part of the Craig analysis.

Reliability was measured by the Craig Court to

include the presence of “other elements of confrontation -- oath, cross-examination, and observation of the

witness’ demeanor – [which] adequately ensures that

the testimony is both reliable and subject to rigorous

adversarial testing.” Craig, 497 U.S. at 851. Here,

each of those elements are met: (1) Ms. Everhart

testified under oath; (2) Ms. Everhart was subject to

cross-examination; and (3) Ms. Everhart’s demeanor

was observable, to include her tone, patterns of speech,

and eye movements. As with the witness in Smarr, the

Defendants and the jury in this case could see Ms.

Everhart’s eyes and view her “posture, her gestures,

and her body language; hear her tone of voice, her

cadence, and her hesitation; and observe any nervousness, frustration, or hostility” all while Ms. Everhart

was under oath and subject to cross-examination.

Commonwealth v. Smarr, 2019 Pa. Super. LEXIS

2593, 19 (Pa. July 3, 2019). Critically, the jury in this

case requested transcripts of her testimony and

records from her police interview. The Court views

these requests to signal that the jury was more

concerned with the content of Ms. Everhart’s testimony and not necessarily what she wore to court that

day. The Court finds, therefore, that the reliability of

Ms. Everhart’s testimony was assured.

In summary, the Court finds that the Defendants’

Confrontation Clause rights were not violated because

38a

Ms. Everhart’s testimony meets all of the elements as

detailed in Craig. Assuming arguendo that the

“face-to-face” meeting was frustrated by the niqab,

permitting Ms. Everhart to testify while wearing the

niqab was necessary to further an important public

policy and the testimony itself was otherwise reliably

assured. Therefore, this Court concludes that had

either of the Defendants’ trial counsel objected, the

objection should have been overruled as meritless.

As stated above, “[a] trial counsel’s failure to file a

“meritless motion does not constitute ineffective assistance of counsel.” Washington v. United States, 689

A.2d 568, 572-73 (D.C. 1997). The Court finds that the

Defendants’ trial counsel were not ineffective for

failing to raise a meritless objection and therefore

their request for relief should be denied. Defendants

have not demonstrated that their respective “counsel’s

representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688.

The Court now turns to a related issue regarding

unsettled law. To satisfy the first prong of the

Strickland test, Defendants must show that their

“counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at

688. This Court cannot find that either counsel’s

actions fell below the objection standard of reasonableness when counsel did not make an objection

based on an unsettled area of the law. The trial

counsel who represented Defendants here were in a

similar situation to that of the trial counsel in Otts v.

United States, 952 A.2d 156 (D.C. 2008). There, the

defendant claimed that his trial counsel was ineffective for not objecting to the admission of chemist’s

reports without the author of the reports present to

testify. The Otts court held that:

39a

While appellant’s trial counsel could have

attempted to construe DEA-7 chemist reports

as testimonial and therefore coming within

the ambit of Crawford, we cannot say that

trial counsel’s failure to anticipate our decision

in Thomas, which came two years after

appellant’s 2004 jury trial, fell below ‘prevailing professional norms,’ or was enough to

‘overcome the presumption that counsel

rendered reasonable professional assistance.’

Kimmelman, supra, 477 U.S. at 386 (citing

Strickland, supra, 466 U.S. at 689); accord

State v. Gross, 134 Md. App. 528, 760 A.2d

725, 757 (Md. Ct. Spec. App. 2000) (holding

that ‘the failure to anticipate a possible

change in the local law of evidence or to push

for such a change is not an instance of

counsel’s representation [falling] below an

objective standard of reasonableness.’)

Otts, 952 A.2d at 165 (D.C. 2008). As stated above, a

trial counsel’s failure to file a “meritless motion does

not constitute ineffective assistance of counsel.”

Washington v. United States, 689 A.2d 568, 572-73

(D.C. 1997); see also Steward v. United States, 927

A.2d 1081, 1087 n.5 (D.C. 2007) (quoting Washington

and stating that “[c]ounsel cannot be found unconstitutionally deficient for failing to bring a meritless

motion.”). The Court finds these decisions in line with

the decisions of other state and federal courts that

have held, in more specific terms, that attorneys do

not act unreasonably for Strickland purposes where

they do not guess at unsettled questions of law. See,

e.g., New v. United States, 652 F.3d 949, 952 (8th Cir.

2011) (“[F]ailure to raise arguments that require the

resolution of unsettled legal questions generally does

not render a lawyer’s services ‘outside the wide range

40a

of professionally competent assistance’ sufficient to

satisfy the Sixth Amendment.”); Kornahrens v. Evatt,

66 F.3d 1350, 1360 (4th Cir. 1995) (“[T]he case law is

clear that an attorney’s assistance is not rendered

ineffective because he failed to anticipate a new rule of

law.”); Walker v. Jones, 10 F.3d 1569, 1573 (11th Cir.

1994) (“[B]ecause Alabama courts had rejected similar

claims [that the defendant sought to raise] and the

Supreme Court had not yet decided Cage [which

settled the issue the defendant sought to raise], trial

counsel had no basis for objecting to the trial court’s

instruction on reasonable doubt. Trial counsel’s failure

to object to the instruction was, therefore, reasonable.”); Bloomer v. United States, 162 F.3d 187, 193

(2nd Cir. 1998) (“Although an attorney is not usually

faulted for lacking the foresight to realize that a

higher court will subsequently identify a defect in

jury instructions similar to those used at his client’s

trial. . .an attorney nonetheless may be held responsible for failing to make such an objection when

precedent supported a ‘reasonable probability’ that a

higher court would rule in defendant’s favor.”); State

v. Breitzman, 2017 WI 100, 49 (Wis. 2017) (“At the

outset, we note that, for trial counsel’s performance to

have been deficient, Breitzman would need to demonstrate that counsel failed to raise an issue of settled

law.”); State v. Reigelsperger, 2017 UT App 101, 92

(Utah 2017) (“The law does not require counsel to seek

resolution of every unsettled legal question that might

bear on the proceeding. . .or to make every novel

argument new counsel may later derive and assert for

the first time on appeal.”)

41a

The Court is guided by the simple pronouncement in

Strickland that:

[T]he Sixth Amendment refers simply to

‘counsel,’ not specifying particular requirements of effective assistance. It relies instead

on the legal profession’s maintenance of

standards sufficient to justify the law’s

presumption that counsel will fulfill the role

in the adversary process that the Amendment

envisions. . .[t]he proper measure of attorney

performance remains simply reasonableness

under prevailing professional norms.

Strickland, 466 U.S. at 688 (1984) (internal citations

omitted); see also Engle v. Isaac, 456 U.S. 107, 134

(1982) (“We have long recognized, however, that the

Constitution guarantees criminal defendants only a

fair trial and a competent attorney. It does not insure

that defense counsel will recognize and raise every

conceivable constitutional claim.”).

In the case before the Court, neither of Defendants’

counsel chose to raise the novel claim that a witness

who testifies in a criminal trial while wearing a niqab

violates a defendant’s constitutional right to confront

the witnesses against him. Indeed, Defendants concede that there is no District of Columbia case, nor, to

counsel’s knowledge, a case in any jurisdiction that

squarely addresses this issue. This Court cannot find

that either trial counsel’s failure to raise a constitutional issue that has not previously been addressed in

the context of religious clothing means that they

provided deficient performance that “fell below an

objective standard of reasonableness.” Strickland, 466

U.S. at 688. Indeed, the competing citations to various

state and federal cases establish that the issue and

42a

resolution which Defendants claim is so obvious is in

fact a matter of considerable dispute.

Assuming arguendo, however, that defense counsel

was ineffective for failing to object to the witness

testifying while wearing a niqab, the Court would then

have to reach the second prong of Strickland. The

second prong, often referred to as the prejudice prong,

requires the defendant to “show that the deficient

performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. The

Court cannot resolve that issue without resorting to

pure speculation. There is no basis for the Court to

find that if the witness had not worn a niqab some

movement of her lips, cheeks, or other areas of her face

that were covered by the niqab would have led the jury

not to credit her testimony. Thus, even if both counsel

failed to meet the professional standards established

by the first prong of Strickland, Defendants cannot

meet the second prong of Strickland. The Court,

therefore, will not grant a new trial on the basis of

ineffective assistance of counsel.

It is important to recognize that on direct appeal in

this case the District of Columbia Court of Appeals will

resolve the issue of whether a witness who testifies in

a criminal trial while wearing a niqab violates a

defendant’s constitutional right to confront the witnesses against him. If the District of Columbia Court

of Appeals rules that testimony by a witness wearing

a niqab violates a defendant’s constitutional confrontation rights, then the Defendants will be granted a

43a

new trial without having to establish that they were

prejudiced.11

CONCLUSION

The Court finds that it was not a violation of the

Defendants’ Confrontation Clause rights to have Ms.

Everhart testify while wearing a niqab. Assuming that

the “face-to-face” element of the Confrontation Clause

was frustrated, Ms. Everhart’s ability to testify while

wearing a niqab furthered an important public policy

and the reliability of her testimony was otherwise

reassured as understood in the Craig opinion. Because

the Court has made this finding, it finds that the

Defendants’ counsels were not ineffective for failing to

object because such an objection would have been

meritless.

WHEREFORE, for the forgoing reasons, it is this

29th day of December, 2020 hereby

ORDERED that Reynaud Cook’s “Motion to Vacate,

Set Aside, Or Correct Sentence Pursuant to D.C. Code

§ 23-110, And For Other Relief” is DENIED; and it is

further

11

Although the Court applied a Strickland analysis, as is

appropriate when ineffective assistance of counsel is alleged, it is

arguable that this case is not best considered under Strickland.

This Court found that the Defendants’ Confrontation Clause

rights were not violated, and therefore that the trial attorneys

provided objectively reasonable assistance of counsel. Even if the

District of Columbia Court of Appeals were to find that there is a

constitutional right not to have a witness testify against a

defendant while wearing a niqab, that right was not clear under

settled law at the time of the trial. The newly recognized right is

what would trigger the new trial, and not ineffective assistance

of counsel.

44a

ORDERED that Don Hancock’s “Motion to Vacate,

Set Aside, or Correct Sentence Pursuant to D.C. Code

§ 23-110, And For Other Relief” is DENIED.

SO ORDERED.

/s/ Craig Iscoe

Judge

(Signed in Chambers)

Copies To:

Margaret Chriss (eServe)

Grace Richards (eServe)

United States Attorney’s Office

Sean R. Day (eServe)

Counsel for Defendant Cook

Paul D. Schmitt (eServe)

Charles Wayne (eServe)

Counsel for Defendant Hancock

Date: December 29, 2020

45a

APPENDIX C

DISTRICT OF COLUMBIA

COURT OF APPEALS

[Filed February 6, 2023]

————

2013-CF1-009030

Nos. 18-CF-0738 & 21-CO-0004

————

REYNAUD COOK,

Appellant,

————

2013-CF1-015041

Nos. 18-CF-0758 & 21-CO-0046

————

DON FITZGERALD HANCOCK,

Appellant,

v.

UNITED STATES,

Appellee.

————

ORDER

BEFORE:

Blackburne-Rigsby, Chief Judge, and

Beckwith,* Easterly,* McLeese, Deahl,

Howard, AliKhan,*

and

Shanker,

Associate Judges.

On consideration of appellants’ petitions for

rehearing or rehearing en banc, and it appearing that

no judge of this court has called for a vote on the

petitions for rehearing en banc, it is

ORDERED by the merits division* that appellants’

petitions for rehearing are denied. It is

46a

FURTHER ORDERED that appellants’ petitions for

rehearing en banc are denied.

PER CURIAM

Nos. 18-CF-0738, 18-CF-0758, 21-CO-0004, &

21-CO-0046

Copies emailed to:

Honorable Judith Bartnoff

Director, Criminal Division

Copies e-served to:

Sean R. Day, Esquire

Paul D. Schmitt, Esquire

Chrisellen R. Kolb, Esquire

Assistant United States Attorney

pii

47a

APPENDIX D

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

————

Case No. 2013 CFI 015041

PDID No. 522100

DCDC No. 303334

————

UNITED STATES OF AMERICA

vs.

DON FITZGERALD HANCOCK

DOB: 02/18/1984

————

JUDGMENT IN A CRIMINAL CASE

(Incarceration)

THE DEFENDANT HAVING BEEN FOUND GUILTY

ON THE FOLLOWING COUNT(S} AS INDICATED

BELOW:

Count

2

Court Finding___ Charge_______________

Jury Trial Guilty

Murder II While Armed

SENTENCE OF THE COURT

Count 2 Murder II While Armed Sentenced to 20

year(s) incarceration with credit for time served,

5 year(s) supervised release., $100.00 VVCA, VVCA

Due Date 07/09/2038

The defendant is hereby committed to the custody of

the Attorney General to be incarcerated for a total

term of 20 YEARS. MANDATORY MINIMUM term of

5 YEARS applies.

48a

Upon release from incarceration, the Defendant shall

be on supervised release for a term of: 5 YEARS

The Court makes the following recommendations to

the Bureau of Prisons/Department of Corrections:

Court recommends placement at a facility to

accommodate mental health treatment needs and

vocational services.

Total costs in the aggregate amount of $ 100.00 have

been assessed under the Victims of Violent Crime

Compensation Act of 1996, and  have  have not

been paid.  Appeal rights given  Gun Offender

Registry Order Issued

 Advised of right to file a Motion to Suspend Child

Support Order

 Sex Offender Registration Notice Given

 Domestic violence notice given prohibiting

possession/purchase of firearm or ammunition

 Restitution is part of the sentence and

judgment pursuant to D.C. Code § 16-711.

 Voluntary Surrender

7/9/2018

Date

/s/ Judith Bartnoff

JUDITH BARTNOFF

Judge

Certification by Clerk pursuant to Criminal Rule 32(d)

7/9/2018

Date

/s/ Michelle Henson

Michelle Henson

Deputy Clerk

49a

Received by DUSM: [Illegible]

Printed Name

Badge: 31109

Signature: [Illegible]

Date: 7/9/18

Time: 1300

50a

APPENDIX E

[1] SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

CRIMINAL DIVISION

————

Criminal Action No.:

2013-CF1-9030

2013-CF1 15041

————

UNITED STATES OF AMERICA

v.

REYNAUD COOK,

DON HANCOCK,

Defendants.

————

Washington, D.C.

Monday, July 10, 2017

The above-entitled action came on for a Jury Trial

before the HONORABLE JUDITH BARTNOFF,

Associate Judge, and a jury impaneled and sworn, in

Courtroom Number 203, commencing at 9:54 a.m.

* * *

[42] GOVERNMENT’S OPENING STATEMENT

* * *

[50] * * *

So, how are we going to prove this? We are going to

prove it through several witnesses. The first witness is

going to be someone by the name of Alisha Everhart,

Twin. Alisha grew up in the Deanwood neighborhood,

51a

which is where this all takes place. As I told you, she

knew the defendants from a very early age and she

had stayed friends with them throughout the course,

over the years.

* * *

[51] * * *

You are going to hear, ladies and gentlemen, that, in

fact, when she first spoke with the police, that is the

very morning of Nick’s murder, she didn’t tell the

police the truth. She was protecting her friends, Don

and Rey. She said that it was somebody else and she

gave a description of another person who killed Nick.

But you are also going to hear that as time goes on,

that loyalty and those feelings that she had, friendship

for Nick started to got to her. And by the time she

testifies in the grand jury, about a month later, she

tells the police what happened. She identifies Rey and

says that’s the guy who was there that night. She

doesn’t identify Don, although she tells the police his

full name and she gives a

* * *

[52] * * *

In two-thousand – one thing about the grand jury of

2007, ladies and gentlemen, is that she told them that

she was high. She said that she had – Nick had already

smoked part of that dipper. What you are going to hear

today, ladies and gentlemen in the courtroom, is that

she was not high at that time. She will tell you that

she said that she was high because she was scared. It's

a tough situation to be in when you are 23 years old.

2012, 2011 or so, Alisha did have a problem with PCP.

You are going to hear about that and she will discuss

that with you a little bit. But you are also going to hear

52a

that PCP never caused her to hallucinate, never

caused her to hear things that weren’t really there or

see things that were not really there. She's going to tell

you that PCP made her pretty mellow.

In 2011 or so, Ms. Everhart pulled herself together.

She got her life together. She got sober. She had a child.

She became religious. She converted to Islam. She

became very active in the Islamic community. And, in

fact, ladies and gentlemen, she is such a devout

individual that you will see, when she testifies here

today, she’s actually going to be in a [53] headdress and

face covering for religious reasons.

* * *

53a

APPENDIX F

[1] SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

CRIMINAL DIVISION

————

Criminal Action No.:

2013-CF1-9030

2013-CF1 15041

————

UNITED STATES OF AMERICA

v.

REYNAUD COOK,

DON HANCOCK,

Defendants.

————

Washington, D.C.

Tuesday, July 11, 2017

The above-entitled action came on for a Jury Trial

before the HONORABLE JUDITH BARTNOFF,

Associate Judge, and a jury impaneled and sworn, in

Courtroom Number 203, commencing at 1:08 p.m.

* * *

[30] * * *

Q Could you please state and spell your name for

the jurors and for the court reporter.

A My name is Alisha Everhart. A-L-I-S-H-A, E-VE-R-H-A-R-T.

Q And Ms. Everhart, do you go by any other

names?

A

54a

My muslim name is Khadeejah.

Q

Can you spell that?

A

K-H-A-D-E-E-J-A-H.

* * *

[33] * * *

Q

Do you currently work?

A Right now I’m unemployed, but I am a

musician.

Q You are a musician. What instrument do you

play?

A I play guitar, piano, but I’m an upcoming singer

and rapper.

Q

So, do you primarily focus on vocals?

A

Yes, ma’am.

Q Now, you said that you are not working right

now. Are you involved in any organizations?

A Yes, ma’am. Actually, since I have been converted back over to Islam, I do a lot of community and

volunteer work in the community.

Q And you said you converted to Islam. When did

you do that?

A

August of 2009.

Q Let me ask you. You said that you are involved

with in community. Is there anything in particular you

do through your mosque?

A Yes, ma’am. We do a lot of feeding the homeless.

We do a lot of youth work or what have you work with

the elderlies, work with the homeless. Just a lot of

giving back to the community.

55a

[34] Q Now, Ms. Everhart, you are testifying today

wearing a head covering as well as a face covering?

A

Yes, ma’am.

Q And do you normally wear a face covering and a

head covering in public?

A Yes, ma’am. Well, sometimes I do and, you know,

this is how I cover.

Q

And you say that

A

It's called a Niqab.

Q

Can you spell that for the reporter.

A

N-I-Q-A-B.

Q

And how long have you been covering you?

A Since I had converted over. For the past eight

years.

* * *