Atchison v. United States

257 A.3d 524

Terrence N. ATCHISON & Barry G. Bloomfield, Appellants,

v.UNITED STATES, Appellee.

Nos. 18-CF-599

18-CF-606

District of Columbia Court of Appeals.

Submitted March 17, 2020

Decided August 19, 2021

Sean R. Day was on the brief for appellant Atchison.

Gregory M. Lipper was on the brief for appellant Bloomfield.

Jessie K. Liu, United States Attorney at the time the briefs were filed, and Elizabeth Trosman, Suzanne Grealy Curt, Brittany Keil, Melissa Jackson, and Michael E. McGovern, Assistant United States Attorneys, were on the brief for appellee.

Before Thompson and Beckwith, Associate Judges, and Fisher, Senior Judge^* .

Dissenting opinion by Associate Judge Beckwith at page 538.

Thompson, Associate Judge:

A jury convicted appellants Terrence Atchison and Barry Bloomfield of aggravated assault while armed ("AAWA"), two counts of assault with a dangerous weapon ("ADW"), assault with significant bodily injury while armed ("ASBIWA"), ASBIWA against a minor, five counts of possession of a firearm during a crime of violence or dangerous offense, unlawful possession of a firearm, and destruction of property. On appeal appellants argue that the trial court erred in declining to suppress Global Positioning System (GPS) data from their ankle monitoring devices; abused its discretion in allowing evidence of generalized inter-community hostility between the appellants’ neighborhoods and that of the victim; and deprived them of due process and of their right to present a complete defense by barring them from rebutting the government's evidence of inter-community feuding with evidence of intra-community violence involving one of the shooting victims. In addition, appellants contend that the evidence was insufficient to show that they participated in, or aided or abetted, the shooting. Although we agree with appellants that the proffered evidence of intra-community violence was not third-party perpetrator evidence that the trial court was required to exclude under Winfield ,¹ we are persuaded that any error in excluding the evidence was harmless beyond a reasonable doubt. Because we reject appellants’ other arguments, we affirm.

I.

The charges against appellants arose out of the February 12, 2016, shooting of Andre Wilkinson and his twenty-two-month-old son, B.T., at Wrenn's Barbershop (the "barbershop"), located at 1005 Eighth Street, S.E. The evidence at trial established that at around noon on that day, Wilkinson went to the barbershop with B.T. Wilkinson sat in a chair, holding B.T. in his lap, while he waited for service. Several witnesses recounted what occurred while Wilkinson continued to wait. Janine Daugherty testified that she saw three people dressed in black wearing masks at the door of the barbershop. Barbers Harold Chatman and Sheila Knox testified that they looked up from their customers and saw two masked men. Chatman saw one of the masked men pull a black gun from his front waistband. Daugherty "saw an arm come in" and start shooting. Chatman, Daugherty, and Knox all testified that the gunfire was directed at Wilkinson and his son. Knox and Chatman testified that they heard two sets of shots and saw a gunman firing in Wilkinson's direction, while Daugherty testified that she saw two men shooting in his direction. Wilkinson testified that he saw a person with a covered face at the door to the barbershop, and that he dove to the ground when he saw the person reach for his waist. Once the masked men left the barbershop, Knox went outside and flagged down an ambulance that was driving by. Both Wilkinson and B.T. were wounded and were taken to hospitals.

Edward Zeigler, who was in a vehicle going south on Eighth Street near L Street at the time of the shooting, testified that he heard gunshots and then saw three men, all wearing ski masks, running down the sidewalk away from the barbershop. Zeigler testified that while exiting the barbershop, the third man "paused[,] ... raised up his arm and ... fir[ed] multiple shots [from a handgun] into the salon." The three men then ran around the corner onto L Street. Zeigler saw no one else outside the barbershop. Stephanie Yeager was walking north on Eighth Street near L Street at the time of the shooting. She heard gunshots and then saw "at least two" people dressed in black with covered faces run away from the barbershop and get into a white SUV that was facing west on L Street. Yeager looked in the other direction momentarily, and when she looked back in the direction where she had seen the white SUV, it was gone. Clifton Jenkins, who lived above the barbershop, testified that he saw a white car parked on L Street approximately twenty minutes prior to the shooting. A residential security camera captured the sounds of the barbershop gunfire at 1:40 p.m., and the video footage showed the white SUV, just a minute later, on L Street.

Metropolitan Police Department ("MPD") Patrol Officer Sarah Mickey testified that, in response to an increase in violent crimes in the Greenleaf Gardens neighborhood and the adjacent James Creek and Syphax Gardens neighborhoods in the southwest quadrant of the District of Columbia, she and her partner, Officer James Jacobs, had been assigned to special beats covering those areas. During the course of their work, Officers Mickey and Jacobs came to know appellants from James Creek/Syphax Gardens, and Wilkinson from Greenleaf.

Officer Mickey developed a lead relating to the white SUV. Specifically, when she learned that a white SUV had purportedly been used as a getaway car after the shooting at the barbershop, she recalled having seen appellant Bloomfield sitting in the driver's seat of a white SUV on the 1500 block of First Street, S.W. On that occasion, Mickey had run the vehicle's plates and discovered that the car had been rented by Hertz Rent-a-Car ("Hertz") to Michael Ellis about three weeks before the shooting. In the aftermath of the shooting, Mickey contacted Hertz to see whether Ellis had extended his rental of the white SUV. Hertz confirmed that the car had not been returned to Hertz.²

Officer Mickey also recalled that she had previously asked the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") to place a video camera overlooking the parking lot of 1514 First Street, S.W. She put MPD Detective Robert Saunders, who led the investigation into the shooting, in touch with an ATF agent who had access to the video footage. The ATF provided the footage, with the following summary:

At 13:10, a white car pulls up; and one guy gets out. Five minutes later, six guys come back to the car. Four get in and park.

After receiving the ATF video, Detective Saunders asked Officers Jacobs and Mickey to look at the video individually to see if they could identify any of the men depicted in it. Both officers independently identified the driver as Anthony Chambers (appellant Atchison's brother) and two of the passengers as appellants.³ Saunders also obtained video evidence from the District of Columbia Department of Transportation and the Marine Barracks that showed the path of the white SUV between 1:15 and 1:21 as it drove towards the barbershop. Video footage also showed the white SUV heading towards the highway after the shooting. Ballistics evidence showed that three guns were used in the shooting.

On the date of the shooting, both appellants were being monitored by the Court Supervision and Offender Services Agency ("CSOSA") via GPS ankle monitoring devices that CSOSA had required each to wear. As part of his investigation, Detective Saunders searched CSOSA's GPS database to learn whether anyone on CSOSA GPS monitoring was in the vicinity of the barbershop at the time of the shooting. Detective Saunders testified that while the search turned up hits for five individuals who came within 200 feet of the barbershop on the day of the shooting, police discerned from a GPS report that both appellants — but no one else who was being monitored — "appeared to be in front of the [Eighth Street, S.E., barbershop] location" at 1:41 p.m., the time of shooting. More detailed GPS records, which GPS expert Ashley Fuller explained have an approximately fifty-foot margin of accuracy, put the ankle devices for both appellants "close[ ] to Eighth Street, Southeast" at the time of the shooting. The GPS records also showed that appellant Atchison's ankle device was close to the barbershop earlier in the day, at approximately 12:40 p.m. and that Atchison's coordinates during the time in between his two visits to the barbershop area and during the time immediately after the shooting were consistent with the path taken by the white SUV as captured by the various security cameras that showed the vehicle. The GPS records showed the same as to Bloomfield's ankle device during the minutes immediately before and after the shooting.

Police found a ski mask in Bloomfield's bedroom after the shooting. He was a possible contributor to the DNA mix found on the mask.

II.

Appellants contend that CSOSA's ankle-monitoring-device GPS surveillance violated their rights under the Fourth Amendment and in addition that CSOSA violated their reasonable expectation of privacy when it shared the GPS data with MPD. Accordingly, appellants contend, the trial court erred in denying suppression of the GPS data and the fruits of those data.⁴

At the time the parties filed their briefs in this appeal, there was pending in this court another case that raised the same Fourth Amendment issues that appellants have raised here. That case, United States v. Jackson , has since been decided, see 214 A.3d 464 (D.C. 2019), and appellants concede that it "control[s] the outcome" of the Fourth Amendment issues in this case. We agree.

Mr. Jackson had been convicted of armed robbery and sentenced to twelve months’ incarceration, with all but four months suspended in favor of a year of probation supervised by CSOSA. Id. at 468. Mr. Jackson's court-imposed conditions of probation did not include GPS monitoring,...