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

. Before B LACKBURNE

- R IGSBY , Chief Judge , * F ISHER , Associate Judge , and F ERREN , Senior Judge

.

B LACKBURNE

- R IGSBY , Chief Judge : Following an extended months

- long joint jury trial, appellant s Robert B ost, Jeffrey Best, Sanquan Carter, Orlando Carter, 1 and Lamar Williams were each convicted of participating in at least one of two separate , but related conspiracies to commit murder that in total left five dead
and eight injured

. Specifically, Best, Sanq uan, and Orlando were found guilty of murdering Jordan Howe and injuring two others on March 22, 2010 , in retaliation for the theft of Sanquan’s bracelet (“first conspiracy”)

. 2 On March 23, 2010, t o avenge Howe’s murder, Howe’s half

- brother, Marquis Hicks , along with three friends , shot Orlando

. In retaliation for Orlando’s shootin g , Bost, Orlando, Best ,

* Chief Judge Blackburne

- Rigsby was an Associate Judge at the time of argument . Her status changed to Chief Judge on March 18, 2017.

1 Sanquan Carter and Orla ndo Carter are brothers. For clarity, this opinion will refer to Sanquan Carter as “Sanquan” and Orlando Carter as “Orlando.”

2 The government charged Williams with involvement in the first conspiracy to kill Howe, but the jury acquitted him of those ch arges. In addition to Howe’s murder, the shooting wounded juvenile V.K.M. and Tavon Lambert.3
and Williams conspired to murder Howe ’s friends (“second conspiracy”)

. 3 On March 30, 2010, Bost, Orlando, and Best murder ed Tavon Nelson for his firearm
and then the three co - conspirators , with assistance from Williams, conduct ed a drive

- by shooting on the 4000 block of South Capitol Street , Washington, D.C., where some of Howe’s friends had gathered in Howe’s remembrance. Th e shooting left three dead an d six wounded. 4

In their conso lidated appeal s , appellants

— both jointly and individually

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

. For the forthcoming reasons, we affirm the judgments of the Superior Court. In light of the length of this opinion, we set forth below the followi ng table of contents as an aid to the reader.

3 By the time of the second conspiracy, the police had already arrested Sanquan in connection with Howe’s murder.

4 Specifically, Brishell Jones, Devaugn Boyd , and William Jones were killed, Kevin Attaway was grievously injured, and Jamal Blakeney, Ra’Shauna Brown, Ja B arie Smith, Darrick Lanier, and Tierra Brown were injured.4
Table of Contents
I. Factual Background

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

................................ 5
B. Retaliatory Shooting of Orlando

................................ ...................... 9 C. Secon d Conspiracy: Murder of Tavon Nelson and South Capitol Street Shooting

................................ ................................ .................... 10
D. Government’s Evidence of the Crimes

................................ ......... 13
E. Convictions and Sentences

................................ ............................. 1 8
II. Pre t rial Issues

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

................................ ................................ ........... 19
B. Joinder and Severance

................................ ................................ .... 2 6
III. Issues Arising Durin g Trial

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

................. 50
B. Technical Issues with Husher

................................ ........................ 6 2
C. Statements Against Penal Interest

................................ .................. 69
D. Withdrawal F rom Conspiracy Jury Instruction

............................. 83
E. Other Issues

................................ ................................ .................... 8 7
IV. Juror’s Note

................................ ................................ ............................. 90
V. Best’s Ineffec tive Assistance of Counsel Claim

................................ ...... 9 8
VI. Conclusion

... ...................................................................11 65
I. Factual Background

A. First Conspiracy: Alabama Avenue Shooting 5

On the night of March 21, 2010, Sanquan was at a party with a group of acquaintances, includi ng Andre Morgan a nd Jordan Howe , who were godbrothers , i n the basement apartment of Jam’ ya Wilkins , located at 1333 Alabama Avenue, Southeast , Washington, D.C . At the party, Sanquan showe d off his fake diamond bracelet to numero us individuals, including Howe

. After the p arty, Sanquan realized that his bracelet had been stolen. He became upset and rampaged through Wilkins’s apar tment looking for the bracelet , which he suspected that one of the men at the party had stolen . Sanquan , with assistance from Morgan, then went t o find Howe at Howe’s apartment, where Sanquan confronted Howe about the bracelet. In response, Howe told Sanquan, “[M]an, nobody got that fake bracelet, not nobody,” and Sanquan responded, “[ Y]’all motherfu**ers playing. Y’ all need to come up with the b racelet.” Morgan and Sanquan then attempted to find and confront the other men at the party , but were unable to locate them. Undeterred,

5 A majority of the facts pertaining to the commission of both conspiracies came from the testimony of co

- conspirator Nathaniel Simms, who admitted participation in the relevant shootings and served as a witness on behalf of the government, pursuant to a plea agreement.6

o n his way back to the apartment building on Alabama Avenue, Sanquan called his older brother Orlando and told him th at he had been robbed and to “bring everything.”

When Sanquan called , Orlando was with his friend, Nathaniel Simms , in a silver Kia Spectra, which belonged to Simms’s girlfriend, Brittany Young. Orlando told Sanquan on the phone, “[W]e about to be on our way up there” and he then told Simms that Sanquan had just been robbed and that they needed to pick up their other friend , Best , to ride with them to meet Sanquan . Simms and Orlando first went to the home of Orlando’ s godmother , Shiree Little , where Orla ndo picked up his AK

- 47 rifle , and afterwards, they picked up Best from his home. The three men then went to Williams’s home, where Williams gave them Simms’s
.380 pistol and Williams’ s shotgun. Orlando told the group, “[M]otherfu**ers robbed my little b rother[;] they going to see.” Best replied, “[O]h, yeah, I love this sh**. I love this sh**.” Williams then showed Best how to use the shotgun. In preparation for the encounter, Orlando switched from his bright red jacket into a b lack jacket that was i n the Kia’ s trunk and Best also switched into another jacket

. Williams got out of the car before the men drove off toward 1333 Alabama
Avenue , Southeast

.7
When Si mms, Orlando , and Best arrived at Alabama Avenue, Sanquan approached the car and Orlando told him to “come on.” Sanquan replied, “You think I brought [you] all the way over here for nothing?” Sanquan then took the .380 pistol from Simms

. Sanquan, Orlando, and Best approached the apartment building where the party had occurred earlier and where numerous individuals who
had attended the party were still standing outside. Sanquan brandished the .380 pistol, Orlando brandished the AK

- 47 , and Best held the shotgun, wh ile Simms remained in the car.

Sanquan held the individuals in front of the apartm ent at gunpoint while he patted them down and demanded the return of his bracelet. After one of the individuals refused to be patted down, Sanquan turned to Orlando and Orlando asked Sa n quan if he should, “Go ham?” , i.e., whether they should start shootin g, to which Sanquan replied, “Go ham.” The three men then started shooting at the
group indiscriminately. Sanquan fired all five rounds t hat had been in the .380 pistol, Orlando fired all twenty

- eight rounds from the AK

- 47, and Best fired the shotgun thr ee times. During the shooting, Howe, who was in a car nearby, was hit by a stray bullet and died , while two others, juvenile V.K.M. and Tavon Lambert , were injured by the gunfire

.8 After seeing Howe’ s body and realizing that Howe was dead, Morgan , who had sup ported Sanquan up to that point but who was Howe’s god brother, left the

scene vowing revenge on the Carter brothers . He immediately went to meet with other friends and told them what had occurred, and they all formed an agreement to murder Sanquan and Orlando in retaliation. Jordan Howe’ s cousin, Kalisha Howe, who had been present during the shooting, remained on the scene and identified Sanqu an that night to the police from a photograph. She also identified Orlando from a nine

- person photo arra y the following day, saying it “could be” him. Wilkins , the woman who hosted the party in her basement apartment, also identified Sanquan on the night of the shooting.

After the shooting, Simms drove Sanquan, Orlando, and Best to the apartment of one of the C arter brothers’ relatives by marriage, Ronald Ray. At the apartment, the men hid their weapons and boasted about the shooting. Sanquan explained to the men what had happened before their arrival and complained that
he was given a gun with only five bulle ts

. Best said that he was not sure if he had successfully fired the shotgun, but thought he may have once. Orlando bragged that he had shot Howe and shot at a “nosy” woman on the top floor of the9 apartment building. 6 After the discussion, Simms alon e le ft Ray’ s apartment

. The next day, while Simms was in the Kia with his girlfriend, Young, he met Orlando and Best and allowed Orlando to get his red jacket and Best to get his black jacket from the trunk of the car , all of which Young later testified to wi tnessing

.

B. Retaliatory Shooting of Orlando

On March 23, 2010, police arrested Sanquan for his involvement in Howe’s murder. Meanwhile, Morgan planned his retaliation for H owe’s murder with
Howe’ s half

- brother , Marquis Hicks, and two friends. M organ a nd the three others drove to Sixth and Chesapeake Street s , Southeast, a location where Orlando was known to hang out, and recognized Orlando in his red jacket. Hicks approached Orlando on foot and shot him, resulting in a graze to Orlando’s head and a bul let in his shoulder. Best and Bost, who was another friend of Orlando ’s , were present during the shooting. At the hospital, Orlando told Best, Bost , and Simms that Sanquan had been arrested , and that the guns had to be moved from Ray’s apartment . Simms and Best moved the shotgun and the AK

- 47 f rom Ray’s apartment to Williams’s apartment.

6 Ray subsequently identified Sanquan, Orlando, Best, and Simms from separate nine

- person photo arrays as the men who had arrived at his house late that night.10
C. Second Conspiracy: Murder of Tavon Nelson and South Capitol Street Shooting
The next day, Simms and Bes t visited Orlando at his mother’ s house, where Orlando told th em that he believed his shooter was one of Howe’s friends , and that he wanted to attack Howe’s funeral in revenge ( which was to take place on March
30 )

. In conjunction with Simms, Best, Bost , and Williams , Orlando decided to
procure more guns and to rent a minivan for the shooting. On March 27, 2010, Orlando, Simms, Best and Bost obtained a 9mm pistol from Orlando’s father and
Bost independently obtained a .45 pistol. Simms and Best bought and delivered two boxes of ammunition to Williams. On March 29, Simms, Orlando and Best tried three times to rent a minivan, but no one had sufficient credit to successfully rent the minivan . Orlando then asked his godmother to rent the min ivan from a

rent

- a - car facility and , after two failed attempts, they successful ly rent ed a silver Chrysler Town & Country minivan at about 5:45 p.m. on March 30 ; however, Howe’s funeral had already taken place by that time

.

Undeterred, Orlando set into motion a new plan to shoot Howe’s relatives. First, Orlando, Best, Bost, Simm s, and Williams retrieved the firearms and
ammunition

. Once the weapons were recovered and the co

- conspirators were driving in the van, however, Williams told the others, “ Y’all about to go11

commence. Y’ all can let me out right here,” and he exited the va n. Because they only had three guns (AK

- 47, 9mm Glock , and .45 pistol) amongst the four of them, Orlando drove to the Wingate Apartments to rob a man , Tavon Nelson, who he knew carried a gun. Orlando sent Best and Bost to rob Nelson. Best took the 9mm

a nd Bost took the .45 and both wore masks rolled

- up to the top of their heads. Best
and Bost a ttempted to rob Nelson and a shootout occurred at which Nelson was killed. Bost admitted to his cohorts back at the van that he was the one who dealt the killing blow, stating , “Yeah, [Best] hit him, but I finished him.” When Orlando asked where the gun was, however, Best replied that it was left behind with Nelson, which upset Orlando but he decided nonetheless to drive away without Nelson’s gun

. Police respond ed to the scene within minutes and a witness informed them that , after the shooting , she saw a man run and enter a silver Chrysler Town & Country minivan. Police recovered seven 9mm shell casings and three .45 shell casings from the scene of Nelson’s murd er .

Orlando then drove the van immediately to the 4000 b lock of South Capitol Street, where many of Howe’s friends were gathered in a front yard, wearing remembrance shirts from Howe’s funeral. Orlando drove up close to the crowd

an d lowered the van ’ s windows. Orlando told the other men, “When I pull over, have them guns hanging out the window.” All of the men then pulled down their12 masks and began firing their weapons

. As Orlando drove, Bost fired the .45 pistol from the front passenger window, S imms fired the AK

- 47 from the rear passenger window, and Best fired the 9mm G lock from both the rear passe nger window and the rear driver’ s side window. Numerous individuals were shot

.

Following the s hooting, Metropolitan Police Department (“MPD”) Serg eant Laswuan Washington and his partner, Sergeant Cowan , pursued the minivan because it matched the lookout description officers had received from the witness at the scene of Nelson’s murder. During the pursuit, Sergeant Washington caught a glimpse of Orl ando. As the police pursued the minivan , Simms threw the AK

- 47 out of one of the windows. Orlando then hit a police car in a nearby alley and all four men jumped out of the van and started running in different directions

. Officer Christopher Dyke chased Orlando and Best and observed them both remove and throw their jackets to the ground as they ran. When the two men split up, Officer Dyke fo llowed Orlando and caught him, while a nother officer recovered Best’s jacket. Meanwhile, Simms , who had been ru n n in g in a different direction , was chased down by Officer Jeremy B ank and eventually surrendered. Officer Daniel Egbert saw Bost flee from the van and pursued him, but was unable to catch him. Best and Bost were both later apprehended by the police in con nection with the murders.13 At the scene of the South Capitol Street shooting, the police found the dying and injured victims “ piled up on top of each other.” Brishell Jones, Devaughn Boyd, and William Jones died from their injuries, while six others surv ived their injuries , but one of whom s uffered a severe brain injury.

D. Government’s Evidence of the Crimes

At the subsequent joint trial of the five co

- defendants, 7 the government presented considerable evidence linking all five appellants to one or both o f the mass shootings. The government’s strongest evidence in proving its case, included:

1. Testimonial Evidence

Testimony from Nathaniel Simms regarding b oth c onspiracies : Simms testified as a government witness to the event s leading up to and during th e three shootings on Alabama Avenue, at the Wingate Apartmen t complex , and on South Capitol Street. Simms testified that , around midnight on March 22, 2010, he ,

7 While Simms was initially charged with the other co

- defendants, he agreed to act as a government witness pursuant to a plea deal, and his case was severed from t he others.14 Orlando, and Best gathered firearms and drove to Alabama Avenue after learning that Sanquan ha d been robbed. Simms testified that he stayed in the car, while Orlando, Best and Sanquan appro ached a group on Alabama Avenue and opened fire. With regard to the shooting on March 30 on South Capitol Street, Simms testified that he, Orlando, Bost , and B est had planned to shoot Howe’s associates
in retaliation for the prior shooting of Orlando. He testified that , before the South Capitol Street shooting, the four of them rode in a minivan to the Wingate
A partment complex, where Bost and Best unsuccessful ly attempted to rob Nelson of his firearm. Simms further testified that he, Orlando, Bost and Best then rode to South Capitol Street, where he, Bost , and Best all fired weapons into a crowd of people wearing remembrance shirts for Jordan Howe

.

Best’s c o nfession to Martaraina Salazar : The government presented testimony from Martaraina Salazar, Simms’s girlfriend , that , at about midnight on the night of the South Capitol Street shooting, Best came to her home and picked up a bag that Simms had left there

. Salazar testified that Best later returned and , as the y smoked marijuana , he told her details of the shooting. He told her that Simms shot the AK

- 47 while Bo st shot the .45 pistol, that Orlando drove the van , and that a girl had been shot in the head

. Best also told Salazar that he hoped that Orlando and Simms would not implicate him. Salazar testified to Best’s confession at trial.15
Best’s c onfession to his m other and a rrest : On April 22, 2010, police executed a series of search warrants based in pa rt on the information the officers received from Simms

. One of the searches was conducted at the home of Best’ s mother, La v erne Best. Best called and told his uncle about the search and his uncle picked him up. Best denied any involvement in the shootin gs to his uncle, but was crying and nervous. Best’s uncle urged him to turn himself in, but Best got out of the car and r an away. Best’ s mother Ms. Best, also spoke to Best on the phone and urged him to tur n himself in, but Best refused. On April 26, po lice located and arrested Best. The police brought Ms. Best to the police station, where she, Best, and a detective spoke in an interrogation room. Once the detective left the room, Best and his mother had a private conversation, which was captured on vi deo

. Ms.
Best aske d her son , “[Y]ou didn’ t hurt no one, huh? . . . Did you? . . . Huh? . . . S o that’ s true out there, huh? Huh?” There was a dispute as to whether Best nodded in response, but the recording of the conversation demonstrated that Best di d appear to slightly lower his head and raise it back up, and then look at his mothe r and move his head again. After this non

- verbal response, she asked him, “What for? Cause h e shot Orlando?” Best then started crying, lowered his head again, and asked his mother for a hug, and she responded, “Yea Jeffrey, but I don’t know why you would do something like that . . . see what Orlando got you into.” At trial, Ms. Best was shown the video of her conversation with her son, but she16
testified that she had not seen her son nod his head or admit involvement. She was impeached with her grand jury testimony, however, during which Ms. Best stated that she had observed her son nod his head. 8

2. Forensic Evidence

Minivan : Police searched the minivan and recovered se ven AK

- 47

- type casings. Inside the front of the van, police fou nd Orlando’ s cell phone, which contained a text message from a number associated with Simm s, stating “Funeral on Tuesday.” A mask and a hat containing DNA mixtures, including Orlando’ s DNA, w ere recovered from between the front seats. A cigarette butt containing Simms’ s DNA was found near the rear passenger seat. A swab from the front passenger side door of the minivan contained a single

- source partial profile, f rom which Bost could not be e xclud ed. DNA t esting , however, did not reveal Best’ s nor Williams’ s DNA inside the minivan.

8 The g overnment also presented Harry Graham, Best’s friend, as a rebuttal witness. Graham testified that he was selling drugs in the area of Sixth and Brandywine Streets on March 30, 2010, when police swarmed the area. He stated that as he p roceeded to leave the area in his car, he saw Best coming down Sixth Street, Best was sweating, breathing hard, and not wearing a jacket. Best asked Graham for a ride to his long

- time girlfriend Sarah Proctor’s apartment. When Graham asked Best about the gunshots, Best said he did not want to talk about it, and th ey rode to Proctor’s apartment.17
C lothing : A DNA sample from the jacket that Officer Dyke recovered during the chase revealed a mixture of at least three individuals; while the swabbing revealed no major contributor, the major contributor of the cutting matched Best’s DNA. A mouth cutting and forehead cutting from the mask recovered behind the church contained mixtures of at least two people’ s DNA, of which B ost was the major contributor.

Fore nsic evidence of the shell casings and bullets : Shell casings from the .380 pistol that Sanquan fired were recovered from the scene of the Alabama Avenue shooting. The AK

- 47 thrown during the chase following the South Capitol Street shooting also matched the casings recovered from both the scene of the Alabama Avenue shooting and the South Capitol Street shooting. The 9mm and .45 caliber casings , recovered from the shooting of Tavon Nelson , were fired by the same weapons that left casings at the South Ca pitol Street shooting.

3. Record Evidence

Phone Records : An analysis of appellants’ call records showed a web of completed and attempted communications between all appellants (other than Sanquan) in the months leading up to the South Capitol Street shooti ng on March18 30, 2010. However, after the South Capitol Street shooting, Best, Bost, and Williams continued communicating, but none of the three tried to call Orlando or Simms. By April 3, 2010, all communi cations stopped among st appellants’ phones.

E. Co nvictions and Sentences

On February 21, 2012, appellants were jointly tried for their involvement in either one or both of the conspiracies. 9 Following a three

- month trial, on May 7,

9 Specifically, for involvement in the first conspiracy, Sanquan, Orlando, Best, and Williams were charged with conspiracy, first

- degree murder, assault with inte nt to kill while armed (“AWIKWA”), and related charges for the March 22, 2010 shooting at 1333 Alabama Avenue, Southeast. The indictment further alleged charges relating to the second conspiracy. Specifically, the indictment stated that after Orlando wa s shot in retaliation for Howe’s murder, Orlando, Best, Bost, and Williams conspired from March 23

- 30, 2010, to shoot attendees of Howe’s funeral. In order to obtain an additional firearm for the shooting, on March 30, 2010, Orlando, Best, and Bost attemp ted to rob Tavon Nelson of his firearm at the Wingate A partment complex, resulting in Nelson’s death. They each were charged with aggravated first

- degree premeditated and felony murder for Nelson’s murder. Immediately following Nelson’s murder, Orlando, B est, Bost, and Williams conducted a drive

- by shooting on the 4000 block of South Capitol Street on March 30, 2010, leading to the deaths of Brishell Jones, Devaugn Boyd, and William Jones, and injuries to Kevin Attaway (grievously injured), Jamal Blakeney, Ra’Shauna Brown, JaBarie Smith, Darrick Lanier, and Tierra Brown. For this second shooting, Orlando, Best, Bost , and Williams were further charged with three counts of aggravated first

- degree premeditated murder, seven counts of AWIKWA, and related offen ses. (continued . . .)19 2012, the jury convicted Sanquan, Orlando, Bost, and Best of all count s. Williams was acquitted of any involvement in the first conspiracy regarding the Alabama Avenue shooting, but was convicted of lesser

- included second

- degree murder charges for his invol vement in the second conspiracy related to the South Capitol
Street s hooting. On September 11, 2012, Orlando, Bost, and Best were sentenced to life imprisonment without release, Sanquan was sentenced to 54 years of imprisonment , and Williams was sentenced to 30 years of imprisonment. These consolidated appeals followed.

II. Pret rial Issues

A. Change of Venue

Orlando , joined by all appellants , argue s that the trial court erred in denying his motion for a change of venue to a federal court outside of the District of Columbia, and that , in doing so, the trial court violated his constit utional right to a fair trial.
(. . . continued) Orlando was separately charged with assault on a police officer (“APO”) while armed for ramming a police vehicle at the end of a high

- speed chase immediately following the South Capitol Street shooting.20
1. Additional Factual Background

On January 19, 2012, Orlando filed a motion seeking a change of venue. He claimed that because of the “pervasive and irremediable adverse local pretrial publicity” regarding his charged role in the South Capitol Street murders, it was impossible for him to receive a fair trial in the District of Columbia, and that the Sixth Amendment required his case to be transferred to a federal district court outside of Washington, D.C

. Orlando clai med that Super. Ct. Crim. R. 20 (a) authorize s a change of venue for such a purpose

. 10

10 Rule 20 (a) states in pertinent part: When an indictment, information, or complaint is pending in the Superior Court against a defendant who is arrested, held, or present in another district , the prosecution may be transferred to that district if: (1) the defendant states in writing a wish to ple ad guilty or nolo contendere and to waive trial in the District of Columbia, consents in writing to the court’s disposing of the case in the transferee district; and (2) the United States attorneys in both districts approve the transfer in writing. (emph asis added).21
The trial court summarily denied Orlando’s moti on to change venue during a
pre trial hearing on January 27. The court later explained its decision on February
9 , observi ng that the Court of Appeals already “has said that there is no ability for change of venue in the District of Columbia , ” and that “[m]ore . . . significantly” the court was “confident [that it could] pick a fair jury” for the case. The record
reflects th at the trial court conducted an extensive jury selection process that spanned four days , and that during the voir dire, the court questioned the prospective jurors regarding what, if anything, they ha d heard about the South Capitol Street murders, includin g their exposure to any media coverage of the mass shooting. Ultimately, of the selected jury , nine jurors did not recall media coverage of the shooting, while three of the jurors 11 were exposed to only minimal
coverage such that the court and all of the d efendants 12 were confident that it would not have an effect on the jurors’ ability to be fair and impartial. Further, the trial court admonished the jury both during preliminary and final jury instructions to avoid any outside publicity on the shooting and to decide the case based solely on the evidence presented at trial

.

11 Jurors 624, 064, and 490.

12 None of appellants’ counsel moved to strike these three jurors for cause, sought further questioning, n or raise an y objection to their selection.22
2. Analysis

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

venue because that relief is not available for cases tried before the Superior Court of the District o f Columbia. 13 It is a fundamental Sixth Amendment right that defendants are entitled to “a fair trial by a panel of impartial, ‘indifferent’ jurors,” Welch v. United States , 466 A.2d 829, 834 (D.C. 1983) (quoting Irvin v. Dowd , 366 U.S. 717, 722 (1961)), and ordinarily a change of venue is “an appropriate remedy” “[w]hen a threat to this constitutional protection is posed . . . .” Id. However, because the Superior Court of the District of Columbia “sits as a single unitary judicial district,” a change of venue is not available in the District of Columbia. Id. (citing United States v. Edwards , 430 A.2d 1321, 1345 (D.C. 1981) (en banc)). Accordingly, we have said that the trial court ’s denial of a motion for a change of venue is “required.” Id. Because it i s a “fundamental” rule “in our jurisdiction that ‘no division of this court will overrule a prior decision of this
court’” Washington v. Guest Servs

. , Inc. , 718 A.2d 1071, 1075 (D.C. 1998)

13 The government contends that Orlando failed to preserve his request for a change of venue by not objecting to the jurors that were im paneled. The government also maintains that all of Orlando’s co

- appellants, aside from Bost, failed to explicitly join in Orlando’s written motion, and that they therefore cannot joi n in Orlando’s claim on appeal. We need not decide whether plain error review governs here because Orlando’s argument is meritless under any standard of review.23 (quoting M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971) ) (footno te omitted ) , absent en banc rehearing, the trial court’s denial of Orlando’s motion for a change of venue was likewise “required , ” in this case. Welch , supra , 466 A.2d at 834.

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

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

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

. Orlando also claims that Super. Ct. Crim. R. 20 authorizes the Superior Court to transfer his case to a federal court. His reliance on Rule 20 (a) is misplaced. Rule 20 (a) only applies to defendants charged in Superior Court, but arrested outside of the District of Columbia. The Rule specifies that such (continued . . .)24 because the requested remedy is unavailable.” Welch , supra , 466 A.2d at 834

. “Instead, other measures must be employed to assure that appellant’s right to a fair
trial is preserved.” Id. at 83 4

- 3 5. “[I]n the absence of extreme circumstances, the Sixth Amendment inquiry [usually] turns on the adequacy of the voir dire.” Id

. at 835 (citations omitted)

. In Welch , we explained: [T]he test we apply in scrutinizing the effec tiveness of the voir dire examinations is not whether a juror had been exposed to the facts and issues of the case nor whether he or she has formed an opinion as to the guilt or innocence of the accused but rather whether the nature and strength of the opi nion formed are such as to raise the presumption of partiality. Id. at 836. Key considerations in making this determination include the juror’s own assertion of whether he or she “is able to lay aside his or her impressions” and the trial court’s asse ssment of the juror’s demeanor, which is a decision “particularly within the province of the trial judge.” Id. (citations and internal quotation marks omitted).

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

- appellants.25
He re, admittedly, the initial pre trial publicility surrounding the South Capitol
Street mur ders was high, which is not surprising given the number of casualties involved. However, the record also demonstrates that the trial cour t carefully

ensure d that appellants’ right s to a fair and impartial jury were protected through the voir dire process . Jury selection took place over the course of four days and

e ach prospective juror was individually asked by the court about his or her knowledge of the South Capitol Street murders. The government and defense counsel for each appellant were given the op portunity to futher question and strike jurors

. The trial court also excused jurors who indicated that they may h ave been influenced by media coverage.

In fact, it is noteworthy that , for such a high

- profile case , of the twelve jurors eventually selecte d , nine had no recollection of relevant media coverage and three were exposed to only minimal coverage . All three jurors who were exposed to
some pre trial publicity expressly stated that it would not influence their decision. Because we give weight to a juror’s own assertion of his or her ability to be impartial and defer to the trial court’s assessment of a juror’s credibility , we hold that the trial court’s safeguards during “ voir dire served to protect the right to a fair trial by an impartial jury.” Welch , supra , 466 A.2d at 837 (citations omitted)

. Our conclusion is bolstered by appellants’ defense counsel s’ failure to object to any of26
the im paneled jurors, including the ones w ho had been exposed to some pre trial publicity, and the fact that Orlando on appeal has not presented any evidence that the jury was actually partial. See United States v. Haldeman , 5 5 9 F.2d 31, 60 (D.C. Cir. 1976) (en banc).

B. Joinder and Severance

Sanquan argues that, because he was only charged with participating in the
fir st conspiracy (the Alabama Avenue shooting) , the trial court erred in joining his case with his co

- appellants’ charges stemming from the second conspiracy that led to the South Capitol Street murders. Bost makes the same argument but in reverse ; he argues that because he was only charged with participating in the second conspiracy, his case was misjoined with his co

- appellants ’ charges relating to the first conspiracy. They each claim their individual case was prejudiced by the joinder of the two conspira cies. Further, th ey both alternatively argue that the trial

court abused its discretion by refusing to grant their motions for severance.27
1. Additional Factual Background

On April 20, 2011, the grand jury returned a superseding indictment that explaine d the government’s theory of the case, including the causal relationship between the first conspiracy and the second conspiracy

. The indictment first alleged that Sanquan, Orlando, Best, Williams, and Simms conspired “to assault and kill individuals belie ved to be responsible for taking” Sanquan’s bracelet.
Pursuant to this first conspiracy, the conspirators hunted for the individuals that Sanquan believed were responsible for the theft

. Upon locating these individuals, Sanquan and his cohorts assembled and searched them for the missing bracelet and, when Sanquan could not find it, he became “ infuriated” and told Orlando and Best to shoot them. Howe was killed in the ensuing hail of gunfire that also wounded V.K.M. and Lambert. Later, Howe’s god brother, Morgan, half

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

The indictment further alleged that Orlando, Best, Williams, Simms, and
Bost next conspired “to assault and kill friends and associates of Jordan Howe

. . . in retaliation for the shooting of Orlando Carter that occurred on or about March 23, 2010 . . . .” A ccording to the indictment, Orlando “vowed to exact violent revenge and, to that end, recruited co

- conspirators” Best, Williams, Simms , and28
Bost to assi st him in killing “as many friends and associates of Jordan Howe as they possibly could . . . .” The conspirators gathered as many firearms as they could find and Orlando instructed Best and Bost to rob Tavon Nelson for his firearm. Best and Bost then sh ot and murdered Nelson

. The conspirators then drove a rented minivan to the 4000 block of South Capitol Street, where Howe’s friends and associates were congregated in remembrance of Howe , and fired multiple weapons, leading to the death of three people a nd the wounding of six others.

Based on the government’s theory of the case as articulated in the indictm ent, Sanquan and Bost filed pre trial motions to declare misjoinder and,

a lternatively, for severance. 15 The government filed a consolidated oppositi on to Sanquan’s and Bost’s motions, claiming principally that the joinder of the two conspiracies was proper because the first conspiracy “logically” led to the second conspiracy, and that the two conspiracies operated “so closely connected in time and pla ce” that there was substantial overlap of evidence. The trial court denied

15 Williams and Best also filed motions to declare misjoi nder or, alternatively, to grant severance , but their claims are not relevant for purposes of this appeal. Williams was indicted for involvement in both the first and second conspiracies and he was acquitted of all charges stemming from the first conspira cy. Meanwhile Best sought only severance of a charge of unlawful possession of a handcuff key while at the D.C. Jail, which the trial court granted.29 Sanquan’s and B o st’s motion s to declare misjoinder and grant severance on January 6, 2012

. The court later explained its reasoning during the pre trial hearing on February 9 , stati ng that joinder is proper under Super. Ct. Crim. R. 8 (b) “when one offense leads logically to another,” such as “when the subsequent offense is a sequel to the initial of fense.”

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

to the first conspi racy to commit murder because the “killing of Jorda n Howe was the catalyst for the . . . retaliatory attempt on Orlando Carter’s life” that led Orlando to conspire with others to embark on the murder of Nelson and the South Capitol Street murders. The court further noted that Sanquan’s and Bost’s motions for severance w ere “meritless” because they “have failed to rebut the strong presumption in favor of a joint trial after the defendants and offenses were properly joined.” Because there w as a “substantial overlap of evidence with respect to the two charged conspiracies,” the trial court explained, “severance would result in significant prejudice to the [g]overnment and the substantial expenditure of additional resources by the court.” The court cited examples of this overlap, including: (1) “the re lationship amon g the defendants ” ; (2) four individuals (Orlando, Best, Williams, and Simms) are alleged to have pa rticipated in both conspiracies; (3) the same AK

- 47 assault rifle was alleged to have been used in30 both conspiracies; and (4) the motive for the second conspiracy “grew out of a crime committed in retaliation for the first conspiracy.” Lastly, the court emphasized that it was “confident that the case can be tried in a way that will

e nable the jury to make individual determinations about the guilt or innocence of each defendant.” Accordingly, the court explained that, in its preliminary instructions to the jury, it would “point[] out who is or isn’t charged in the first alleged conspir acy and who is or isn’t charged with respect to Tavon Nelson, and who is or isn’t charged . . . with respect to the second conspiracy.”

Several steps were taken during the course of trial to ensure that the jury was clear as to the charges pertaining to e ach individual appellant. As the court promised, it explained in its preliminary instructions to the jury that Sanquan was not charged under the second conspiracy and Bost was not charged under the first conspiracy, and that each defendant must be given “ separate consideration.” During Simms’s testimony, in the middle of trial, the parties also agreed that the trial court would give the following jury instruction: Any statement made by a defendant after March 22 nd , 2010 is not to be used as evidence agai nst Sanquan Carter. Sanquan Carter is not charged with any crime after March 22 nd , 2010. Likewise, any statement made by a defendant before March 23 rd , 2010 is not to be used a s evidence against Robert Bost.31
The court then again instructed the jury duri ng its closing instructions that “[e]ach [d] efendant is entitled to have the issue of his guilt as to each of the crimes for which he is on trial determined by his own conduct and from the evidence that applies to him as if he were being tried alone.” And , following the government’s rebuttal of Sanquan’s closing argument in which the prosecutor alluded to the fact that Sanquan’s initial shooting “started a chain of events” that led to the South Capitol Street murders, the trial court sua sponte gave a stro ngly worded curative instruction: It’s for you to determine what connection, if any, there is between the events that are alleged to have occurred at 1333 Alabama Avenue and the events alleged to have occurred at the Wingate and at South Capitol Street. B ut to be sure that there’s no confusion from the argument that’s been made I want to underscore that Sanquan Carter is not charged with the conspiracy that’s alleged to have occurred between March 23rd and March 30 t h. He’s not charged with any of the crim es alleged to have been committed at the Wingate or on South Capitol Street, but even more fundamentally, there’s not a shred of evidence that he has any responsibility whatsoever for the events that are alleged to have occurred between March 23rd and Marc h 30th. So I just want to underscore that. (Emphasis added). Lastly, when the jury sent a note during deliberations that it was confused about how to evaluate evidence against each individual defendant
and about the co

- conspirator liability instructio n, by the parties’ agreement , the trial court explained to the jury that the instructions were not inconsistent, and that,32
while “evidence of the conduct of a co

- conspirator could potentially be part of the evidence that applies to a defendant . . . you ar e expected to evaluate the issue of each defendant’s guilt indi vidually . . . .”

2. Legal Principles

“Joinder of two or more defendants and multiple offenses in one indictment for trial is authorized by Rule 8 (b) . . . .” Davis v. United States , 367 A.2d 1254, 1260 (D.C. 1976). 16 “We employ a ‘strong policy favoring joinder’ because it ‘expedites the administration of justice’ in numerous ways.” Ball v. United States , 26 A.3d 764, 767 (D.C. 2011) (citation omitted). “Moreover, joinder is preferred in con spiracy cases . . . .” United States v. Eiland , 406 F. Supp. 2d 46, 50 (D.D.C. 2005) (referencing Fed. R. Crim. P. 8 (b)). That said, “[m] isjoinder . . . is an error of law . . . subject [] . . . to de novo review.” Ray v. United States , 472 A.2d 854,

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

- defendants overlap.33
85 7 (D.C. 1984)

. Super. Ct. Crim. R

. 8 (b) (“Rule 8 (b)”) , 17 at the time the indictment was returned , state d in full : Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or tran saction or in the same series of acts or transactions constituting an offense or offenses . Such defendants may be charged in 1 or more counts together or separately and all of the defendants need not be charged in each count

. (Emphasis added). 18 Per the plain language of Rule 8 (b), it is not necessary that all defendants be charged in each count of the indictment for joinder to be proper, so long as all of the indicted offenses are based on “the same series of acts or
transactions constituting an offense or offenses.” Id. Thus, t he key question in this appeal is whether th e first conspiracy (in which Bost did not participate) and second conspiracy ( in which Sanquan did not participate) can be considered a part

17 Rule 8 (b) was amended in 2016 to read as follows: The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

18 In contrast to Rule 8 (b), under Rule 8 (a), “offenses may be joined if they are either similar in character or based on the same act or transaction,” so long as all offenses are alleged to have been committed by one defendant. Ray , supra , 472 A.2d at 857.34
of the “same se ries of acts or transactions , ” such that joinder of the charges and the defendants involved in both conspiracies was proper.

“Our case law establishes that separate offenses can constitute a joinable ‘series of acts or t ransactions’ where ‘one offense logically leads to another.’” Medley v. United States , 104 A.3d 115, 122 (D.C. 2014) (citations and brackets omitted). 19 “An offense leads logically to another when one crime is a ‘sequel’ to the other.” Id. (citations omitted). “S equel” offenses include attempts to cover

- up underl ying crimes, id. , flight, Ball , supra , 26 A.3d at 768, or where the subsequent offense “was directly occasioned by and grew out of” the underlying offense, Scheve v. United States , 184 F.2d 695, 696 (D.C. Cir. 1950). 20 The sequel offense need not “ inevitab l [ y ] result [from] the commi ssion of the underlying crimes . . . .” Bush v. United States , 516 A.2d 186, 192 (D.C. 1986) (emphasis added). We have said, however, that “the similarity of modus operandi in each of the crimes

19 Other types of offenses that meet the definition of “same series of acts or transactions” include “offenses committed as a means to a specific common end, or where they are directed toward some shared goal” and “where the offenses are part of a com mon scheme or plan, involving the same place, a short period of time, and a similar modus operandi . . . .” Jackson v. United States , 623 A.2d 571, 579 (D.C. 1993).

20 Opinions issued by the United States Court of Appeals for the District of Columbia Cir cuit prior to February 1, 1971, are binding on this court. M.A.P. , supra , 285 A.2d at 312.35 charged , ” alone, can not “fulfil l[] Rule 8 (b)’s requirement that [all] defendants be charged with having participated in a series of acts or transactions

. . . . ” Davis , supra , 367 A.2d at 1261 (in ternal quotation marks omitted); see also United States v. Suggs , 531 F. Supp. 2d 13, 25

- 26 (D.D.C. 2008) (explaining tha t the analogous federal Rule 8 ( b) “may not be read to embrace similar or even identical offenses, unless those offenses are related.”) (citation and internal quotation marks omitted) (emphasis in original). In short , “[t]h e series of acts envisioned by the drafters of Rule 8 (b) is one in which the individual offenses are connected or interrelated in such a manner that proof of charges against one defendant would necessarily have to be introduced in proving the jointly

- char ged offenses . . . .” Davis , supra , 367 A.2d at 1261 (emphasis added)

.

What is or is not considered a “sequel” offense can at times be unclear , so to illustrate this distinction , the decisions in Scheve and Settles v. United States , 522 A.2d 348 (D.C. 1987) are instructive. So , too , is the Seventh Circuit decision in United States v. Velasquez , 772 F.2d 1348 (7 th Cir. 1985). In Scheve , three of the four defendants sought to separate their charge s of illegally operating a gambling establishment from t he fourth defendant Joseph Scheve’s individual charges of assault with intent to kill and assault with a deadly weapon. 184 F.2d at 695

- 96. Scheve was also charged as a member of the illegal gambling enterprise

. Id. The36

court concluded that the charges were properly joined because “[t]he assault was directly occasioned by and grew out of the gambling offense.” Id. at 696. Specifically, the evidence showed that all four defendants operated the gambling house and when the wife of Ricker, a “heavy loser,” demanded that the gambling house return some of their money, Scheve “pushed” her and then pointed a gun at Ricker and struck him with it. Id. Accordingly, the court concluded that joinder was proper because “there was an unbroken chain of causation betw een the defendants’ gambling business, Ricker’s losses, his wife’s demand for return of some of the money , Joseph Scheve’s assault on her, Ricker’s apparent attempt to intervene, and Scheve’s assault on Ricker.” Id. 21

Likewise, in Velasquez , the Sevent h Circuit considered, among other issues, whether charges stemming from one conspiracy to sell cocaine in Chicago w ere misjoined with a second conspiracy to retaliate against an informant who was initially part of the cocaine conspiracy as part of the “sam e series of acts or

21 Likewise, in Ball , we held that appellant Ball’s assault on a police officer charge was a “sequel” to appellant Jackson’s reckless driving charge. 26 A.3d at 768. We concluded that the “inception” was the police’s high

- speed chase of appellants’ vehicle and “[o]nce the [vehicle’s] tire had blown, the occupants were logically forced to flee by foot, and when the officers closed in on them, the next logical s tep in evasion was to resist arrest.” Id. In other cases such as Bush and Medley , we concluded that joinder was proper when the “sequel” offense s were attempts to obstruct justice or to cover - up the underlying offense. Bush , supra , 516 A.2d at 190; Medl ey , supra , 104 A.3d at 122.37
transactions.” 772 F.2d at 1353. The court re viewed case law pertaining to federal Rule 8 (b) and concluded that including the second conspiracy to retaliate against the informant, “[a]s a conspiracy and its cove r - up are parts of a co mmon plan , ” would pose “no possible problem of misjoinder if the government’s argument had any factual basis . . . .” Id. at 1354 (citation omitted). 22

In con trast, this court concluded in Settles that the two co - defendants ’ charges stemming from the fi rst incident of armed rape were misjoined with their charges relating to the second incident of rape , and accordingly, reversed the defendants’ convictions . 522 A.2d at 349. In Settles , the government indicted the

co - defendants for committing two brutal rapes, the first on April 7, 1984, and the second , ten days later on April 17. Id. at 350. Although the two attacks shared
some of the same violent characteristics, the victims were different and there was

no real overlap of proof between the two offense s. Id. at 351, 353. On appeal, they argued that the April 7 offenses were misjoined with the April 17 offenses. 23

22 The problem in Velasquez , however, was there was no evidence actually linking the retaliation to the cocaine conspiracy. Velasquez , supra , 772 F.2d at 1354.

23 It is important to note that the co

- defendants did “not conte st the fact that they were tried together, nor coul d they ” ; their challenge was simply that there should have been two trials, one for each alleged incident. Settles , supra , 522 A.2d at 352.38 This court agreed, concluding that the April 7 charges “were not ‘based on the same act or transaction or series of acts or transactions’ as the April 17 charges. ” Id. at 352. Specifically, the court concluded that the attack on the second victim on April 17 was “not a necessary continuation of the abduction and rape of [the first victim] ten days before, and in no way did it logically or ne cessarily result from the earlier incident. Rather, the evidence makes clear that the two incidents were entirely unrelated.” Id. at 353. The court further found instructive that the government “presented its evidence at trial separately and distinctly, with no actual overlap of proof between the two offenses,” that the “two incidents were not closely con nected in time or place,” and “ there [was no t ] any real congruence between the two incidents, but only a few superficial similarities.” Id. ; s ee also
D avis , supra , 367 A.2d at 1263 (concluding that the counts were misjoined because “there [was] no logical development of or relationship between the offenses because no crime necessarily led to or caused the subsequent offenses”). 24

24 Similar cases to Settles include Davis and Jackson . In Davis , co defendants Davis and Warren were charged in a forty

- four count indictment alleging that they had raped a dozen women from 1972 to 1973 under similar circumstances. 367 A.2d at 1257

- 58. Some of the charges pertained to both Warren and Davis, while ot her charges were specific to Davis and other unidentified individuals. On appeal, Warren argued that the counts charging Warren and Davis were misjoined with counts charging Davis for having committed crimes with other unidentified individuals. This cour t agreed, concluding that there was “no specific or unitary goal toward which all of the acts alleged in the indictment were directed” and “there [was] no logical development (continued . . .)39
Even if we were to con clude that joinder of the two conspiracies was proper under Rule 8 (b), “severance may still be necessary under Super. Ct. Crim. R

. 14 (“Rule 14”) , which pro tects parties from ‘manifest prejudice as a result of being tried jointly.’” Medley , supra , 104 A. 3d at 122 (citations omitted)

. 25 However, since t here is a “strong presumption” “when two or more defendants are charged with jointly committing a criminal offense . . . that they will be tried together,” Bush , supra , 516 A.2d at 192, a party seeking sever ance has the h eavy burden of

(. . . continued) of or relationship between the offenses because no crime necessarily led to or ca used the subsequent offenses.” Id. at 1263. In Jackson , the three co

- defendants were each indicted for armed robbery of three different liquor stores that occurred within a one

- week period. 623 A.2d at 575. On appeal, we concluded that the three liquor store robberies, each involving a different store and date, did not share a sufficiently “close connection” that met the “series of acts or transactions” test, although we ultimately held that the misjoinder was harmless error. Id. at 581

- 82.

25 Super. Ct. Crim. R. 14 at the time the indictment was returned stated in pertinent part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial togeth er, the Court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Rule 14 was revised in 2016 to conform with the federal rule: “If the joinder of offenses or defendants i n an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Super. Ct. C rim. R. 14 (a).40 showing the “most compelling prejudice.” Medley , supra , 104 A. 3 d at 122

- 23 (citations and internal quotation marks omitted). “Some amount of prejudice will be permitted in favor of judicial economy and the co ncomitant expedit ion of cases,” id. at 123 (citation omitted) , and a “defendant is not entitled to severance merely because the evidence against a [co

- defendant] is more damaging than the evidence against him.” Bush , supra , 516 A.2d at 192 (citation and internal quotation marks omitted). Rather, a defendant is entitled to severance only if his or her “complicity in the overral l criminal venture is de minimis when compared to the evidence against his [co

- defendants].” Id. (citation, internal quotation marks,
and italics o mitted).

3. Analysis of Joinder

Sanquan and Bost argue that the trial court wrongly concluded that the shooting of Howe “logically” led to the South Capitol Street m urders because the

two incidents were standalone crimes, and that the majority of the gov ernment’s proffered evidence was unique to each incident

. They also argue that the South Capitol Street murders only occurred as a result of the attempt on Orlando’s life by Howe’s friends , and that “[a]n uncharged offense committed by individuals other41

t han those named in the indictment cannot serve as the exclusive basis for joining two otherwise unrelated conspiracies in one indictment.”

Ultimately, the issue boils down to whether the relationship between the two conspiracies is more akin to the “unbro ken chain of causation” of events as seen in Scheve or more like the “unrelated” incidents that this court addressed in Settles

. This issue is not necessarily an easy one; many of the facts alleged in the government’s indictment here are similar to the fa cts in cases where we have concluded that joinder was improper. For example, in Settles , we emphasized that the “two incidents were not closely connected in time or place ” because they occurred a week apart from one another. Settles , supra , 522 A.2d at 3 53. Further, the two incidents in Settles “involved different victims.” Jackson , supra note 19 , 623 A.2d at 580.

Yet, there is one critical difference between the facts of this case and the facts involved in our previous cases, such as in Settles , Dav is , and Jackson , in which we concluded that there was misjoinder under Rule 8 (b)

. I n each of those cases, the defendants were alleged to have committed several operationally similar ,42
but ultimately isolated and unrelated crimes. 26 Rule 8 (a) allows for t he joinder of offenses where a single defendant is charged with multiple crimes that are of “the same or similar character or are based on the same act or transaction . . . .” Rule 8 (b), on the other hand, pertains to the joinder of defendants

. The simi larity of the modus operandi for each criminal incident can not fulfill the requirement s of Rule 8 (b), Jackson , supra note 19, 623 A.2d at 580 , and the fact that the same group of individuals may have committed multiple crimes of the “same or similar” natu re , without more, is insufficient for purposes of joining the defendants and offenses under Rule 8 (b)

. In other words, in those misjoinder cases there w as “no logical development of or relationship between the offenses because no crime necessarily led to or caused the subsequent offenses.” Davis , supra , 367 A.2d at 1263.

This case is different. Unlike the indictments in Settles , Davis , or Jackson , the shooting of Howe and the shootings of Nelson and the individuals on South Capitol Street cannot be c onsidered isolated or “entirely unrelated

. ” Settles , supra , 522 A.2d at 353. Rather, the indictment alleges “ an unbroken chain of causation ,” Scheve , supra , 184 F.2d at 696, from the theft of Sanquan’s bracelet, to his

26 In Settles , it was two rapes of two different women that occurred a week apart from one another. 522 A.2d at 353. In Davis , it was twelve rapes that occurred over the course of a year. 367 A.2d at 1263. In Jackson , it was three liquo r store robberies all on different days. 623 A.2d at 581.43
retribution that led to the death o f Howe, to Howe’s friends immediately seeking revenge by shooting Orlando, to Orlando’s plan to kill “as many friends and
associates of Jord an Howe as they possibly could,” and lastly to the execution of his plan. While Howe’s friends attack on Orlando ma y not have been an “inevitable result ,” it is fair to characterize it as a sequel to the Alabama Avenue shooting. Bush , supra , 516 A.2d at 192. The chain of events here is also akin to the second retaliatory conspiracy alleged in Velasquez , which the Sev enth Circuit concluded would have been a permissible basis for joinder. 772 F.2d at 1354.

Further , “[t] here is nothing in the language of the rule itself which requires that a person participate in more than one phase of a ‘series’ of acts to come with in the rule’s coverage.” Bush , supra , 516 A.2d at 191. T he “sequel” conspiracy in
this case took place a week after the underlying offense occurred , rather than mere minutes such as in Scheve , supra , 184 F.2d 695, or Ball , supra , 26 A.3d 764

. However, w hile close spatial and temporal connection between the two offenses
may be a consideration, it is not the only or determinative element. See, e.g. , Medley , supra , 104 A.3d at 120 (joinder is proper where the two assaults involving the same victim transpir ed “a year apart from each other”). 27 Further, there was a

27 Contrary to Sanquan’s and Bost’s argument, joinder of “sequel” offenses is not limited to cover

- ups or flight. But see Medley , supra , 104 A.3d at 122 (continued . . .)44
close connection between the victims of the two conspiracies

— the intended target s of the South Capitol Street murders were the relatives and friends of Howe, who was the victim of the first consp iracy. In addition, the co - conspirators murdered Nelson for the specific purpose of stealing his weapon in order to carry out the drive

- by shooting on South Capitol Street

.

B oth Sanquan and Bost attempt to distinguish this case by arguing that there exis ted an intervening event

— the attempt on Orlando’s life by Howe’s friends

— that broke any chain of causation between the two conspiracies

. Scheve defeats this argument . In that case, like here, the re existed an intervening event between the charge of o perating an illegal gambling house and the subsequent assault

— Ricker’s wife’s attempt to demand her husband’s money ba ck. 184 F.2 d at 696. We have further stated that the subsequent offenses need not “ inevitabl [ y ] result

(. . . continued) (“‘Sequel’ offenses include, inter alia , attempts to obstruct justice, which make appropriate the joint trial of an underlying offense and additional offenses committed by others in an attempt to hide the underlying offense.”). Scheve is a perfect example of a case where the “sequel” crime did n ot constitute an attempt to cover - up or flee from the initial underlying offense. Another such example is Perez v. United States , 968 A.2d 39, 52

- 53 (D.C. 2009), where the government alleged that the defendants attacked a homeless man and then subsequentl y, when individuals passing by attempted to stop the attack, the defendants attacked the passersby s and killed one of them. Id. at 53. We concluded that there was no misjoinder of the assault on the homeless man, the murder, and the attack on the other p assersby s . Id. at 78

- 79.45 [from] the commission of the un derlying crimes” for the offenses to be a “sequel to those crimes.” Bush , supra , 516 A.2d at 192 (emphasis added)

. 28 Howe’s murder may not have “inevitably” led his friends to attempt to kill Orlando, thereby provoking Orlando to organize the So uth Capito l Street murders, but we conclude that Howe’s murder did ultimately “lead” to Orlando’s revenge plot, and accordingly, the latter was a “sequel” to the first crime. Bush , supra , 516 A.2d at 192.

Ultimately, w e conclude that joinder of the two conspiraci es was not improper because the second conspiracy can be considered a “sequel” to the first conspiracy , and therefore part of the same “series of acts or transactions

. ” Super. Ct. Crim. R. 8 (b). Having concluded that joinder was not im proper, we must ne xt

28 Appellants also argue that “[i]t is implicit in the language of Rule 8 (b) that while not every defendant needs to have participated in every illegal act, all defendants must have participated in the series of illegal acts,” a nd that, because no appellant was charged in the attempt on Orlando’s life, the two conspiracies were improperly joined. We disagree with this argument. On this point, we agree with the government that the indictment need not charge every possible offens e to establish that offenses are sequels for purposes of Rule 8 (b) joinder. The government need not have charged Howe’s friends for shooting Orlando in order for the trial court to conclude that, as a factual matter, the shooting of Orlando was the link between the two conspiracies.46 decide whether, nonetheless, appellants’ motions for severance should have been granted. 29

29 Alternatively, the government argues that the two conspiracies constituted a “part of a common scheme or plan” with a “substantial overlap in proof of the various crimes.” Jackson , supra note 19 , 623 A.2d at 579. The gove rnment highlights the overlaps in evidence such as, inter alia , the fact that both conspiracies involved appellants Orlando, Best, and Williams, and turned

government

- collaborator Simms; both involved use of the same AK

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

While the trial court has broad discretion to grant or deny severance under Rule 14, Bailey v. United States , 10 A.3d 637, 642 (D.C. 2010) , “a disparate quantum of evidence” against each co

- defendant “may conceivably require a severance under some circumstances.” Sousa v. United States , 400 A.2d 1036,
104 1 (D.C. 1979) (citations and internal quotation marks omitted). Severance should be gr anted “only where the evidence of a defendant’s complicity in the overall criminal venture is de minimis when compared to the evidence against his [co

- defendants],” Bush , supra , 516 A.2d at 19 3 (italics omitted) , or when failure to do so would “violate a d efendant’s right to due process and a fair trial,” such as when co

- defendants “present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty

. ” Sweet v. United States , 438 A.2d 447, 451 (D.C. 1981) (citation omitted)

.

In this case, Sanquan’s and Bost’s sole argument as to why their respective motions to sever should have been granted is that their individual cases were prejudiced by admission of evid ence of unrelated conduct and offenses; for Sanquan, it is evidence of the second conspiracy , including the South Capitol48 Street murders, for Bost it is evidence of the first conspiracy that led to Howe’s murder. However, it is well

- established that sever ance is not required “just because a significant portion of the government’s trial evidence is applicable only to [his co

- defendants].” Rollerson v. United States , 127 A.3d 1220, 1230 (D.C. 2015) (citation omitted) . Moreover, both Sanquan and Bost were a ctive participants in conspirac ies to commit first

- degree murder, so we cannot say that either of appellant s ’ “complicity in the overall criminal venture is de minimis when compared to the evidence against his [co

- defendants].” Bush , supra , 516 A.2d at 19 3 (italics omitted)

. Specifically, Sanquan was the mastermind behind the first conspiracy that led to Howe ’s murder

— Sanquan gathered the co

- conspirators together for the purpose of finding and killing the person who stole his bracelet. Bost, li kewise, was an active participant in both the South Capitol Street murders and Nelson’s murder; in fact, the evidence showed that he intentionally shot and killed Nelson in an attempt to rob Nelson of his weapon.

Lastly, the evidence presented of both conspiracie s was not “so complex or confusing that the jury could not make individual determinations about the guilt or innocence of each defendant.” Rollerson , supra , 127 A.3d at 1231 (citation and internal quotation marks omitted)

. The record further demonstrates that the trial court made efforts to ensure that the jury was not confused about the charges. For49 example, it reminded the jury on several occasions that Sanquan was not charged with participation in the second conspiracy and Bost was not charged with
pa rticipation in the first conspiracy. The court also instructed the jury that no

statement made after March 22, the date of the first conspiracy, could be used against Sanquan, and no statement made before March 23, the date the second conspiracy began, co uld be used against Bost. Lastly, the court gave a strongly worded curative instruction to the jury after the prosecutor’s rebuttal argument, in which the court stressed to the jury that Sanquan could not be held responsible for the South Capitol Street a nd Nelson murders. Given both Sanquan’s and Bost’s active participation in the first and second conspiracies, respectively, and the trial court’s instructions intended to limit jury confusion, we hold that the trial court did not abuse its discretion when it denied Sanquan’s and Bost’s motions to grant

severance . 30

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

A. Prosecutor’s Statements During Opening and Closing
Appellant Williams (joined by all other appellants on appeal) argues that the trial court erred in denying his mot ions for a mistrial based upon alleged improper

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

1. Opening Statement

In its open ing statement, the prosecution referred to the inscription on the Supreme Court bu ilding, “Equal J ustice U nder L aw,” and emphasized to the jurors their role in enforcing the laws. While the prosecution was discussing this theme, the trial court sua sponte instructed the prosecution, “I [] want you to focus on what the evidence is going to show; this is not a closing argument” and gave the

sa me instruction again in response to an objection by the defense. The prosecution obliged, but at times continued with its theme of asking the jurors to enforce the

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

.51
rule of law and emphasized that “v igilante justice” occurs “when individuals take the law into their own hands.”

During a break in the prosecutor’s opening statement, the trial court responded to all objections raised by the defense. Williams’s counsel went a step further by moving for a mistrial, arguing to the court that the prosecution’s “public policy” theme was improper. The trial court denied Williams’s motion, but acknowledged the merit s of the objections and reminded the prosecutor twice that the court had to interject and ask hi m not to make arguments. The trial court clarified that the references to the inscription on the Supreme Court were improper and cautioned the prosecutor not to make further references.

During a second break in the opening statement , the trial court sust ained defense counsel ’s objection to the prosecution’s statement that its role was to “fairly enforc [ e ] the criminal laws,” and thus, the government would not ignore the retaliatory shooting against Orlando. The trial court stated that it would allow the prosecution, “a little bit of leeway” in describing its role in that way, since the prosecution would later be calling Jordan Howe’s godbrother, Morgan , as a government witness.52
Once the prosecution completed its opening statement , Williams ’s counsel
requ ested a curative instruction from the court to address the “emotional nature” of
some of the prosecution’s opening statement

. The prosecution did not object to the instruction, but state d that it did not believe the instruction was necessary and that if t he court would give one, it requested that the instruction be given after all of
counsel s’ opening statements. The trial court agreed that the instruction would be appropriate due to some emotional reactions in the courtroom during the prosecution’s openi ng statement and the court stated that it would give the instruction after all of the opening statements.

The trial court gave the following instruction to the jury after opening
statements: “L adies and gentlemen, this case may evoke emot ions from witne sses and others. I want to remind you that you are to base the verdicts in this case on the evidenc e and the law as I instruct you [,] not . . . on emotions .”

2. Closing Argument

Additionally, W illiams takes issue with several statements made by the
prosec ution during its initial closing argument , as well as the prosecution’s use of a photograph

. While there were several objections raised by the defense, n one of the53 defense counsel moved for a mistrial during the prosecution’s closing argument

. Williams a rgues that the trial court s hould have sua sponte declared a mistrial due to improper comments made by the prosecution.

Williams claims the following comments by the prosecution during its closing argument were improper

. First, Williams argues that the prosecution’s characterization of certain government witnesses as “heroes” was improper. During its closing , the prosecution stated that the action s of government witness Michael White, who testified that he came forward to police officers with
infor matio n about the South Capitol Street s hooting because he was tired of the violence, was “heartening .” William s’s counsel objected to this characterization , but the trial court did not respond. The prosecution also stated that Antonio Alston, Williams’s cousi n , who came forward and exonerated a juvenile that MPD officers had initially mistakenly identified as the driver of the minivan in the South Capitol Street s hooting was a “hero” and to “bless him for that.” The prosecutor stated further, “[i]f we’re not about truth and we’re not about justice, then we’re not about anything.” Later the prosecution told the jury that Alston was doing “God’s work” upon which defense counsel objected, and the trial court sustained the objection.54 Second, Williams argues the prosecution’s statements that the jury should be “proud” of how MPD conducted its investigation , were improper. The prosecution also asked the jury if they would have had the police stop the investigation after Orlando and Simms had been chased down. Th e defense objected , and the trial court called all defense counsel to the bench to address their objections simultaneously. The trial court ruled that because there were attacks by the defense on the police ’s investigation of the case , the government coul d “comment on the quality of the investigation,” but also acknowledged that the prosecution should not suggest that the jurors should show their appreciation for the police department though their verdicts. The court gave a curative instruction, recommend ed by the defense, that the jury should “determine the facts in [the] case without prejudice, fear, sympathy or favoritism,” but the court also balanced this instruction with a statement that it is proper for the attorneys to comment on the quality of the p olice investigation.

Third, Williams challeng e s the prosecution’s use of the photo graph of one of the victims, William Jones , lying dead at the sce ne of the South Capitol Street

s hooting , during its closing argument. For co ntext, prior to trial, Willia ms’ s counsel objected particularly to the government’s use of this photograph of Jones

. The government responded that the photograph was appropriate to support an55 inference of intent to kill by the appellants who used high power weapons, like the
AK

- 47

. The c ourt ultimately found the photograph ad missible to meet the government’ s burden of proof, but noted it would reconsider “ if suddenly there [was] a whole mass of these same photographs over and over and over a gain.”

D efense counsel challenged the pro secution’s use of the photo graph as an exh ibit in its closing argument , asserting that the photo graph was blown up and was provoking an emotional reaction from the audience. The trial court overruled the objection, finding that although someone in the aud ience left the courtroom because of an emotional response to the photo graph , the prosecution had used the photo graph , not to evoke emotion, but for a “legitimate purpose” of showing the power of the AK

- 47. Williams now essentially makes the same argument on appeal : that the prosecution’s use of the photograph of Jones prejudiced the defense because the prosecution, “intentionally showed that graphic [photograph]

.

. . when other more appropriate ones were available

. . . simply for its

. . . emotional im pact upon the jury.” Finally, Williams states that the prosecution’s
fin al statement to the jury during its closing that “ [t] he families here are not asking you for vengeance. They’ re only asking y ou for justice,” was improper.56
3. Legal Principles

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

case to ena ble the jury to comprehend it.” Bailey v. United States , 831 A.2d 973, 981 (D.C. 2003) ( emphasis added ) ( citation, internal quotation marks, and brackets omitted). Therefore, “an opening statemen t should not be argumentative, nor should it appeal to the passions and sympathies of the jury.” Id. at 981 ( internal citation omitted). However, in closing argument , counsel is permitted to make arguments and commentary “as long as it is in the general nature of argument, and not an outright expression of opinion.” Burgess v. United States , 786 A.2d 561, 571 (D.C. 2001) ( emphasis added) ( citation and internal quotation marks omitted). Both “the scope and extent of [an] opening stat ement,” as well as “[t]he regulation of closing argument” are left to the discretion of the trial judge. Jennings v. United
States , 431 A.2d 552, 560 (D.C. 1981); Anthony v. United States , 935 A.2d 275, 283 (D.C. 2007). Therefore, regarding the issue of an improper statement by counsel during an opening statement or closing argument, “[t]he question of what, if any, remedial action is appropriate is committed to the trial judge’s discretion . . . ‘and we do not lightly overturn [its] discretionary rulings .’” Simmons v. United
States , 940 A.2d 1014, 1024

- 25 (D.C. 2008) ( footnote omitted ).57 When evaluating claims of prosecutorial error , we must first determine whether the challenged statements from th e prosecutor, viewed in context , were , in fact, improper

. Bailey , supra , 831 A.2d at 981. If the statements were improper and the claim was properly preserved at trial, a reversal is only warranted if the statements caused “substantial prejudice

. ” Freeman v. United States , 689 A.2d 575, 584 (D.C. 1997). “Th e applicable test for prejudice is whether we can say, ‘with fair assurance . . . that the judgment was not substantially swayed by the
error.’” Anthony , supra , 935 A.2d at 284 (citations omitted); see Kotteakos v. United States , 328 U.S. 750, 765 (1946) (announcing the harmless error standard). The four factors to be considered when determining prejudice are “‘1) the gravity of the impropriety, 2) its relationship to the issue of guilt, 3) the effect of any corrective action by the trial judge, and 4) th e strength of the government’s case.’” Fearwell v. United States , 886 A.2d 95, 102 (D .C. 2005) (citations omitted); see also Bailey , supra , 831 A.2d at 981.

4. Analysis

The statements made by the prosecution during its opening statement and closing argume nt can be addressed in tandem. Williams argues that this court must consider the cumulative effects of the prosecutor’s statements, instead of reviewing58
the statements in isolation. The government argues that the prosecution’s references to the inscripti on at the Supreme Court were merel y a statement of the government’ s theory of the case, and thus were not improper. The government also argues that the prosecution’s statements during closing argument were all permissible forms of argument.

a. Statements i n Opening Statement

To begin, the prosecution’s thematic discussion of “Equal J ustice Under
L aw , ” and its comments that the defendants had take n the law into their own hands, did not appear to cross the line of permissible opening statements, as the

comme nts were not argumentative. See Bailey , supra , 831 A.2d at 981. However, even if the comments were improper, in the context of this case, the prosecution’s elaboration on this theme was not so grave as to warrant a mistrial. The statements came at the b eginning of a long line of opening statements by counsel, in a three

month long trial, and were only statements enunciating a theory of the case, not statements specifically “related to the evidence in the case.” Id. at 985. Williams makes no specific ar gument on appeal as to how the statements may have affected the outcome of the trial. See id. ( “ A ppellant has not persuaded us that [the prosecutor’s improper statements] made any real difference in the outcome of the59 proceedings

. ”). Moreover , the trial judge was attentive to defense counsel ’ s concerns and objections , and even interjected sua sponte to instruct the prosecution “to focus on what the evidence is going to show” and not to give a closing argument. See id. at 986; see also Wright v. United St ates , 508 A.2d 915, 921 (D.C. 1986) (“[T]he court may curtail an opening statement that becomes

ar gumentative or inflammatory.”) (citation omitted)

.

Accordingly, t he trial court’s decision not to grant Williams’s motion for a mistrial due to the governmen t’s opening statement was proper , especially because “a mistrial is a severe remedy . . . one to be taken only in circumstances manifesting a necessity therefor.” Trotter v. United States , 121 A.3d 40, 53 (D.C. 2015) ( brackets, footnote, and internal quot ation marks omitted). It was well within the trial court’s discretion to decide, alternatively, to give a curative instruction to the jury to “base [their] verdicts

. . . on the evidence and . . . not

. . . on emotions ” and defense counsel all agreed to t his instruction. See id. at 54 (“The trial court was in a position to evaluate the impact of the prosecutor ’ s [] comments and the likely efficacy of a curative instruction.”) ( footnote and internal quotations omitted).60
b. Statements and Use of a Photograph in Closing Argument
Similarly, the statements made by the prosecution during its closing argument did not warrant a mistrial. First, the prosecution’s references to the quality of the police investigation and its statements that the jury should be “pro ud” of MPD officers were not improper when considered in context

. The prosecutor is allowed to respond to defense counsel ’s attacks regarding the quality of the police investigation during trial because “it is in the general nature of argument, and not an ourtright expression of opinion

. ” See Burgess , supra , 786 A.2d at 571 ( quoting Irick v. United States , 565 A.2d 26, 36 (D.C. 1989) ). For example, in Bailey , a prosecutor glorified a police investigation and his “heroism” in its o pening statement and thi s court held that , while the statements “came close” to the limits of permissible comment, they “did not cross the line, nor . . . warrant a mistrial.” Bailey , supra , 831 A.2d at 983. T he prosecutor’s references in this case

to government witness Alston as a “hero” and to government witness White’s actions as “heartening” are similar

. Especially in light of the latitude afforded to counsel during closing argument, s uch statements were not im permissible characterization s in response to defense counsel’s c ross - examinations of those witnesses . Additionally, the statements did not urge the jurors to place themselves

“ in the position of the victim ,” nor did the statements rise to the level of an appeal61 “to the jury’s emotions.” See Tyree v. United States , 94 2 A.2d 629, 643 (D.C. 2008) (“ This court has repeatedly cautioned that it is improper for the prosecutor to seek to place the jurors in the position of the victim .”)

.

Next, w hile th e prosecutor’s final comment during closing argument that
“the families h ere are not asking you for vengeance. They’ re only asking you for justice,” may have appealed to the sympathy of the j urors, the prosecution did not cross the line by asking the jurors to “send a message to the defendant[s]” or to the community with their verdicts, which is “something we have repeatedly condemned.” Bailey, supra , 831 A.2d at 984 (internal quotation marks omitted)

. Again , Williams has not alleged any specific prejudice that flowed from this final statement in the context of a three

- month long trial and lengthy closing arguments by all counsel. See id. at 985 (finding that the prosecutor’s improper comments were not severely prejudicial, as they were made in a “ long closing argument, after a long trial, and they were not relat ed to the evi dence in the case”).

Finally, Williams’s challenge to the prosecutor’s use of the photograph of William Jones during its closing argument is unavailing

. The photograph was admitted into evidence, and as the trial court noted, the photograph was used by t he prosecutor to show the high power of the AK

- 47 to infer appellants’ intent to kill

.62
See Jones v. United States , 27 A.3d 1130, 1142 (D.C. 2011) (“The admission of photographs is within the sound discretion of the trial judge.” ) ( citations and internal q uotation marks omitted); see also Leasure v. United States , 458 A.2d 726, 728 n.2 (D.C. 1983) (holding that the trial court did not abuse its discretion in admitting photographs of the murder victim, as they had probative value in confirming the identity o f the victim, the location of the offense, the cause of death, and appellants’ malice and p remeditation ” ) ( internal citations omitted)

.

B. Technical Issues W ith Husher

Orlando claims that he is entitled to a new trial because, throughout trial, the

courtr oom “ husher ” failed to work properly and exposed the jury to prejudicial and

extra

- judicial information

. He acknowledges , however, that his defense counsel did not raise the husher issue during trial , and that his counsel never made any assertions before the trial court that certain statements may have been overheard by the jurors during bench conferences

. Nevertheless, Orlando requests that this court presume prejudice (1) due to the husher not working properl y on at least two occasions within a two

- week period of the trial, and (2) because the judge did not conduct a hearing to determine if the jurors overheard any statements during bench conferences.63
1. Additional Factual Background

On February 16, 2012, five days prior to the start of trial, the trial c ourt explained to the jurors, “[t]he [purpose] of the bench conferences is so you won’ t hear what w e’ re talking about. So please don ’ t try to read lips whenever we’ re using them.” On the first day of trial on February 21, during a bench conference, the t rial court indicated to one of the courtroom technicians , “E verybody’s able to hear me when I’m talking with the hushers.” Afterwards, the court called all counsel to the bench and stated, “I think we have the hu shers amped up now, so maybe it’ ll work,” a nd then asked for those in the courtroom to let her know if they could hear the court when the husher was on. No one notified the court that they could hear the bench conferences that day

.

However, a pproximately two weeks later, o n March 1, during a ben ch conference, a juror notified the court that the juror could “ almost hear [the bench] conversations sometimes . . . .” (emphasis added)

. The court responded , “T hank you for letting me know” an d told someone in the courtroom “the jurors a re able to hear when the husher’ s on, so we need to get that adjusted at our break if we could.” The juror clarified that, “I t’ s just some tones to the conversations. We’ re64 trying not to [hear] ,” and the court responded, “R ight. But I appreciate you te lling me that. So thank you. It’ s important to hav e private conversations here.”

On March 7 , the trial court stated, presumably to a courtroom technician,
“A pparently the husher is still a bit of a problem. It is not being loud enough. If you could, during a break, adjust it, I would appreciate that .” The court advised counsel that they “need [ed] to talk very quietly if [they] are doing someth ing at the bench because of it.” During bench conferences that day, no party suggested any further problems with the husher. On March 14, the court asked jurors if the husher was now effective and a juror responded that , “T here jus t needs to be one more speaker.” The trial court then stated, “ Okay. We’ ll try to talk more quietly. If you can just raise your hand if you’ re he aring us. Thank you. But d o make an effort not to listen.” The record does not show that any juror thereafter raised a hand to indicate a further problem. During a bench conference later that day, counsel and the court repeatedly reminded each other to keep their voices down. No counsel ever objected or made any requests to the court about the husher

.

On appeal, Orlando argues for the first time that the jurors were likely able to hear two bench conferences in particular. First is a bench conference in which the trial court admonished Orlando’s trial counsel for “showboating” before the65 jury

. Second is a bench conference during which Orlando’s counsel sought assurance from the prosecution that it would not elicit any testimony from government witness Ronald Ray that Orlando may have shot at Ray or may have been involved with other persons shooti ng at Ray.

The first bench conference occurred on March 1 , the same day that the juror first alerted the court to a problem with the husher. During this conf erence, the trial court admonished Orlando’s counsel for doing “a big raising eyebrow thing in front of the jury” after the court’s ru lings, and told counsel, “I don’ t want you to be showboating in front of this jury by raising your eyebrows[.]” The judge pointed out to Orla ndo’s counsel, “there’ s been twice in this trial now where after I ruled, you made a big show” and that she was “only using [the] opportunity to say [that] at the bench because [ she didn’t] want to repeat it.”

The second bench conferen ce occurred later that same day , immediately prior to government witness Ray’s testimony, where Orlando’s counsel stated to the court and the prosecutor, “I know that there’ s some reference in some of the documents that . . . Ray was of the thought that

. . . Orlan do . . . had something to do with someone shooting at him. I just wanted to make sure that [the prosecution was not] seeking to elicit any of those things.” The prosecutor responded, “I am66 not going to try to elicit those” and further stated tha t he did not intend “to get into anything [regarding Ray’s] thoughts, as [Ray] said in the grand jury, that perhaps Orlando

. . . might have shot at [ him ].”

2. Legal Principles

The trial court “has an obligation to investigate a plausible claim that the jur y has been exposed to extrinsic evidence.” Garrett v. United States , 20 A.3d 745, 748 (D.C. 2011). Accordingly, “when it is alleged that a jury has been exposed to extrinsic evidence, the trial court should inquire as to the nature of the evidence and ho w the jury came to be exposed to it.” Id. In circumstances in which “the impartiality of a juror has been plausibly called into question, it is the responsibility of the trial judge to hold a hearing to determine whether the allegation of bias has merit. ” Medrano

- Quiroz v. United States , 705 A.2d 642, 649 (D.C. 1997). However, “[a] trial judge [] does not need to engage in an inquiry when an allegation of [] reliance on extrinsic evidence is speculative. ” Garrett , supra , 20 A.3d at 749.

Orlando cites to Garrett and ( Donald ) Young for support. Garrett involved a juror note in which the jury asked the court if it could consider a statement a67 witness had muttered while on the stand, which was not in response to questioning by counsel. Id. at 747. Over the defense’s objection, the trial court sent back a note stating “yes,” without any inquiry into details of what the jury was referring to by “muttered utterance” because the court did not want to violate the jury’s deliberation process. Id. at 747. Thi s court held that the trial court had abused its discretion because after receiving the jury note, the court had “an obligation to investigate” and to “inquire as to the nature of the [extrinsic] evidence and how the jury came to be exposed to it.” Id. at 748

- 49.

In ( Donald ) Young , the trial court repeatedly criticized Young’s defense attorney throughout trial, often during the defense counsel’s cross

- examination of government witnesses. ( Donald ) Young v. United States , 346 F.2d 793, 795 (D.C. Cir. 196 5). F ollowing the trial court’s “severe criticism” of the defense attorney at bench conferences, the defense attorney notified the court the following day that a “number of bystanders” had informed him that they overheard “all of [those] bench
conferences , ” and the defense moved for a mistrial. Id . The court did not grant the defense’s request for a mistria l and simply stated in response, “[t]here will be no more bench conferences.” Id. at 796. The D.C. Circuit held that the “court ’ s continual interven tion” during the defense’s cross

- examinations may have precluded the defense counsel from “devot[ing] his best talents to the defense of68
his client.” Id. at 794

- 95 (internal quotation marks and citation omitted). The court further held that the trial cou rt should have held a hearing to determine “whether counsel could produce witnesses to substanti ate his allegations,” and that it was not confident that the jury did not hear the court’s remarks. Id. at 796.

3. Analysis

This case is distinguishable from both Garrett and ( Donald ) Young because , here, neither Orlando’s trial counsel nor other d efense counsel ever asserted to the
trial court that the jury overhear d certain statements made during bench conferences. Still, Orlando assert s on appeal that “juro rs could overhear extremely prejudicial comments

. ” This claim is speculative without any record support that the jury actually overheard statements from either of the bench conferences that Orlando discusses . In fact, the record indicates that the trial court was very

at tentive to the husher issue , and repeatedly sought to ensure that the husher was working properly and to mitigate any concern . Specifically, t he court instructed the jury not to try to overhear the bench conferences, informed the courtroo m technician at least twice that the husher needed to be fixed, reminded counsel to speak quietly at bench conferences, and asked the jurors to notify the court if they could hear the bench conferences. Thus, the trial court carefully ensure d that the69 jur y was not exposed to “extrinsic evide nce” from the bench, and there was no evidence that the jury, in fact, was exposed to or overheard any of the comments
made during the bench conference s . Furthermore, the defense counsel never made any allegations or r aised any concerns to the trial court that the jury may have overheard certain conversations at the bench. In such an instance where the trial court acted carefully in light of the issue with the husher, and given the lack of evidence that the jury actual ly overheard anything, t he trial court did not have a duty to sua sponte inquire as to whether the jurors overheard the bench conferences that Orl ando references here on appeal. Accordingly, we reject Orlando’s claim that the issue with the husher require s reversal of his convictions and a new trial.

C. Statements Against Penal Interest

Best argues that his video confession to his mother and his verbal confession to Salazar were both improperly admitted at trial as statements against his penal
interest

. Best claims that in admitting the statements, the trial court improperly applied prongs one and three under the Laumer standard , which governs the admission of statements against penal interest

. See Laumer v. United States , 40970 A.2d 190 (D.C. 1979) (en b anc). 31 Specifically, with regard to Best’s video confession to his mother, Best argues that the trial court improperly applied prong
one of the Laumer standard because the court failed to identify a particular statement made by Best, and instead only base d its ruling on non

- verbal responses from Best to Ms. Best, which did not rise to the level of “unambiguous assent” to
Ms. Best’s statements. He also contends that it is unclear whether his non

- verbal and verbal communications amounted to a confession, as opposed to a variety of other “plausible explanations” for his conduct. Best also argues that his gestures to his mother were untrustworthy as statements against his penal interest under prong
three of Laumer because the gestures were subject to a non

- in criminating interpretation

— i.e. , that he had dropped his head and cried to his mother, not out of an admission of guilt, but instead because he was upset that his mother had taken the side of the police.

With respect to Best’s verbal confession to Sala zar, Best argues that under
the first prong of the Laumer standard, the trial court improperly concluded that Best made the reported statements to Salazar. Best also argues that his alleged

31 The standard “requires that the trial judge undertake a three

- step inquiry to ascertain (1) whether the decl arant, in fact, made a statement ; (2) whether the declarant is unavailable; and (3) whether corroborating circumstances clearly indicate the trustworthiness of the statement. ” Laumer , supra , 409 A.2d at 199.71 statements to Salazar were untrustworthy under prong three of the Laumer standard because the statements were con tradicted by evidence at trial.

1. Additional Factual Background

a. Admission of Video

Prior to trial, the court considered whether the video of Best’s non

- verbal interactions with his mother should be admitted as a confession. The trial court ultimately concluded that Best made a statement against penal interest to his mother, stating that Best was not “simply silen [t] ” in the video, but instead he and his mother were communicating with one another non - verbally

. The court further stated, “There are nods[,] . . . . [Best’s] weeping, his asking to be hugged, the whole set of communications[.]” The court also noted that the video shows Ms.
Best’s own assessment of her son’s communication to her, which she underst ood as Best saying that he had been involved in the shootings. The court considered the defense’s assertions that Ms. Best had been misled by leading questions when she testified to the grand jury that her son had admitted his involvement to her.
However , the court found that Ms. Best’s statements to the grand ju ry corroborated the videotape.72 The trial court also stressed that by allowing admission of the video, the jury would not be “required to find that [Best] mad e a statement against interest,” but

n onetheless the jury could reasonably make that finding if it chose to do so. The

court stated to both the government and defense, “I too have watched this video many, many, many times. And there is this . . . very tiny

— and, again, it can be
debated

— b ut it is a tiny, what looks like a nod in agreement. And it’ s part of the communication that went on there. ”

b. Admission of Salazar’s Statements

Prior to trial and after hearing arguments from the prosecution and from Best’s defense counsel regarding the admissibility of Best ’ s verbal confession to Salazar, the trial court determined that Best’s statements to Salazar were admissible as statements against penal interest. The court acknowledged that there were inconsistencies between Salazar ’ s testimony a nd other evidence in the case, 32

32 The court was presented with evidence that: ( 1) Best never returned to Salazar’s apartment at the time she claimed that he made his confession to her, (2) Salazar had a motive to testify against Best in order to protect her boyfriend Simms, (3) Salazar admitted to smoking marijuana during the time of the alleged confession, (4) Salazar initially told police that Best never made any statements to her regarding the shootings, and (5) there was a discrepancy in her statement because she said that Best told her M.C. (the juvenile who was mistakenly (continued . . .)73
but found that those inconsistencies were “comparable to many inconsistent
statements we’ ve seen throughout this trial of people who are fearful of getting involved . . . and who say one thing and then later say something el se . ” The court noted that Salazar’s account was reliable because Best and Salazar were close friends, so Salazar’s motive to fabricate his confession was not strong. The court also noted that Salazar’s account was corroborated by other evidence, includin g the video surveillance showing Best with the bag that Salazar stated that he had retrieved from her apartment and specific details that Best told Salazar regarding the shooting, such as the fact that a girl had been shot in the head.

2. Legal Principles

The rationale behind the statement against penal interest exception to the hearsay rule is that “reasonable people usually do not make statements against their penal interest unless the statements are true, [and thus,] the statements are reliable . . . i nsofar as they g enuinely increase the declarant’ s exposure to criminal sanction.” Thomas v. United States , 978 A.2d 1211, 1227 (D.C. 2009) (footnote omitted)

. “[T]o ascertain whether a proffered statement is admissible under the (. . . continued) arrest ed) was innocent, when at the time, the fact that M.C. had been arrest ed was not known to the public.74 penal interest exception, the trial court must undertake a three

- step factual analysis. ” Id. at 1227

- 28. The court must determine : “ (1) whether the declarant, in fact, made the reported statement; (2) whether the declarant is unavailable to testify; and (3) whether corroborating circumstances clearly indicate the trustworthiness of the statement.” Id. at 1 2 28 (footnotes and internal quotation marks omitted)

.

Best argues that the trial court erred in finding that prongs one and three were met with regard to his video confession t o Ms. Best and his alleged
confession to Salazar

. In determining the first factor, whether the declarant in fact made the reported statement, the court looks to “the veracity of the witness who repeats the declaration.” Laumer , supra , 409 A.2d at 199. I n determining the third factor, the court must ascertain whether there are “corroborating circumstances that clearly indicate the trustworthiness of the statement,” by looking at factors such as “(1) the time of the declaration and the party to whom the d eclaration was made; (2) the existence of corroborating evidence in the case; [ and ] (3) the extent to which the declaration is really against the declarant’ s penal interest.” Id. at 200 (citations omitted)

.75
The trial court’ s conclusions that the video o f Best’s confession to his mother and S alazar’s statements regarding Best’s confession were admissible as statements against penal interest are legal questions, which this court reviews de

novo. Thomas , supra , 978 A.2d at 1225 (quoting Laumer , supra , 409 A.2d at 203 )

.

“ However, [ this court] will not disturb the factual findin gs supporting the [trial]
court’ s conclusion unless they are clearly erroneous.” Id. (footnote omitted).

3. Analysis

a. Best’s Video Confession

With regard to Best’s video confessio n to his mother, after reviewing the videotape, we conclude that the trial court properly admitted the video under the statement against penal interest hearsay exception. Whether Best nodded and thereby, in fact, made a statement is “essentially [a] factu al determination” to which we give deference to the trial court, unless clearly erroneous. Walker v. United States , 167 A.3d 1191, 1209 (D.C. 2017) (“The clearly erroneous standard precludes the appellate court from setting aside a trial court’s finding o f fact unless the judgment is plainly wrong or without evidence to support it.”) (footnotes and internal quotation marks omitted). In making this factual determination, “the trial76 court’s focus is not on the truth of the declaration, but on the veracity o f the witness who repeats the declaration.” McCorkle v. United States , 100 A.3d 116, 120 (D.C. 2014) (citation omitted). I n finding that Best’s non

- verbal response s to his mother qualified as statement s against his penal interest, the trial court made

su fficient finding s that prong one of the Laumer stan dard was satisfied because the
court noted that Best appeared to give a “tiny” nod in response to his mother’s question about whether he had hurt anyone

. The court also concluded that Ms. Best understood Best to be confessing to her, which was supported by her response to Best in the video, asking him , “What for? Cause he shot Orlando?” The court further noted that Best’s responses such as crying, lowering his head again, and asking his mother for a hug were further non

- verbal and verbal communications that qualified as statements against penal interest. Best’s argument on appeal that
his non

- verbal responses to his mother could not constitute statements f ails because Federal Rule of Evidence 801 (a) , wh ich this court has adopted, clearly defines
“statement” as an “ oral assertion, written assertion, or nonverbal conduct , if the person intended it as an assertion. ” Fed. R . Evid. 801 (a) (emphasis added) ; see also Little v. United States , 613 A.2d 880, 882 (D.C. 1992) (adopting Federal Rule of Evidence 801 (a) ’s definition of “statement”).77
The trial court also made sufficient findings that prong three , whether Best’s statement bore indicia of trustworthiness, was met

. In determining whether there
are suff icient corroborating circumstances that indicate the reliability of the statement, “relevant considerations include: (1) the timing of the declaration; (2) to whom the statement was made; (3) the existence of corroborating evidence in the case; and (4) th e extent to which the declaration is really against the declarant’s interest.” Walker , supra , 167 A.3d at 1209 (footnote and internal quotation marks omitted). This does not require “that the information within the statement be clearly corroborated” but “only that there be corroborating circumstances that clearly indicate the trustworthiness of the statement itself.” Ingram v. United
States , 885 A.2d 257, 266 (D.C. 2005) (emphasis and citation omitted). “The corroboration requirement of this rule is a p reliminary determination as to the statement’s admissibility, not an ultimate determination about the statement’s truth.” Id. (citation omitted)

.

In making its findings as to prong three, the trial court noted that Best’s statements were corroborated bot h by Ms. Best’s contemporaneous understanding that Best was confessing to her, and by Ms. Best’s testimony to the grand jury that Best had admitted involvement to her while they were in the interrogation room. On this record, those findings are not clearl y erroneous. We have previously noted78
that “the existence of a close relationship between the declarant and the witness also may provide indications of trustworthiness.” Laumer , supra , 409 A.2d at 201. The statements here were made to Best’s mother

— wh o Best presumably trusted

— shortly after his arrest. See Anthony v. DeWitt , 295 F.3d 554, 564 (6th Cir. 2002) (“[S]tatements made to a family member or perceived ally, in confidence, have previously been deemed sufficiently trustworthy.”). Moreover, Bes t’s involvement in the shooting was significantly corroborated by both eyewitness testimony and DNA evidence implicating him. See , e.g. , Walker , supra , 167 A.3d
at 1210

- 11 (corroborating circumstances clearly indicated the trustworthiness of
the statement where th e statement was made two months after the shooting, to his then

- girlfriend whom he presumably trusted, in private, and where the testimony of eyewitnesses and surveillance video supported his presence at the scene); Terry v. United States , 114 A.3 d 608, 628

- 29 (D.C. 2015) ( determining that sufficient corroborating circumstances justified admission of the defendant’s statements under the Laumer test because the statements were made to a neighbor, whom he had a close relationship with, the statements were made days after the shooting, and eyewitness testimony and DNA evidence clearly inculpated the defendant).

Best asserts, however, that “as a matter of law,” the statements were not truly against his penal interest as his actions in the video could be construed in a79 way other than admitting guilt

— such as remorse that his mother had “turned her back” on him and sided with the police

— and therefore, one of the factors weighs against a finding of trustworthiness. Relying on Andrews v. United States , he avers that “if there are two possible interpretations of [a] statement . . . , one of which would subject [the declarant] to criminal liability while the other would not, the necessary indicia of trustworthiness [as per Laumer ’s third prong] are absen t.” 981 A.2d 571 , 576 (D.C. 2009) . There, we agreed with the trial court’s decision to exclude a prop osed statement

- against

- interest because there were two possible meanings of the statement: one of which was incriminating and the other innocuous. In re aching that conclusion, we noted that there was “ no evidence in the record to corroborate the statement that [appellants] tried to ‘set up’ all three (or any officers).” Id. (emphasis added). We encounter no such hurdle in this

case.

Upon review of the videotape, it would not be clearly erroneous to conclude that Best was non

- verbally communicating with his mother , and thereby confessing his involvement in the shooting. Such an interpretation is sufficiently corroborated by other compelling evidence de tailing Best’s involvement, as well as Best’s own mother’s contemporaneous understanding of him to be confessing to her. Throughout their interaction, Ms. Best responded to Best’s non

- verbal80 communication with additional questions tailored to what she bel ieved the initial response had been. When asked whether he had hurt anyone, Ms. Best inquired “What for? Cause he shot Orlando?” after understanding Best’s “tiny” nod to be confirmatory. She further solidified this understanding through her testimony to the grand jury in which she attested that Best had admitted involvement in the shooting to her while they were in the interrogation room. What is more, the entire exchange was captured on video. Thus, it was not clearly erroneous for the trial

court to find there was sufficient evidence to corroborate Best’s statements to his mother.

Accordingly, the record supports the trial court’s findings that Best’s statements to his mother were admissible under the declaration against penal interest exception to the hearsay rule. 33

33 The court also found that Best’s non

- verbal responses to his mother were admissible as adoptive admissions, a ruling which Best likewise challenges on appeal. We agree with the trial court’s decision. “A defendant may make an admission by adopting or acquiescing in the statement of another.” Blackson v. United States , 979 A.2d 1, 6 (D.C. 2009) (citation and internal quotation marks omitted). The adop tion need not be explicit, but may be inferred by the surrounding circumstances of the conversation. Id. at 7. For the same reasons that we conclude the trial court did not err in admitting the videotape under prong one of the Laumer standard, we conclud e that Best’s non

- verbal responses were admissible as adoptive admissions as evidence against Best based on the context and surrounding circumstances of the conversation.81
b. Salazar’s Testimony of Best’s Confession

Similarly, there was no error in the trial court’s finding that Best’s confession to Salazar was admissible. With regard to prong one of the Laumer standard, t he court found that S alazar’s st atement was reliable because she and
Best were close friends, and thus, it was not likely that she would fabricate his confession to her. Furthermore, even if Salazar was motivated to protect Simms, as the trial court noted, Salazar’s testimony on Best’s confession actually implicated Simms, because she testified that Best told her that Simms shot the AK

47. In addition, Best’s confession to Salazar occurred on the same night of the shooting or very soon thereafter, making the statements more reliable

. A lthough Salazar first indicated to police that Best did not make any statements to her about the shooting, as the trial court noted, Salazar’s inconsistencies were comparable to many inconsistencies from other witnesses at trial who were fearful of getting involved in the case.

Under prong three of the Laumer standard, the trial court properly acknowledged that Salazar’s account of Best’s confession to her was corroborated by details surrounding the shooting, such as evidence that Orlando drove, that Sim ms shot the AK

- 47, and that a girl had been shot in the head. Best ’ s main82 challenges to admission of her statement under prong three are his assertions that he could not have told Salazar that the juvenile was falsely arrested because that information was not public at the time, and in addition, he could not have confessed to Salazar on the night of the shooting because surveillance video from his girlfriend Proctor ’ s apartment show ed that he entered Proctor’s apartment that night and never left to visit S alazar

. However, both of these challenges to the video were successfully presented during cross - examination by Best’s defense counsel

. In light of the trial court’s findings that Best’s statements were corroborated by many other details of the shooting, this inconsistent evidence was not a basis for the trial court to exclude Salazar’s testimony regarding Best’s statements to her. Accordingly, the trial court properly concluded that prongs one and three of the Laumer standard were met for Best’s verbal c onfession to Salazar. 34

34 Salazar’s testimony about Best’s confession would likewise be admissible as a n ad mission of a party opponent as evidence against Best. See, e.g. , Chaabi v. United States , 544 A.2d 1247, 1248 (D.C. 1988) (“The basis for allowing an admission into evidence is the ability of the party to rebut the testimony, thereby avoiding the danger p revented by the hearsay rule, that is, the inability to cross

examine an out

- of

- court assertion.”) (citation and internal quotation marks omitted).83
D. Withdrawal F rom Conspiracy Jury Instruction

Appellant Williams argues that the trial court erred when it refused to give the withdrawal from conspiracy jury instruction. He claims that his action in leaving the van right befor e the others committed the South Capitol Street shooting constituted withdrawal from that conspiracy.

1. Additional Factual Background

Immediately prior to the South Capitol Street s hooting, Williams was in the car with Orlando, Simms, Best , and Bost as they prepared to shoot Howe’s associates

. Simms testified at trial that Williams told the men, “Y’all about to go

commence. Y’ all can let me out right here [,]” before exiting the car. Due to Simms’s testimony regarding this statement by Williams, at the end of trial, Williams’s counsel requested that the judge give the jury an instruction on the withdrawal from a conspiracy defense. Williams’s counsel requested that the following instruction be read to the jury: A person who may have entered into an agr eement to commit a crime

— a conspiracy

— may subsequently withdraw from that agreement. If he does that, he may no longer be held responsible for actions subsequently taken by his former coconspirators. To withdraw from such an agreement a person must u nequivocally indicate84
to his co

- conspirators that he no longer will participate in the agreed activity.
The trial court declined to give that instruction, finding that no “ reasonable j uror, based on Nathaniel Simms’s testimony about what Lamar Williams s aid in the minivan . . . could find that there was a withdrawal by [] Williams from the conspiracy. ”

2. Legal Principles

“[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. ” McCrae v. United States , 980 A.2d 1082, 1086 (D.C. 2009) (citation omitted)

.

“ Thus, the proper inquiry is whether there is evidence from either the prosecution or defense that fairly raises the defense .” Id. (citation omitted)

. “However, where there is no factual or legal basis for a requested instruction, it is not error for the trial court to refuse to instruct the jury on that defense.” Id. (citation omitted).

“[T]o withdraw from a conspiracy one must take affirmative a ction to disavow or defeat the purpose, or definite, decisive and positive steps which indicate a ful l and complete disassociation.” ( Mary ) Harris v. United States , 37785 A.2d 34, 38 (D.C. 1977). “Passive nonparticipation in the continuing scheme is

not en ough to sever the meeting of minds that constitutes the conspiracy.” Smith , supra , 568 U.S. at 112

- 13

.

Our decision in ( Mary ) Harris v. United States , which discusses withdrawal from a conspiracy, is instructive on this issue. 377 A.2d at 38

. In ( Mary ) Harris , after her daughter was raped, Harris agreed , along with her daughter, her daughter’s son , and other persons , to “find and deal forcibly” with the rapist. Id

. at 36. In planning the retaliation, Harris helped to identify the suspected rapist and provided a firearm to her daughter’s son, who told her he would “pistol

- whip” the assailant. Id. When a group gathered at the suspected rapist’s home, Harris left and went to a porch, and when a person answered the door at the suspected
assailant’s home , he was shot several times with a pistol. Id. Harris was convicted, amongst other charges, of conspiracy to commit an assault with a dangerous weapon for her role in the incidents as an aider and abettor. Id. at 36. On appeal, she argued that there wa s insufficient evidence to prove that she was an aider and abettor, in part because she had withdrawn from the conspiracy before the shooting occurred. Id. at 38. We emphasized that in order to withdraw from a conspiracy, “one must take affirmative actio n to disavow or defeat the purpose, or definite, decisive and positive steps which indicate a full and complete86
disassociation.” Id

. We further stated that “[w]hile there was testimony indicating that [Harris] left the scene before the shooting occurred, [that testimony] was in conflict with other evidence” and that furthermore, the evidence was “insufficient to establish withdrawal as a matter of law.” Id

.

3. Analysis

In this case, Williams ’s request to be let out of the car did not constitute an

“ affi rmative action t o disavow or defeat the purpose” of the conspiracy. L ike the appellant in ( Mary ) Harris , Williams played a key role in the conspiracy; he helped provide the weapons for the South Capitol Street s hooting

. Williams’s actions in provi ding we apons for the shooting demonstrate d that he was willing to assist with the commission of the conspiracy

. Furthermore, Williams failed to “disavow ” or “defeat the purpose” of the conspiracy, or com pletely “disassociate” himself from the conspiracy by leavi ng the car. L eaving the scene before a crime

occurs i s in sufficient to demonstrat e withdrawal from a conspiracy. See ( Mary )
Harris , supra , 377 A.2d at 38 ( concluding that the fact that appellant merely left the scene before the shooting occurred was “ ins ufficient to establish withdrawal as a matter of law

. . . ”).87
E. Other Issues

Appellants raise several additional arguments that arose during trial that we address summarily. First, Williams argues that the trial court should have granted his mistrial mot ions due to the government’s presentation of “emotional testimony” regarding the South Capitol Street s hooting, which Williams claims was only presented in order to appeal to the jurors’ emotions. Williams points to the following testimony that he believe s was especially inflammatory: (1) the testimony of Officer Neftia Turner, one of the first responding officers to the South Capitol Street s hooting, who gave a detailed account of the crime scene and later cried while testifying; (2) the testimony of Tie rra Brown, who was the girlfriend of

one of the victims, Jones, and who was also present and shot in the leg during the South Capitol Street s hooting; and (3) the testimony of four mothers of victims at the South Capitol Street s hooting. Williams also ref ers to the testimony of Ra’Shauna Brown and the government’s decision to play recordings of a 911 call that included her screams. We conclude that the trial court did not abuse its discretion in denying Williams’s mistrial motions. Certain cases, “partic ularly those involving tragic death or injury, have an inherent emotional impact,” Dixon v. United States , 565 A.2d 72, 76 (D.C. 1989), and in such cases, the government is “not required to deliver a dispassionate presentation of sterile facts.” Chatmon v

.88
United States , 801 A.2d 92, 100 (D.C. 2002). However, in the event of an improper comment that is potentially prejudicial, “an effectively worded curative instruction rendered in a timely manner may serve to rectify the error.” Hazel v. United States , 319 A.2d 136, 138 (D.C. 1974). While we question whether the government needed to present testimony from four mothers of the victims, it is evident that throughout trial, the trial court was attentive to the defense’s concerns about the emotional nature o f the case and repeatedly instructed the jury to decide the case based on the evidence and the law, and not to be swayed by emotion. There is no reason to believe that the jurors did not follow these instructions. See Metts v. United States , 877 A.2d 113 , 118 (D.C. 2005) (stating that the court would not presume that the jury did not follow the trial court’s curative instruction).

Second, Williams argues that the trial court violated his Sixth Amendment right by unduly restricting his ability to cross

- e xamine Simms in regards to his jealous behavior toward s the women that he had dated. Specifically, Williams sought to demonstrate at trial that Simms was motivated to falsely implicate Williams in the two conspiracies because Simms was jealous that Willia ms previously had relations with one of Simms’s girlfriends, Salazar. Williams further sought to elicit testimony from Simms that Simms was jealous that his other girlfriend, Young, might be dating other men during Simms’s incarceration. The89
trial court restricted Williams’s cross

- examination regarding Simms’s jealousy toward Young, and we discern no error in the trial court’s limitations. While “[b]ias or testimonial motivation is always a proper subject of cross

- examination,” Rose v. United States , 879 A.2d 986, 995 (D.C. 2005) (citation and internal quotation marks omitted) , the trial court still retains “wide latitude

. . . to impose
reasonable limits on such cross

- examination based on concerns about, among other things, harassment, prejudice, confusi on of the issues, the witness’ safety, or interrogation that is repetit ive or only marginally relevant, ” Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986). Here, the trial court’s limitation of Williams’s

cross - examination did not preclude Williams from e liciting testimony of Simms’s potential bias against him. Williams was permitted to elicit: (1) evidence that Williams had relations with Salazar prior to Simms’s relationship with her, (2) testimony from Simms and Salazar regarding a prior occasion i n w hich Simms confronted Williams for inappropriately touching Salazar, and (3) testimony from Simms and Young that Simms was jealous of Young dating other men. It was within the trial court’s discretion to conclude that any further extrinsic evidence regard ing the relationshop between Simms and Young, and specific instances in which Simms had shown jealousy toward Young, were cumulative with regard to the relationship and level of jealousy that Simms had with Salazar. See Delaware , supra, 475 U.S. at 679.90

T hird, Best argues that the trial court abused its discretion when it precluded
him from calling a witness to impeach Simms regarding his testimony that he never fired a TEC

- 9, a semi

- automatic pistol, in 2007. Best argues that the witness’s testimony was material and would have contradicted Simms’s earlier testimony that he was “not familiar with guns,” and would have provided support for Best’s argument that it was actually Simms who fired the AK

- 47 during the Alabama Avenue s hooting, while Best remained in the car. The trial court did not err in excluding extrinsic evidence that Simms had allegedly fired a TEC

- 9 in 2007. As the trial court noted, the 2007 incident “was not material” to Best’s trial; it occured three years prior to the Alabama Avenue s ho oting and involved a different weapon. Furthermore, there was no testimony or evidence adduced at trial to support Best’s assertion that it was actually Simms who had fired the AK

47 on Alabama Avenue. See Washington v. United States , 49 9 A.2d 95, 101 (D .C. 1985) (“I t is well settled that a party may not present extrinsic evidence to impeach a witness on collateral issues

. ”).

IV. Jury Note

Bost (joined by all appellants on appeal) argue s that the trial court abused its discretion in its response to a juror ’s note sent during jury deliberations.91 Essentially, Bost claims that the trial court should have granted defense counsel’ s motion s for a mistrial after the juror’s note exhibited signs of coercion , and that , alternatively, the court should have at least given the jury an anti

- deadlock instruction.

A. Additional Factual Background

Jury deliberations began on April 26, 2012. On May 3, one j uror sent the trial judge the following note: After several days of deliberations we have come to a point of disagreeme nt where I feel pressure from many members of the group to change my mind regarding my vote on particular counts on which we disagree. The emotions are very intense and I do not want other people’s emotions or feelings to affect my decision. I want to kn ow if it’s possible to be recused at this point. I do not want to make a decision based on pressure from the group. The trial court informed the parties of the note and was “very much open to suggestions or changes” to its proposed response. The court explained that its inclination was to give a “very bland response” that “emphasize[d] civility, respect, listening to each other or expressing views and then stressing that . . . we don’t excuse people just because there is disagreement.” Defense counsel for Sanquan argued that, because the note used the pronoun “I,” he was “concerned” th at this92 juror was “individually . . . feeling pressure from members of the group to change her mind,” and that the “only cure for this would be a mistrial at this stage.” The trial court “reject[ed] that [request] completely,” explaining that “there are some people who don’t like conflict at all,” and that the “note is totally consistent with someone . . . feeling pressure to change her view . . . but there is no suggesti on that someone is . . . doing anything improper.”

The court then engaged in an extended colloquy with the parties, where both defense counsel and the government requested some form of an anti

- deadlock instruction. The court, however, was “determined no t to give an anti

- deadlock instruction now” because it was “very premature to even be thinking along those lines.” The court also rejected the government’s request to take a partial verdict. After soliciting recommendations from the parties, the court ga ve the following response in open court to the jury the next day on May 4: First, I want to compliment all of you on carefully following my earlier instruction that whenever you send a note you not mention how you are divided on an issue. I have no idea o n what lines you are divided and what the issues may be that are dividing them. Second, let me stress that you are our jury. We do not excuse jurors based on some disagreeing with others. Any verdict in this case must be the considered view of each juro r after an impartial, rational[,] and fair examination of the evidence in accordance with my93 instructions about the law and not improperly influenced by emotions. Third, I want to stress the importance of jurors treating each other with civility and mutua l respect in an environment in which every juror is able to express his or her views. With that, I’m going to ask you to return and deliberate. Thank you very much. The jury rendered its verdict on May 7, convicting Sanquan, Orlando, Best, and
Bost on all charges, but only convicting Williams of charges stemmi ng from the second conspiracy.

B. Legal Principles

“ [A] mistrial is subject to the broad discretion of the trial court and our review is deferential.” Van Dyke v. United States , 27 A.3d 1114, 11 22 (D.C. 2011) (citations and internal quotation marks omitted). “To determine the coercive effect of the trial court’s instructions to the jury during deliberations, we examine ‘all the circumstances, ’ . . . and we do so ‘from the juror’s perspective.’” Id. (citations omitted). “Evaluation of jury coercion requires this court to inquire into: (1) the inherent coercive potential before the trial court; and (2) the actions of the trial judge in order to determine whether these actions exacerbated, allevi ated or were94 neutral with respect to coercive potential.” Leake v. United States , 77 A.3d 971, 975 (D.C. 2013) (citation and internal quotation marks omitted).

C. Potential for Coercion

Turning first to the “inherent coercive potential” of the situation re vealed by the juror’s note, we conclude that the potential for coercion was low. As we explained in Leake , in determining the potential for coercion: [W] e look to a series of indicators, including: (1) the extent of isolation of a dissenting juror; (2) w hether the identity of a dissenting juror is revealed in open court; (3) whether the exact division of the jury’s verdict is disclosed; (4) whether the judge is aware of the identity of the dissenting juror; (5) whether the dissenting juror knows of the ju dge’s awareness; (6) whether other jurors feel ‘bound’ by a verdict they announced; and (7) whether the trial court issues an ‘anti

- deadlock’ instruction

. 77 A.3d at 976 (citing ( Robert ) Harris v. United States , 622 A.2d 697, 705 (D.C. 1993)).

We appl y each factor to the situation here. Factor one, the extent of the juror’s isolation , weighs in favor of low potential coercion. T he note came from one juror who indicated that the juror felt pressure from some of the other jurors95 regarding “particular c ounts” in which they disagree d

. The juror did not say that the juror felt pressure from the entire remainder of the jury , or that they disagreed
on all counts

. See i d. (less coercion when the “precise numerical division of the jury” has not been revealed ) (citation omitted). Factor two , the identity of the juror , was not revealed in open court as the note was passed to the trial court during jury deliberations, rather than during the announcement of the verdict, making it less likely that the juror felt undue pressure from the rest of the jury

. Factor three, the exact division of the jury , was also unknown as the court addressed the jury regarding the note without referencing any particular juror, omitting the possibility that they would feel “bound” by any decision that they had made up to that point during deliberations. Factor s four and five weigh in favor of coercive potential , because the court knew the juror’s identity

. Factor s six and seven weigh in favor of low coercive potential

. No verdict wa s announced at the time the court instructed the jury, and the court expressly refused to give an anti

deadlock instruction.

Lastly, as the trial court observed, the juror’s note does not reveal any impropriety on the part of the other juror s , only that d eliberations were spirited , which is natural given this high

- profile murder case involving five co

- defendant s . “The persuasive impetus inherent in the requirement of unanimity does not96 constitute coercion; such an impetus exists any time twelve persons ar e sent into a jury room to deliberate.” ( Robert ) Harris , supra , 622 A.2d at 701 (citation omitted)

.

D. Trial Court’s Actions

Next, i n determining whether the trial court’s actions “exacerbated, alleviated or were neutral with respect to coercive potenti al,” Leake , supra , 77 A.3d at 977 (citation and internal quotation marks omitted), we consider t he following factors: [W]e look to (1) whether the judge made any affirmative efforts to dispel the coercive potential, (2) whether the judge’s actions took a middle ground, (3) whether the judge’s actions exacerbated the problem by effectively contributing to the potential for jury coercion, and (4) whether the judge’s reaction independently created a coer cive atmosphere for the jury. Id. Given the low coerc ive potential of the juror’s note, it was incumbent on the trial court to give a neutral, even “bland,” instruction. The court followed the rule in this case, so we cannot say the court’s answer was an abuse of its broad discretion. Cf. Gray v. United St ates , 79 A.3d 326, 336

- 37 (D.C. 2013) (concluding that where the jury’s note exhibited confusion, the trial court’s general statements failed to bring adequate clarity)

. T he court’s response to the juror’s97 note, in open court, was for the jury to resume d eliberations, to recognize that heated discussions during deliberations were natural, but also to emphasize the need for civility and mutual respect. The trial court’s jury instr u ction was not coercive

.

In fact, the instruction reduced any coercive pot ential by reminding jurors to respect each other’s viewpoints during deliberations and to focus on the evidence presented. Contrary to Bost’s claim, an anti

- deadlock instruction admonishing the jury not to “surrender [their] honest conviction[s]” would ha ve been premature as there was no indication that the jury was deadlocked at the time of the note. We have consistently cautioned that an anti

- deadlock instruction should not “be used prematurely or without evident cause,” and that an anti

- deadlock instru ction is more of an “ultimate judicial attempt, not a preliminary attempt, to secure a verdict.” Barbett v. United States , 54 A.3d 1241, 1245 (D.C. 2012) (citation and internal quotation marks omitted) . For the reasons stated , the trial court did not
abu se its discretion in refusing to grant a mistrial or to issue an anti

- deadlock instruction

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

The trial court sentenced Best to life imprisonment without release. D uring the pendency of his direct appeal , Best filed a D.C. Code § 23

- 110 (2012 Repl.) motion for a new trial alleging ineffective assistance of trial counsel. Specifically,
Best alleged that his trial counsel, Michael O’Keefe, Esq., 35 provided constitutionally ineffective assistance by failing to file a motion to suppress Best’s videotaped interrogation by MPD detectives

. The videotape included a conversation he had with his mother, Laverne Best, in which he may have communicated, non

- verbally, that he was culpable. Best claimed that the lead de tective, Detective Anthony Patterson, violated his Miranda rights by asking him questions about the shootings after he had invoked his right to counsel. He also
claimed in his motion that Ms. Best’s subsequent conversation with him was the “functional equ ivalent” of police interrogation.

Accordingly, Best’s motion argued that Mr. O’Keefe should have filed a motion to suppress the video and Ms. Best’s derivative grand jury testimony

35 Michael O’Keefe was appointed as an Associate Judge on the Superior Court of the District of Columbia in September 2013, following the conclusion of his representation of Best. For purposes of this opinion, we will refer to Judge O’Keefe as “Mr. O’Keefe.”99 regarding her conversation with Best, and that his failure to do so was not harmless , because a moti on to suppress w ould have b e en meritorious. T he trial

court convened a hearing on the ineffective assistance of counsel claim and, upon hearing the evidence, denied Best’s motion on the basis that (1) Mr. O’Keefe made a strateg ic decision not to file a motion to suppress, (2) in any event , Ms. Best’s conversation with Best was not the functional equivalent of interrogation and therefore not subject to the strictures of Miranda , and, (3) even if the challenged evidence should hav e been excluded, the additional evidence against Best was overwhelming and therefore he suffered no prejudice from its admission. Best filed a collateral appeal of the trial court’s denial of his motion, which we have consolidated with his direct appeal a nd the direct appeals of his co

- defendants.

A. Additional Factual Background

The footage of the police’s interrogation of Best is available to us on appeal. On April 26, 2010, the United States Marshals Service arrested Best and brought
him before MPD De tectives Oliver Garvey and Anthony Patterson. The detectives read him his rights and presented him with a PD

- 47 card, whereupon Best invoked his right to silence and to an attorney. In response, Detective Garvey explained to Best that they could no longe r speak to him about the case. Detective Patterson100 asked Best whether he knew what he was being charged with, and Best replied that, “The warrant said murder. ” Detective Garvey told Best that he was charged with five counts of first

- degree murder, to whi ch Best asked, “How you get five counts of murder?” Because Best had already invoked his rights, however, the detectives told him that they could not discuss the case with him any further, but stated that, “In a few minutes if you feel comfortable enough, you can always ask if you want to talk to us. But right now, we can’t talk to you because you already said you don’t want to talk to us. ” The detectives then left Best by himself in the inte rrogation room for about thirty minutes.

Detective Patterson then returned to ask Best if he needed to use the restroom. Best said he did and the detective es corted him to the restroom

. This
fifteen

- minute restroom break was not recorded on camera , and it was during this break that Best claim ed in his § 23

- 110 mo tion that Detective Patterson sought to reinitiate a conversation with Best about the case , in violation of Miranda . Best alleged that , as he was washing his hands, Detective Patterson approached him and encouraged him to talk about the shootings , telling him something to the effect of, “Come on man, let’s talk. I’m the head detective on the Alabama Avenue shooting. I’ll tell you something, then you tell me something.” Best also claims that Detective Patterson told him that he knew Best fired the shotgu n on Alabama101 Avenue, but that he did not intend to hurt any one , and that Simms was in police custody and was already talking.

The police recording captured Best and Detective Patterson as they re

entered the interrogation room

. W hen Detective Patterson turned to leave, Best stopped him and told the detective that he was willing to talk to him, and that it could be record ed . Detective Patterson, assisted by Detective Susan Blue, then re

informed Best of his Miranda rights , and Best waived his rights on the record . The detectives interrogated Best for about three hours on his role in the shootings, but Best repeatedly denied the accusations and did not give any inculpating statements.

The detectives then tried a different approach

. After Best vocaliz ed his concern that his family had “turned their back” on him , Detective Blue confronted
Best regarding rumors that he was suicidal. Detective Blue asked, “Would it help you any if we got your mother down here so you could talk to her?” Best responded, “ I do want to talk to my mom.” Detective Blue replied: Okay. Because I don’t want your mother to, you know, the last thing she pretty much remember her child saying is he want to kill himself and you know you go away, and God forbid, whatever because I’m telling you until your heart feel better, you ain’t going to be better. Until you put your heart in a better place you not going to be better. Until you clear your conscience, and you know what? It is what it is, God forgive me, whatever you got to say to102 make yourself get over that hurdle, until you do it, you’re not going to feel better. You can sit here and listen to us all day long . We can tell you the best advice we know, but until you do the right thing yourself, you’re not going to get no better , and I will go ahead and call your mother personally. Does she know you got locked up? You don’t even know. Okay. I’ll call her myself and tell her that you’re here and see what we can do to get her down here so you get a chance to see her, all right? But I want you to really consider doing the right thing. Best provided Detective Blue with his mother’s number and the Detective called Ms. Best and told Best that she was on her way. Prior to Ms. Best’s arrival, Best admitted that he had suicidal th oughts, and stated that his mother was the “one person I know will never leave my side.”

Ms. Best arrived and had a brief one

- on - one conversation with Best. She asked if he was there “when they did that,” to which Best whispered something to Ms. Best and directed his mother’s attention to the camera in the room. Detective Blue then re

- entered the room and asked Best “to help your mother understand why you’re not doing the right thing.” Ms. Best told Detective Blue that she did not care “what you put out there about him,” but also told Best not to cover for his “so called” friends and to “clear” himself, stating, “If you didn’t do nothing, be a man about it.” Ms. Best also told Best that the police ha d been searching through her home. Detective Blue, likewise, told Best to cut his friends loose and to worry about the “people who worry about you.”103
Detective Blue then gave Ms. Best and Best another two minutes of one

- on one time. When Detective Blue left the room, Ms. Best told Best , “ She’s right,
Je ff, I

— you didn’t

— you didn’t.” She also asked, “You didn’t hurt no one, hmm, hmm, did you? Huh? So that’s true out there? Huh?” Best, in response to this question, gestured with his head. Ms. Best then asked whether it was because of Orlando’s sho oting, at which point Best cried and asked for a hug. They hugged and said they loved each other . Ms. Best then said, “[S]ee what Orlando, see what he got you into” and Best said, “Mom. Mom.” After Ms. Best left, the detectives continued to interview B est, but he continued to deny involvement in the shootings. Accordingly, the only inculpating statement from the police video is the head movement by Best in response to Ms. Best’s question as to whether what the police wer e saying was “true out there.”

B. § 23
- 110 Hearing

The trial court conducted a § 23

- 110 hearing on August 20, 24, and 25, 2015, and ruled on September 1 , 2015

. Best’s sole witness was himself

— he testified that Detective Patterson engaged him in conversation about the shootings
durin g his bathroom break after he had already invoked his right to silence and counsel. According to Best, Detective Patterson told him that he would “tell me104 something, that he wanted me to tell him something in return and then he told me that I played a par t [in] the Alabama Avenue shooting.” In response, Best told the detective that he was willing to speak to him. As for his conversation with his mother, Best admitted that he wanted to speak to his mother, but stated that he believed the reason Detective Blue brought his mother to the room was, “To get me to do the right thing. Basically [to] get me to confess or corroborate.” Best also testified that he felt “upset, confused,

— a lot of things” after Ms. Best appeared to agree with Detective Blue’s asse rtion that he was involved in the shooting, stating it felt , “Like my mother turned her back on me.”

As for Mr. O’Keefe’s knowledge of Best’s alleged conversation with Detective Patterson during the bathroom break , Best explained that he did not speak t o Mr. O’Keefe about the incident prior to trial, and that he only informed him that it had happened “after [he] got [his] mother[’s] grand jury statements.” He knew that he “had to come up . . . with something to try to get this video out.” Specifically, Best admitted that, with the help of a “jailhouse lawyer,” Thomas Jones, they drafted a motion alleging that Detective Patterson had engaged in a conversation with Best after he had already invoked his rights, and that this was a violation of Miranda . Be st then provided the motion to Mr. O’Ke efe, but Mr. O’Keefe did not present any arguments before the court regarding the motion.105 The government called Mr. O’Keefe to the stand. He testified that, once the government was permitted to use Ms. Best’s grand jury testimony, which the government claimed showed that Best had confessed to Ms. Best, he thought the best course of action was to show the video to the jury himself, “so they could see that [Best was not confessing], and that her testimony is, in fact, misleading.” Further, he explained that he read Best’s proposed motion to suppress, but was immediately suspicious of it because it was “written in the third person . . . it talked about ‘your client.’” Mr. O’Keefe also found it “very strange” that he “ hadn’t heard this fact before” after spending a lot of time with Best (“I went to the jail many, many times.”) and talking about “every aspect” of his case. And that , “now for the first time, almost two years after first getting involved in the case

. . . there is this conversation with Detective Patterson out in the hallway that was different than what was represented originally when we went over the video.” Mr. O’Keefe explained that “sometimes people in trial start to change their stories when they get nervous” and “they start to make things up.” Accordingly, Mr. O’Keefe did not credit the prepared motion and di d not believe that he “could ethically advance this argument that, in fact, something happened out there that” he did not believe actually happ ened. The government also called Detective Patterson, who denied initiating any substantive conversation with Best during the bathroom break. He did admit, however, that he was not “100 percent” sure that absolutely no106 conversation took place, but mainta ined that “whatever happened on the way back was initiated by [Best] .”

The trial court issued its oral findings on September 1 and denied Best’s ineffective assistance claim , stating “it is clear to [the court] that Mr. O’Keefe’s
decision not to file a motion to suppress based on Miranda , was not deficient under Strickland .” Accordingly, the trial court concluded that it “need not resolve” the question of whether Detective Patterson attempted to re

- initiate a conversation with Best after he had invoked his rights, thereby violating his Miranda rights. The court emphasized, however, that, “The fact that I have not resolved this issue does not indicate that I believe a Miranda violation occurred, I am just not deciding that issue.” The court credited Mr. O’Keefe’s testimony that Best had initially told him that he had waived his rights in the hopes of getting information from the police, and that Best only mention ed the bathroom encounter for the first time two years after Mr. O’Keefe started his represen tation. The court also
credited Mr. O’Keefe ’s testimony that he found the motion dubious because of the lateness of the representation and because the note was written in the third person. The court therefore found it “reasonable for Mr. O’Keefe to decid e against filing a motion to suppress based on a Miranda violation that he believed was fabricated and that someone reasonably could believe was fabricated.” The court further107 observed that “Mr. O’Keefe provided excellent representation to [Best] througho ut this trial” and that “[t]his is not a situation where counsel did not know the law and as a consequence did not file a motion to suppress based on Miranda and Edwards .” 36

Alternatively, the trial court concluded that the “meeting between [Best] and
hi s mother was not custodial interrogation for purposes of Miranda .” “Only state action implicates a defendant’s rights under the Fifth Amendment.” Lastly, even assuming deficient performance by Mr. O’Keefe , the court found that “[t]he case against Mr. Bes t was so compelling that he would have been convicted without his mother’s testimony about his statements and without the video tape of his meeting with her.” The court pointed to the testimony of Simms, whom the court described as “one of the best witnes ses [ the court ] has observed in over 20 years on the bench. His testimony in and of itself was powerful. He did not exaggerate. He did not minimize his own role.” The court further noted that Simms’s testimony was corroborated by other evidence, includ ing, inter alia , a video of Best unsuccessfully attempting to rent a minivan on the night of the South Capitol Street

36 In Edwards v. Arizona , 451 U.S. 477, 485

- 86 (1981), the Supreme Court held that a defendant who invok es his Miranda right to counsel cannot be reinterrogated without the presence of counsel unless the defendant initiate s the subsequent conversation.108 murders, Best’s DNA being found on the jacket tossed by one of the men who escaped from the minivan after the shooting on South Capi tol St reet, Sal a zar’s testimony that Best had confessed to her of his involvement, and “very incriminating” telephone records establishing the relationships between the various appellants and suspicious calls made right before and right after the South Capitol
S treet shootings. The court also noted the weakness of Best’s misidentification argument , in light of the considerable incriminating evidence presented at trial

. This collateral appeal followed.

C. Applicable Legal Principles

Our standard of review of a tr ial court’s denial of an appellant’s ineffective
assistance of trial counsel claim is well established

. “We accept the judge’s factual findings unless they lack evidentiary support, but we review his or her legal conclusions de novo.” Derrington v. Unite d States , 681 A.2d 1125, 1132 (D.C. 1996) (citation, internal quotation marks, brackets, and italics omitted). Under the

two

- part Strickland analysis, “[t]o prevail on his ineffecti ve assistance of counsel claim . . . , appellant must demonstrate [both] t hat his counsel’s performance was constitutionally deficient, and that the deficient performance prejudiced his109
defense.” Otts v. United States , 952 A.2d 156, 164 (D.C. 2007) (citing Strickland v. Washington , 466 U.S. 668, 687 (1984)).

First, [t]o esta blish constitutionally deficient performance, appellant must show that counsel’s “ representation fell below an objective standard of reasonableness.” Id. (quoting Strickland , supra , 466 U.S. at 688 ) (internal
qu o tation marks omitted)

. The proper measure of an attorney’s performance is “reasonableness under prevailing professional norms.” Cosio v. United States , 927 A.2d 1106, 1123 (D.C. 2007) (en banc) (quoting Strickland , supra , 466 U.S. at
688 ). Trial counsel is “strongly presumed to have rendered ade quate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (quoting Strickland , supra , 466 U.S. at 690). There are “countless ways to provide effective assistance in any given case,” so “judicial scrutin y of counsel’s performance must be highly deferential .” Id. (emphasis added) (quoting Strickland , supra , 466 U.S. at 689). Further, “we must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the ti me of counsel’s conduct.” Otts , supra , 952 A.2d 164 (citation and internal quotation marks omitted). Of course, reasonable performance “demands appropriate investigation and preparation by counsel.” Cosio , supra , 927 A.2d at
1123 (citation omitted)

. Ac cordingly, it would be “objectively unreasonable for110 defense counsel to make an uninformed decision about an important matter without justification for doing so.” Id

.

Second, even if appellant establishes that trial counsel’s performance was deficient, he must also prove that his case was prejudiced by the deficient performance. Otts , supra , 952 A.2d at 164. “To establish prejudice, appellant must show that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. (quoting Strickland , supra , 466 U.S. at 694).

D. Analysis

Here, Best claims that counsel, Mr. O’Keefe, rendered ineffective assistance when he failed to file a motion to suppress during the middle of trial i n response to Best’s new revelation that he was approached by Detective Patterson during the bathroom break. “To succeed on an ineffectiveness claim grounded on counsel’s failure to file a suppression motion, it is the movant’s burden to show that a [Fift h] Amendment claim would have been successful.” ( Ronald ) Young v. United States , 56 A.3d 1184, 1193 (D.C. 2012) (citations omitted)

. “[W] e must give deference to the trial court’s findings of fact as to the circumstances surrounding the appellant’s111

encou nter with the police and uphold them unless they are clearly erroneous.” Id. at 1194 (citation and internal quotation marks omitted).

The trial court in this case did not make a factual finding on whether Detective Patterson actually initiated a conversa tion with Best off

- camera during
the bathroom break after Best had invoked his right to silence and counsel, in violation of Miranda

. Best argues , however, that this court has the authority, for the first time on appeal, to make that factual finding becau se the only evidence presented points to the existence of such a conversation. However, “i t is not our function to decide issues of fact.” Evans v. United States , 122 A.3d 876, 884 (D.C. 2015). Further, contrary to Best’s claim, there was competing evid ence on whether the Detective initiated a conversation with Best ; Best claim ed it happened, but Detective Patterson claimed that, at most, Best would have initiated the conversation.

Regardless, although the trial court declined to make this factual fin ding, the court at the very least agreed that it was reasonable for Mr. O’Keefe not to have believed Best’s claim during the middle of trial that Detective Patterson sought to reinitiate a conversation after Best had invoked his Miranda rights. We conclud e that the trial court did not err in concluding that Mr. O’Keefe’s decision not to file112 a motion to suppress during the middle of trial did not fall “below an objective standard of reasonableness.” Otts , supra , 952 A.2d at 164 (quoting Strickland , supra , 466 U.S. at 688).

Preliminarily, we conclude that a motion to suppress the video and Ms. Best’s grand jury testimony during the middle of trial would have been considered waived by the trial court . “Objections to the admission of evidence are waived wh en they are not raised in a pretrial motion to suppress the evidence, ‘unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion

. ’ ” Simmons v. United States , 999 A.2d 898, 902 (D.C. 2010) (emphasis added) (cita tion omitted) . Here, by Best’s own admission during the § 23

- 110 hearing, he did not inform Mr. O’Keefe of the bathroom conversation
until after trial had commenced, even though he obviously was “aware of the grounds for the motion.” Id. (citation and i nternal quotation marks omitted). Accordingly, a motion to suppress during the middle of the trial based on Best’s new claim would have been considered waived and unsuccessful. Again, “it is the movant’s burden to show that a [Fifth] Amendment claim woul d have been successful.” ( Ronald ) Young , supra , 56 A.3d at 1193.113 Even setting aside the procedural bar, however, Best cannot demonstrate that Mr. O’Keefe’s refusal to file a motion to suppress was unreasonable. This was not a case where counsel made “an uninformed decision about an important matter without justification for doing so.” Cosio , supra , 927 A.2d at 1123. On the contrary, Mr. O’Keefe explained in great detail why he declined to go forward with
Best’s new Miranda claim. He explained that he had worked with Best for about two years up to that point, and that Best had never once mentioned a bathroom conversation with Detective Patterson. Further, the “motion” that Best presented to Mr. O’Keefe was written in the third person and was of dubious nature. Mr. O’Keefe also explained that it was common for defendants to become nervous as the trial grows closer and to make up new allegations. In addition, no police recording show s the existence of this off

- camera conversation. Taken together, it

wa s r easonable for Mr. O’Keefe, a seasoned attorney who had worked with Best for two years up to that point, to have believed that the allegations within Best’s pro se motion were not true. See Tibbs v. United States , 628 A.2d 638, 641 (D.C. 1993) (“We hold . . . that as a matter of law an attorney is not ineffective for refusing to present testimony which the attorney knows to be false. ”).

We also agree with the trial court that a motion to suppress the video and Ms. Best’s grand jury testimony would hav e been futile

. T he only potentially114 inculpating gesture by Best (the head nod after being questioned by his mother)

w as not the product of custodial interrogation , and therefore not subject to the
strictures of Miranda

. “Only ‘state action’ implicates a defendant’s rights under the Fifth Amendment.” Graham v. United States , 950 A.2d 717, 732 (D.C. 2008). Accordingly, “the Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than offici al
concern.” Id. (citations and internal quotation marks omitted). Further, it does not matter that the police knew there was a “possibility” that an outside source, such as a parent or spouse, may lead a suspect to incriminate oneself. Id. at 733. “Of ficers do not interrogate a suspect simply by hoping that he will incriminate himself.” Id. (citations and internal quotation marks omitted).

Here, the only po tentially incriminating gesture by Best emanated from his

two

- minute one - on - one conversation with his mother, who m he wanted to come see him at the police station. He also knew that the conversation with his mother was not private and was being recorded, as evidenced by his gestures to his mother earlier in the video . Accordingly, any inculpatin g gestures he made in response to his mother’s questioning about whether he was involved came from “moral and psychological pressures” outside of police action, and thus not subject to Fifth115 Amendment protections. Id. at 732. Whether Detective Blue may h ave hoped or even wished that speaking with his mother would make Best confess is irrelevant. 37

Further, contrary to Best’s claim, Ms. Best cannot be considered a state actor at the time she spoke with Best. “This court has held that, in determini ng whether the conduct of third parties is attributable to the police for purposes of Miranda , we must focus on how a reasonable person in the suspect’s position would perceive the situation.” Broom v. United States , 118 A.3d 207, 215 (D.C. 2015) (citatio n omitted) . Here, a reasonable person could not have believed that Ms. Best was working for the police. First, Best stated “I do want to talk to my mom” and gave the police Ms. Best’s number, so that she could come down to the police station. Second, Ms . Best was acting “on her own initiative” in her questioning of Best. Id. Third, Best only made the arguably inculpating gestures when he was alone with his mother, away from the police or any alleged state pressure. Best then cried and hugged his mothe r , and they said they loved each other . Taken together, none of

37 This case is similar to Graham , where the defendant, after invoking his right to counsel, spoke private ly to his mother and after a forty

- five minute conversation, confessed to murder. 950 A.2d at 725

- 26.116
these circumstances can lead us to conclude that his mother can be considered a state actor intentionally placed in the interrogation room to coerce a confession. 38

VI. Conclusion

Based on the abovementioned reasons, the judgments of conviction by the Superior Court are

Affirmed.

38 Because we conclud e on three individual bases that the motion to suppress would have failed, we need not consider the prejudice prong of Strickland

. We do note, howev er, that the evidence against Be st was substantial as recited by the trial court in its findings.