Fortune v. United States

59 A.3d 949, 2013 WL 173226, 2013 D.C. App. LEXIS 11
CourtDistrict of Columbia Court of Appeals
DecidedJanuary 17, 2013
DocketNo. 10-CF-316
StatusPublished
Cited by32 cases

This text of 59 A.3d 949 (Fortune v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fortune v. United States, 59 A.3d 949, 2013 WL 173226, 2013 D.C. App. LEXIS 11 (D.C. 2013).

Opinion

Washington, Chief Judge:

Appellant Tyrone Fortune was convicted of first-degree burglary, attempted robbery, and unlawfully possessing a firearm after a felony conviction. On appeal, he claims that: (1) the trial court committed reversible error by holding a bench trial on the felon-in-possession charge without obtaining a valid waiver of appellant’s right to a jury trial; (2) the trial court erred by failing to poll the jury regarding appellant’s first-degree burglary and attempted robbery convictions; (3) the trial court violated appellant’s constitutional right to be present during all stages of trial by failing to ensure appellant’s presence during the portions of voir dire that were conducted at the bench; and (4) the evidence was insufficient to support his attempted robbery conviction. For the reasons stated below, we affirm in part and reverse in part.

I.

Erica Bernard and the appellant, Tyrone Fortune, are cousins. In December 2008, Ms. Bernard was living, in an apartment with her wife, Lillian Holland, along with Ms. Holland’s children and grandchildren. Fifteen-year-old Janon Washington lived in the apartment upstairs.1

On December 29, 2008, Mr. Fortune arrived at the Bernard-Holland apartment and asked Ms. Holland whether Ms. Bernard was home. Ms. Holland replied that Ms. Bernard was not home and that she did not know where Ms. Bernard was, but Mr. Fortune did not believe her. He showed Ms. Holland a gun and told her to tell Ms. Bernard that he was looking for her, and that he was “not playing.”

The next day, December 30, 2008, as Ms. Holland was cooking in her kitchen, [953]*953Janon Washington entered the apartment, followed by Mr. Fortune. Ms. Holland told Mr. • Fortune to leave. Mr. Fortune asked where Ms. Bernard was and Ms. Holland again told him to leave. After asking again where Ms. Bernard was, Mr. Fortune walked down the hall to Ms. Bernard’s bedroom. Ms. Holland and Ms. Washington followed him.

When Mr. Fortune entered the bedroom, Ms. Bernard was sitting on her bed. Mr. Fortune was “jittery” and high on PCP. In a calm, low, voice, he stated, “What you thought, I was f_in’ playing?” and “So you not going to give me no f_in’ money?” Ms. Bernard was afraid of Mr. Fortune, whom she described as having a “real strong demeanor” and who had previously threatened to hit her. While Ms. Holland watched from the doorway, Ms. Bernard repeatedly asked Mr. Fortune, “[H]ow the ‘f_’ did [you] get in my house?” Ms. Holland told Mr. Fortune to leave because he was disrespecting her house. Mr. Fortune refused to leave, said something, drew the same gun that he had shown to Ms. Holland the previous day, and pointed it at Ms. Bernard.

Ms. Bernard walked to the end of her bed. When Mr. Fortune “went to cock the gun,” Ms. Bernard dove at him and the two began to fight. At that point, Ms. Holland took her granddaughter upstairs to Ms. Washington’s apartment and left her there. Ms. Holland returned to the bedroom three minutes later, and the fight was still underway. At some point, Mr. Fortune dropped his gun. Ms. Bernard grabbed an aluminum bat and swung it at Mr. Fortune; she was uncertain whether she hit him but thought that she hit the wall. Ms. Holland saw Ms. Bernard hit Mr. Fortune’s head; the blow did not stun Mr. Fortune or cause him to bleed. Mr. Fortune threw Ms. Bernard up against a wall and then flipped Ms. Bernard’s mattress, stating “that he knew there was some money in there.”

Ms. Holland entered the room carrying a telephone. Mr. Fortune asked “who the f_she was calling?” Ms. Holland stated that she was going to call the police. Mr. Fortune then stated “I’ll be back; I’ll be back,” and left the apartment.2 Ms. Bernard and Ms. Holland returned to the bedroom, moved the mattress, and located Mr. Fortune’s gun in front of the dresser. Ms. Holland told Ms. Bernard not to touch the gun. However, Ms. Bernard unsuccessfully tried to “uncock” the gun so that it would not discharge and then put it on the -dresser. She then called the police and reported that: (1) her cousin had come into her house “complaining”; (2) she and her cousin had “gotten into it”; (8) her cousin pulled out a gun and acted like he was going to shoot her; (4) she and her cousin “got into a tussle.”

Mr. Fortune was eventually arrested and charged with, inter alia: first-degree burglary while armed, in violation of D.C.Code §§ 22-801(a), -4502 (2001); attempted robbery while armed, in violation of D.C.Code §§ 22-2802, -4502, -1803 (2001); and unlawful possession of a firearm after having previously been convicted of a felony, in violation of D.C.Code § 22-4503(a)(2) (2001) (a)(2) (2001 & Supp. [954]*9542008).3

On December 18, 2009, after trial, a jury found Mr. Fortune guilty of the lesser unarmed offenses of first-degree burglary and attempted robbery, and the trial judge found Mr. Fortune guilty of unlawfully possessing a firearm after a felony conviction (felon-in-possession). This appeal followed.

II.

Mr. Fortune first claims that the trial court erred by failing to obtain a valid waiver of his right to a jury trial before holding a bench trial on the felon-in-possession charge. Mr. Fortune did not object to the trial court’s failure to obtain a waiver at trial. We have not resolved whether a defendant must satisfy the strictures of plain error review where a trial court fails to fulfill its duty to elicit a waiver of his Sixth Amendment right to a jury trial and, because the outcome of this case is unaffected by the method of review, we need not resolve that issue in this case.4

Under the test for plain error, an appellant must show “(1) ‘error,’ (2) that is ‘plain,’ and (3) that affected [his] ‘substantial rights.’ ” Id. (quoting In re D.B., 947 A.2d 443, 450 (D.C.2008)). To show that the error affected a substantial right, the appellant originally “must show ‘a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.’ ” Mozee v. United States, 963 A.2d 151, 164 (D.C.2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “Even if all three of these conditions are met, this court will not reverse unless (4) ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Davis, 984 A.2d at 1259; see also Harris v. United States, 602 A.2d 154, 159 (D.C.1992) (en banc) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)) ( ‘It is well settled that reversal under the plain error doctrine is justified only in exceptional circumstances where ‘a miscarriage of justice would otherwise result.’ ”).

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Cite This Page — Counsel Stack

Bluebook (online)
59 A.3d 949, 2013 WL 173226, 2013 D.C. App. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortune-v-united-states-dc-2013.