United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court on Defendant's MOTION FOR ACQUITTAL OR FOR A NEW TRIAL (Docket No. 53) ("Motion"). To the extent that the Motion seeks a new trial, it will be granted. To the extent that the Motion seeks a judgment of acquittal, it will be denied.
On December 15, 2009, Robert Lee Pernell ("Pernell") was charged in a three-count Indictment in the Eastern District of Virginia, Richmond Division. Count One charged Pernell with Conspiracy to Interfere with Commerce by Threats and Violence (a Hobbs Act robbery), in violation of 18 U.S.C. § 1951; Count Two charged Pernell with Attempted Interference with Commerce by Threats and Violence and Aiding and Aberting, in violation of 18 U.S.C. §§ 1951 and 2; and Count Three charged Pernell with Use, Carry, Brandish, and Discharge a Firearm During/In Relation to a Crime of Violence, specifically the Hobbs Act robbery, in violation of 18 U.S.C. § 924(c).
At the time of the Indictment, Pernell was being held on pending charges in the City of Richmond so the United States lodged a detainer against him. He was sentenced on those charges in February 2010. While he was serving that sentence, on October 17, 2012, a Petition and Order for Writ of Habeas Corpus ad Prosequendum was issued, and Pernell was thereafter delivered to federal custody for trial on the Indictment. William H. Sooy was appointed as counsel for Pernell and, on November 17, 2012, Pernell made his initial appearance, was arraigned and entered not guilty pleas to all three counts. A jury trial was initially scheduled to begin on February 4, 2013, but it had to be continued because Pernell became dissatisfied with court-appointed counsel and decided to have his family retain counsel.
Christopher J. Collins was retained to represent Pernell, The trial was rescheduled for April 30, 2013 to allow new counsel time to prepare and to accommodate his existing client commitments.
Pernell was convicted of all three counts in the Indictment. On June 3, 2013,  Pernell filed, by counsel Collins, Defendant's MOTION FOR ACQUITTAL OR FOR A NEW TRIAL (Docket No. 53), and the United States responded (Docket No. 57)("U.S. Resp."). Thereafter, Pernell submitted a pro se letter dated July 15, 2013 notifying the Court that he no longer wanted to be represented by Collins and that he intended to retain other counsel. A hearing was held, and Collins was relieved as counsel. Pernell was given the opportunity, as he requested, to retain new counsel by August 9, 2013. However, because Pernell failed to retain new counsel by that date, the Court appointed Charles A. Gavin as counsel for Pernell. Counsel Gavin ordered a transcript of the trial and filed a SUPPLEMENTAL POSITION IN SUPPORT OF MOTION FOR JUDGMENT OF ACQUITTAL AND/OR NEW TRIAL (Docket No. 85)("Def.'s Supp'l Pos."), and the United States filed the UNITED STATES' RESPONSE TO DEFENDANT'S SUPPLEMENTAL MOTION FOR ACQUITTAL OR FOR A NEW TRIAL (Docket No. 87) ("U.S. Supp.").
The arguments in Pernell's supplemental briefs mirrored those in the initial motion for judgment of acquittal or, alternatively, for a new trial. In his briefs and in the oral arguments, Pernell made much of the contention that the Court had erred in denying Pernell's motion for mistrial. Therefore, at oral argument on March 20, 2014, the Court ordered additional briefing (Docket No. Ill) on the oral motion for a mistrial made during the trial, and whether the denial of the motion was an additional or alternative ground for a new trial. The United States filed its second supplemental response, entitled UNITED STATES' RESPONSE TO DEFENDANT'S MOTION FOR MISTRIAL (Docket No. 115) ("U.S. 2d Supp'l Resp."), and Pernell filed his SECOND SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR A MISTRIAL (Docket No. 118)("Def.'s 2d Supp'l Reply").
EVIDENCE AT TRIAL
The Government's case was relatively straightforward. Anwan Jones and Taj Gregory resided in a house on Lockett Ridge Road. Anwan Jones and Keona Peoples were the victims of the attempted robbery. Anwan Jones, like Taj Gregory, was a drug dealer. Peoples was Jones' girlfriend. Both testified that when they arrived at the home at approximately 2:00 a.m., two armed men dressed in black came from behind the house, brandishing firearms and attempting to force their way inside. Jones testified that the men shouted something like, "You know what time it is? (Unintelligible) the money." Jones struggled with the men at the front door, but they gained entry, whereupon Jones ran to a neighboring house. Peoples ran to the downstairs bedroom where there was a firearm. One of the men, later identified as Pernell, followed Peoples to the bedroom with a shotgun in hand. However, by that time, Peoples had located the pistol in the bedroom and fired it toward the intruder. One of the bullets struck Pernell who then fled, along with the other man. Jones testified that the drugs and the money in the house belonged to him and his partner, Taj Gregory, with whom he shared the house. The parties stipulated that the cocaine found in the house had been manufactured in a state other than Virginia.
The United States also presented testimony from law enforcement officers and forensic investigators. The law enforcement officers explained that they had been dispatched to the scene because of the reports about the gunfire at the house. Upon arrival, they found Anwan Jones outside the house and Peoples hiding in the bedroom closet with the pistol that she had fired at Pernell. The forensic investigators confirmed that bullets and cartridge casings were recovered from inside the house; that a single cartridge casing was found outside the house; and that the bullet holes in the walls of the house confirmed Peoples' version of the shooting. The spent cartridges in the house were from the gun fired by Peoples. The cartridge outside the house was from a different weapon. The forensic investigators testified about the location of blood on the floor in the apartment and on the steps to the porch. That blood was later identified, through DNA testing, as Pernell's. A search of the house turned up more than $125, 000 in U.S. currency and approximately 116 grams of crack cocaine.
To identify Pernell as one of the two men who entered the Lockett Ridge Road residence, the Government called Petersburg Police Captain Edwin S. Jones who testified that, on May 15, 2009, he travelled to the Southside Regional Medical Center after having received a report that a person there had a gunshot wound. The person who had been shot identified himself as "Frank Williams, " and he told Captain Jones that he had been shot in Petersburg. Although Captain Jones knew of no reported shooting that night in Petersburg, he was aware of the shooting on Lockett Ridge Road. This discrepancy and "Frank Williams'" refusal to provide the identity of the person who shot him made Captain Jones suspicious that Pernell may have been the person who had been shot at Lockett Ridge Road.
Thus, Captain Jones left to further investigate, and he instructed the hospital staff to alert him if anyone came to the hospital asking to see a man with a gunshot wound. Later in the day, Captain Jones was told by a member of the hospital staff that such an inquiry had been made about a man named Pernell.
Shortly thereafter, during a rambling discourse about efforts he had made to properly identify the man in the hospital who called himself ...