An attorney’s argument that excerpts from a shooting defendant’s recorded jail call should not be submitted as evidence fell flat before DC Superior Court Justice Danya Dayson on Oct 1.
Ato Ocran, 46, is charged with assault with intent to kill while armed, aggravated assault knowingly while armed, two counts assault with a dangerous weapon, four counts possession of a firearm during a crime of violence, five counts possession of an unregistered firearm, destruction of property of $1000 or more, and carrying a pistol without a license outside the home. The charges stem from his alleged involvement in a shooting on the 2200 block of 13th Street, NE, on June 3.
Parties met to discuss several pretrial motions the day before jury selection. Among the requests was an effort by defense attorneys Elizabeth Paige-White and Kevann Gardner to suppress excerpts from recorded jail calls between Ocran, his brother and girlfriend. In the recordings, they allegedly mentioned the shooting and an earlier altercation over a disconnected electric car charger at a Giant grocery store, which prosecutors allege precipitated the shooting.
Prosecutors also moved to introduce excerpts from an Ocran jail call asking his brother to change his Hotmail password and access videos stored on Ocran’s Tesla.
Prosecutors claimed that the conversation pointed to Ocran’s consciousness of guilt while White and Gardner argued that changing his email password was a sensible thing for anyone in his situation to do to protect sensitive information, financial and otherwise, during an investigation.
White added that Ocran’s brother had asked about accessing the email account and Tesla videos at her behest.
“Part of what I asked for was access to the email to get into the [Tesla] account to access the password,” White said.
Prosecutors said that if White wanted to testify before the jury about the matter, that she would have to recuse herself from the trial.
Judge Dayson ruled to admit the evidence and said that a jury would have to determine for themselves whether the conversation indicated consciousness of guilt or not, adding that the moment Ocran shared information with his brother the conversation was no longer protected under attorney client privilege. She also said that White should have gone through her investigator so that the court could call a fact witness to testify about the circumstances of the conversation.
Parties also discussed whether to admit photographs of a soft gun case and a Smith and Wesson owner’s manual found in Ocran’s home as evidence. Prosecutors informed the court that the physical items could not be located in evidence and moved to submit photographs of the objects instead. Judge Dayson precluded the pictures of the gun case from being entered but allowed the prosecution to enter photographs of the gun manual over objections from the defense.
“You can cross-[examine] on all the things you just raised,” Dayson told Gardner after overruling his objections.
Judge Dayson also said she needed more time to consider Gardner’s arguments about impeaching some of the prosecution’s witnesses over their past convictions, though she delivered an instruction on Gardner’s request that his client be referred to by his name and not simply as “the defendant” throughout the trial.
“I’m going to ask that to the extent that the use of the word ‘defendant’ is relevant or necessary, I’m going to ask that you limit it to that use,” Dayson instructed the court.
“That’s progress, Judge,” Gardner said.
Parties are slated to reconvene Oct. 2 for jury selection and opening statements.
