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January 26, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Eugene N. Hamilton, Trial Judge.

Before Rogers, Chief Judge, and Newman, Associate Judge and Pryor, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge:

Appellant, Steven Mitchell, appeals from his conviction by a jury of kidnapping while armed, D.C. Code §§ 22-2101, -3202 (1989), felony murder while armed (kidnapping while armed), id. §§ 22-2401, -3202, and first-degree murder while armed, id. §§ 22-2401, -3202, on the grounds that the government failed to prove the crime occurred in the District of Columbia and hence the trial court did not have jurisdiction, and the trial Judge erred in denying a severance of his trial from the co-defendant's trial where the defenses conflicted and codefendant's counsel acted as a second prosecutor. He also seeks reversal on the ground of prosecutorial misconduct in closing arguments, improper use of prior consistent statements and of an out-of-court statement, and the denial of use of a prior statement of a defense witness. We agree that the trial Judge erred in denying a severance, but conclude that the error was harmless in view of the strength of the government's case. We reach similar Conclusions as to other errors; accordingly, we affirm.


On October 26, 1983, around 12:30 a.m., Deborah Fuqua visited appellant's home at 5344 C Street, S.E. According to the government's theory, appellant forced Fuqua to have sexual intercourse while she was in appellant's bedroom and then abducted her to a nearby wooded area where he killed her with a knife, and subsequently, with his friend Hair, the co-defendant, moved her body to Maryland. The government's evidence showed that appellant had been very anxious to get Fuqua to come over to his apartment and that after she arrived, appellant and Fuqua were in his bedroom until 3 or 4 a.m. Early that morning residents of the apartment house heard screaming, crying, and choking sounds coming from appellant's bedroom and appellant was seen struggling with Fuqua, holding his hand over her mouth, as they left the apartment building around 4 a.m. Fuqua did not return home that night, and on November 1, 1983, one of the shoes that she had been wearing was found in a field near 5340 C Street. Gov't Exhibit 24. After October 26, people noticed that appellant claimed to be exhausted and to feel sick, was hesitant to return to his apartment, generally acted nervous, and was "talking crazy," saying that he needed a pistol because of some problems with "dudes".

The government also presented evidence that appellant enlisted the assistance of his friend, Hair, in transporting Fuqua's body to Maryland. Appellant had stayed with friends for several days after October 26, 1983, and had repeatedly approached a friend, Samuel Jackson, about borrowing his car to take care of something "real heavy". On October 28, 1983, Hair borrowed a car from his cousin, Daniel Houser, while he was with appellant. Appellant returned to Jackson's house about 4 a.m. the following morning.

Fuqua's body was discovered about 11 miles from appellant's home on November 14, 1983. Hairs and fibers recovered from Houser's car, appellant's bedroom and Fuqua's clothing indicated Fuqua's body had been in the back of Houser's car. Fuqua died of stab wounds inflicted before her body was discovered and there was evidence that appellant kept a knife under his mattress.

Appellant was charged with kidnapping while armed, felony murder while armed based on the kidnapping, and first-degree murder while armed, while Hair was charged as an accessory after the fact of kidnapping while armed, of felony murder while armed, and of first-degree murder while armed, D.C. Code § 22-106 (1989). Appellant called two defense witnesses who testified that they saw Fuqua alive after October 26 when she came into a fast food restaurant where they worked, although one witness admitted on cross-examination that she was not sure of the date. Appellant testified that he had had sexual relations with Fuqua, but denied seeing her after she left his apartment early in the morning of October 26, 1983. Hair did not testify or present any evidence; on cross-examination of appellant, however, Hair's counsel suggested that appellant alone had moved Fuqua's body. The jury convicted appellant of all charges and acquitted Hair of all charges.


Appellant contends that the trial court lacked subject matter jurisdiction over the first-degree murder and felony murder charges, that the jury should have been instructed that it had to determine whether the fatal blow to Fuqua occurred in the District of Columbia, and that there was insufficient evidence that the fatal blow occurred in the District. At trial appellant's counsel advised the Judge that the jurisdictional issue was a question of law properly resolved by the Judge, however, and appellant is bound by the position that his counsel took at trial. Jones v. United States, 512 A.2d 253, 259 n.8 (D.C. 1986); Byrd v. United States, 502 A.2d 451, 452-53 (D.C. 1985) (citing Hackes v. Hackes, 446 A.2d 396, 398 (D.C. 1982)). In any event, we find no error.

Under D.C. Code § 11-923 (b) (1) (1989), the jurisdiction of the Superior Court is limited to "any criminal case under law applicable exclusively to the District of Columbia." This limits jurisdiction to criminal violations taking place within the District of Columbia. Mundine v. United States, 431 A.2d 16, 17 (D.C. 1981). The question of where an offense took place is "not one of fact for the jury." Id. at 18; Adair v. United States, 391 A.2d 288, 290 (D.C. 1978). *fn1 Hence, the trial Judge did not err in ruling that the jurisdictional question was for him to decide.

The question remains what burden of proof is required to show jurisdiction. Many states require proof beyond a reasonable doubt. Annotation, Proving Venue, Territorial Jurisdiction, 67 A.L.R.3d 988, 1004 (1975). Thus, for example, in State v. Baldwin, 305 A.2d 555 (Me. 1973); Annotation, (supra) , 67 A.L.R.3d at 1004, the Supreme Court of Maine reasoned that a stringent standard of proof reflects the gravity of the effect of an erroneous jurisdictional determination upon the judicial process and upon the rights of defendants and, because jurisdiction can never be waived nor conferred by consent, would insure that when a court acts, it does so with authority and best avoid the risk that a defendant already tried might be tried in a second jurisdiction for the same offense where the first court was without jurisdiction. 305 A.2d at 559-60. In addition, the Maine court reasoned that much greater deference would be given to its court's decisions by other jurisdictions if Maine's jurisdiction were established by evidence beyond a reasonable doubt. Id. at 560-61. See also State v. Jones, 51 Md. App. 321, , 443 A.2d 967, 978 (1982); State v. Batdorf, 293 N.C. 486, , 238 S.E.2d 497, 502 (1977); Conrad v. State, 262 Ind. 446, 317 N.E.2d 789 (1974). The alternative view, that jurisdiction be proved by a preponderance of the evidence, has been adopted by courts without helpful explanation. *fn2 We find persuasive the rationale underlying the rule that jurisdiction must be proved beyond a reasonable doubt. A jurisdictional determination involves the power of the court to try a defendant and adopting a stringent burden of proof minimizes the chance that a defendant will be tried here for a crime committed elsewhere and thereby increases the likelihood that greater deference will be given to our decisions by other jurisdictions.

Applying this rule in the instant case, we hold that there was sufficient evidence that elements of a continuing offense occurred in the District of Columbia. Adair, supra, 391 A.2d at 290. Fuqua was observed being forcibly taken by appellant from his apartment building in the District of Columbia towards a wooded area after being raped; her shoe was found in the woods behind appellant's apartment building; and blood and fibers found in Houser's car combined with the evidence of when appellant had access to the car provided strong circumstantial evidence that Fuqua had been transported from the District of Columbia into Maryland in Houser's car. Appellant made no affirmative showing to ...

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