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12/28/90 MARK K. GAYDEN v. UNITED STATES

December 28, 1990

MARK K. GAYDEN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Fred. L. McIntyre, Trial Judge

Belson, Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Steadman

Appellant was convicted by a jury of second degree murder while armed, D.C. Code §§ 22-2403, -3202 (1989). He challenges his conviction on several grounds. First, he contends that there was insufficient evidence presented at trial to support a finding that he was guilty beyond a reasonable doubt of murder, either as a principal or as an aider and abettor. He relies particularly on the ruling of this court in an interlocutory appeal in this case, affirming the trial court's suppression of appellant's confession made during a detention without probable cause. United States v. Gayden, 492 A.2d 868 (D.C. 1985) ("Gayden I"). Second, appellant argues that he was denied his sixth amendment right to a speedy trial. Finally, he argues that the trial court abused its discretion in admitting into evidence a statement of the dying victim. We affirm.

I

Our standard of review for sufficiency of evidence has been often stated. "In evaluating a claim of insufficient evidence, an appellate court must review the evidence in the light most favorable to the government, recognizing the jury's right to determine the credibility of the witnesses and draw justifiable inferences from their testimony." Frendak v. United States, 408 A.2d 364, 370 (D.C. 1979). "Circumstantial evidence may be equally as probative as direct evidence." Head v. United States, 451 A.2d 615, 625 (D.C. 1982). Thus, "the fact that the case may rest on circumstantial evidence is of little consequence if the evidence is such that it may reasonably convince a trier of fact beyond a reasonable doubt." Chaconas v. United States, 326 A.2d 792, 797 (D.C. 1974). "It is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction." Frendak, supra, 408 A.2d at 371.

We do not make our determination of legal sufficiency in this case on a clean slate, however. This court in Gayden I concluded that the government produced insufficient evidence at the suppression hearing to support a finding of probable cause to arrest appellant. Gayden I's determination of the legal weight of the facts before it is binding on us. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). Thus, we cannot find the trial testimony to be sufficient to support a finding of guilt unless the trial testimony materially expanded upon the evidence presented at the suppression hearing. We think it did.

A

Gayden I sets forth in some detail the evidence then before the court. In brief, the victim, one Bart Black, as he lay dying in the street from six bullet wounds, named "Poochie" and "Rabino" or "Rabinol" as his assailants. The police located an acquaintance of the victim, Joel Bryant, nicknamed "Rabino" and "Rabbit." Learning that appellant Gayden, who had the nickname "Poochie," was also an acquaintance of Black, the police asked him to come in voluntarily for questioning, which he did. After a change in story, he stated that he was present at the scene of the murder but "Turk" was the killer. Also present was Howard Owens, *fn1 who owned the car in which the three of them, together with Black, were riding and which caused damage to other cars as they left the murder scene. An immediate check by the police of Owens's car revealed no damage to it. Further questioning of appellant in an accusatory manner led to his confession to having killed Black. In Gayden I, we affirmed the trial court ruling suppressing the confession, holding that appellant was under arrest at that point but without probable cause. *fn2 As to the prior statements, however, we agreed with the trial court that appellant was not "illegally detained" when he made them, and that they were voluntary and hence admissible.

In Gayden I, we indicated our concerns relating to the number of potential "Poochies" and the uncertainty about the details of the crime. We noted that the Washington Area Law Enforcement computer showed 17 listings for Poochie, and the modus operandi section of the Metropolitan Police Department contained 21 listings for that nickname. *fn3 After referring to the interrogating officer's testimony that prior to the confession, he "only had a hunch" about appellant's guilt and considered him "only a witness," we said:

Moreover, although Mr. Black had named a "Poochie" and Gayden admitted he was at the scene of the crime and his story about the car could not be verified, the police knew about a number of other "Poochies." They also knew from one of the victim's friends that Mr. Black knew several "Poochies." Detective Helwig admitted that the police had identified only one Poochie at the time they questioned Gayden and that 'Poochie is a very, very common street name.' A number of people were at the scene of the crime. . . . The police had yet to determine whether other Poochies were on the scene or whether the others at the scene had seen Gayden do anything which would make it more probable than not that he was guilty of murder.

492 A.2d at 874-75 (citation omitted).

At the trial itself, considerable additional specific information concerning the crime came to light through the testimony of some eighteen witnesses. The government presented the testimony of Lorraine Allen, who lived on the street where the victim was found. She testified that she heard a crash and that when she looked out of the window, she saw a light-colored car that had hit a parked van. On the passenger side of the car, she saw a man bent over. As the car drove away, she saw a person on the ground near the van. She saw no other moving vehicles and nobody else walking around or on the street other than the victim. Her husband, Lester Allen, also had heard a crash and rushed to the window. He too said the street was empty of any other moving cars or persons. One Archie Ferguson testified that he lent his 1972 yellow Chrysler *fn4 on the night of the killing to Ronald Reed, also known as "Puddin"; *fn5 that Joel Bryant, also known as "Rabbit," returned the car to him the next morning; *fn6 and that Ferguson found the car seriously damaged. An enforcement officer specializing in paint analysis testified that in his opinion it was virtually certain that Ferguson's car was responsible for the paint damage caused to several vehicles parked at the scene of the crime. A crime scene search officer testified that no shell casings were found on the street. A ballistics expert testified that two of the recovered bullets came from the same gun and that the remaining bullets, although not definitely traceable, had the same class characteristics. Howard Owens, who was appellant's next-door neighbor, also testified, indicating no involvement in the crime, but confirming that appellant's long-time nickname was "Poochie" and that both Owens and appellant knew Black, who sold drugs, and had spoken with him about drug purchases. Gregg Terrell testified to the same general effect. Both Owens and Terrell denied that they were nicknamed Poochie or Rabbit. Likewise, the investigating detective testified that in the course of the investigation, no information had indicated that either Owens, Terrell or Turk had the nickname of Poochie, Rabino, or Puddin nor had Gayden referred to them as such.

Thus, at trial, significant evidence was presented to show that the car at the scene of the crime was that belonging to Ferguson, that the "Rabbit" identified by Black was Bryant, who returned the car to Ferguson, and that Reed, also known as Puddin, who borrowed the car originally, was a likely third participant. Equally important, the relevant field of Poochies had been markedly shrunken. Rather than a possible "number of people" at the murder site, the testimony showed that the street was empty of pedestrians or other cars. Owens, Terrell and Turk were effectively eliminated, as Poochies, and Bryant's nicknames were established as Rabbit and Rabino. With respect to Reed, identified as Puddin, appellant makes much of the fact that stapled notepapers found with Black, containing a listing of telephone numbers, carried a notation apparently reading "PUGH" or perhaps "PUGIT" with a telephone number belonging to Reed. *fn7 The evidentiary weight of this notation was fully argued to the jury by appellant. Moreover, Puddin was the only nickname for Reed indicated by the other evidence, *fn8 the entry itself shown in the notepapers was ambiguous, and other explanations could exist for the entry with Reed's phone number in any event.

In sum, we think the government presented significantly augmented evidence at the trial sufficient to warrant a reasonable jury to find ...


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