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12/30/91 DERRIE A. NELSON v. UNITED STATES

December 30, 1991

DERRIE A. NELSON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)

Before Ferren, Terry, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellant Nelson was convicted of one count of felony murder while armed, *fn1 first-degree burglary while armed, *fn2 assault with intent to kill while armed, *fn3 kidnapping while armed, *fn4 and carrying a pistol without a license. *fn5 The jury acquitted him of armed robbery *fn6 and of a second count of felony murder while armed, as to which that robbery was the underlying felony. On appeal he presents ten separate assignments of error, of which one is conceded by the government (see note 33, (infra)) and eight more are without merit. As to the tenth, we hold that the trial court erred in failing to consider a pre-trial claim of ineffective assistance of counsel in the manner prescribed by Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006, 58 L. Ed. 2d 683, 99 S. Ct. 621 (1978), and Farrell v. United States, 391 A.2d 755 (D.C. 1978). We therefore remand the case for further proceedings consistent with the Monroe-Farrell line of cases. If the Monroe-Farrell proceedings on remand result in a finding that appellant's Sixth Amendment right to the effective assistance of counsel was infringed, the trial court shall set aside his conviction and order a new trial. If the Sixth Amendment issue is resolved against appellant on remand, however, then the judgment of conviction shall stand affirmed.

I

A. The Government's Evidence

Leonard Kelly, the manager of a restaurant (Louie's) and the co-owner of another (the Nob Hill), owned a house in the 1100 block of Lamont Street, N.W. From time to time during the years he had lived in that house, Kelly had taken in a number of roomers. One of those roomers was appellant Nelson, who had been referred to him by an employee of the Nob Hill. Nelson rented a room on the second floor and moved in on December 1, 1984. However, when he failed to pay his rent, Kelly asked him to leave. Nelson moved out on the first weekend in January 1985, taking with him his set of house keys, *fn7 but leaving virtually all of his possessions behind except the clothes he was wearing. Kelly then placed Nelson's belongings in boxes and put them in the basement. A couple of weeks later, upon finding that some of the clothing and other items had been removed in his absence, Kelly assumed that Nelson had returned to collect them.

Shortly after Nelson moved out, Kelly rented another room in the house to Robert Nichols, whom he had known for several years. Nichols' room was on the second floor of the house, at the rear. Kelly testified that Nichols and Nelson had never met, nor did Kelly ever mention to Nelson that Nichols had become a tenant in his home.

On February 12, 1985, Kelly left home at about 5:30 p.m. to go to work at Louie's. At the time he left, Nichols was the only other person in the house. At 11:45 p.m. that same evening, Kelly's next-door neighbor, Tami Battle, had just returned home from a date and was parked in front of her house, saying goodnight to her boy friend, when she saw a man wearing bib overalls, work boots, a rust-colored jacket, and something blue on his head walk up the street toward Kelly's house. The man paused briefly at the front door and then continued inside. Battle testified, in response to a specific question, that this man did not have to "force anything or break anything" to get in. Battle then entered her own home, where her brother Troy was baby-sitting with her child, and went upstairs to a bedroom where Troy and the baby were sleeping. As she stood in the bedroom, Battle heard noises through the wall between her house and Kelly's house *fn8 that "sounded like a fight." Troy Battle said that he also "heard some noises like something was happening exactly adjacent to my room, like somebody was being banged up against the wall . . . and then I heard some muffled sounds, like somebody screaming or yelling . . . but it was kind of muffled because it was through the wall." Both Tami and Troy Battle then heard two gunshots, and a few moments later Tami Battle heard the sound of someone running through the adjacent house. She immediately went outside to her front porch, but Kelly's house was dark, and she saw nothing.

At approximately 2:30 a.m., Kelly drove home from work and parked his car in the garage. As he approached the back door of his house, he noticed that the rear gate, which had been locked when he left for work, was swinging open. Kelly was walking up the steps toward the back door when Nelson suddenly appeared and demanded to be let inside to pick up his belongings. Kelly told him to come back another time because it was too late in the evening, but Nelson refused to leave, pulled out a knife, and insisted that Kelly deliver his possessions.

Yielding to the threat of Nelson's knife, Kelly opened the back door, and the two men went inside. Immediately Kelly saw that a television set and a video cassette recorder (VCR) were missing from the sun room. Once inside, Nelson pulled out a gun and pointed it at Kelly's head, pulling the trigger twice. After the gun clicked but failed to fire, Nelson told Kelly, "You think it's a toy, don't you?" Nelson pulled the trigger a third time, but still the gun did not fire. Again Nelson demanded his belongings, and Kelly responded that they were in the basement. Kelly then started toward the kitchen. As he turned, Nelson shot him in the back of the head, and Kelly fell to the floor. Nelson walked over and took Kelly's keys from his hand, then told him to stand up. Kelly, however, could feel blood running down the back of his neck and replied, "I can't get up." Despite Kelly's pleas, Nelson grabbed him by the arm and forced him to get up and go out to the garage.

When they reached the garage, Nelson ordered Kelly to lie face down on the floor. Nelson then opened the trunk of Kelly's car and told Kelly to climb into it. Kelly stood up as if to do so, but instead he reached into the trunk, grabbed an umbrella, and hit Nelson on the side of the head. Kelly then fled down the alley behind his house, but Nelson caught up with him, and the two men resumed their fight. Kelly "got another swing" with the umbrella and started running again toward the Nob Hill restaurant, which was just a few doors away at the end of the alley. Nelson, however, caught up with Kelly outside the restaurant, slashed his face several times with the knife, and then picked up a cinder block and hit him once in the head with it.

Nelson fled when the manager of the Nob Hill, Ralph Smith, along with a bartender, came out of the restaurant. Smith, who had known both Nelson and Kelly for several years, testified that Nelson was wearing bib overalls and an orange "top" that night. *fn9 Lynette Edwards, another neighbor, also saw Nelson beating Kelly near the steps of the Nob Hill and then saw Nelson run away. *fn10 Kelly immediately telephoned the police, reporting the assault and naming Derrie Nelson as his assailant. He described Nelson as dressed in bib overalls, a red sweatshirt, and a dark knitted hat.

Officer Francis Nauheimer was the first to respond to the Nob Hill restaurant. Nauheimer spoke with Kelly and then went to Kelly's home nearby, where he found the garage open and, inside the garage, a car with an open trunk. Nauheimer returned to the Nob Hill and again spoke with Kelly. He then went back to the house and found Kelly's keys on a ledge inside the garage.

Circling to the front of the house, Officer Nauheimer, along with Officer Martin Manfredi, opened the front door and went inside. Finding the first floor ransacked, the two officers headed upstairs. In the back bedroom on the second floor, Nauheimer found the body of Robert Nichols lying on his right side on the floor, with blood on his head and right hand. Next to his head was a pillow with what appeared to be a bullet hole in it. There was also a bullet hole in the floor. Nauheimer felt Nichols' body for a pulse, but found none.

Officer Manfredi testified that he spoke with Leonard Kelly at approximately 2:50 a.m. and that Kelly, who was bleeding from the back of the head, told him that his assailant was a former tenant named Derrie Nelson. Kelly described Nelson as wearing bib overalls and an orange or red shirt. Manfredi broadcast a lookout, giving both a description and Nelson's name, and then began searching for Nelson himself. At about 3:10 a.m. Manfredi spotted a man on Sherman Avenue, N.W., who matched Kelly's description as to height. Manfredi stopped this man, whom he identified in court as Nelson, and asked him to unzip his jacket. Nelson complied, revealing neither bib overalls nor an orange or red shirt. Without asking Nelson his name, Manfredi let him go.

Shortly thereafter Officer Robert Panizari stopped Nelson in front of 2824 Sherman Avenue, N.W., about four blocks from the 1100 block of Lamont Street. Although Nelson did not appear to fit the description given in the broadcast lookout, Panizari asked him his name. When he replied that his name was Derrie Anthony Nelson, Officer Panizari placed him under arrest. *fn11 Panizari "did a fast patdown," read him his rights, and called for a transport vehicle to take him back to Lamont Street, the scene of the crime. Officer Melvin Bellamy, the driver of the transport, conducted a full search and found a closed knife with blood on it in the pocket of Nelson's jacket. After they arrived at Lamont Street, Nelson told Officer Panizari that he had been playing cards all evening at a party with thirteen other persons. *fn12 He also said that he had moved out of Kelly's home three months earlier.

Nelson was next taken to the homicide office at police headquarters, where the processing officer, Detective Norman Brooks, noticed blood on Nelson's socks and shoes. Nelson explained that he had cut himself on both arms while at a party. *fn13 Brooks noted no cuts or lacerations on either of Nelson's arms, but he did detect some abrasions. After photographs were taken of Nelson's arms, Detective Brooks seized the shoes, socks, and jacket Nelson was wearing.

Nelson gave a statement to Detective John Clark in which he said that he lived in an apartment at 2217 First Street, N.W. Later that same day, Detective Steele drove to that address to examine Nelson's car, supposedly parked outside the apartment. The car, described by Nelson as a 1973 red Pinto, was not there. Steele continued to drive by the apartment virtually every day until the car turned up ten days later, on February 23, in the alley behind the apartment. The occupant of the apartment was Ricardo Moore, who had initially recommended Nelson to Kelly as a prospective tenant. Nelson had stayed with Moore for a month after leaving Kelly's home in January. Moore testified that Nelson had moved out of his apartment and into one on Fairmont Street in early February, a few days before February 12. Timothy Frazier, a "good friend" of Nelson, testified that he had sublet an apartment at 1030 Fairmont Street, N.W., *fn14 to Nelson approximately one week before Nelson's arrest.

Dr. Michael Bray, a Deputy Medical Examiner, performed an autopsy on Nichols' body and determined that his death was the result of multiple gunshot wounds. In all, there were five bullet wounds to the body. One bullet had entered the left side of the chest and passed through the lung and heart; one had entered the abdomen; one had struck the back of Nichols' head near the base of the skull; one had entered the left side of the back just behind the left armpit and exited through the front of the chest; and one had grazed the middle finger of the left hand. *fn15 Dr. Bray testified that the wound entering the left side of the chest, by itself, would have been fatal within a few minutes. The wound entering the left side of the back was a contact wound, indicating that the gun had been placed against Nichols' body when it was fired. The autopsy also showed that the wound to the abdomen was most likely inflicted after death, when the assailant fired from a standing position into the body as it lay on the floor. Aside from this, however, it was impossible to determine the order in which the wounds were inflicted. Dr. Bray gave no estimate of the time of death.

Robert Hall, a special agent in the serology unit of the F.B.I. Laboratory, examined blood samples taken from Nelson's shoes and socks. The blood from the shoes was identified as human, but he could not discern further characteristics because of the small quantity of blood available for testing. The socks, however, were splattered with enough blood to identify characteristics compatible with either Kelly's or Nichols' blood, but excluding that of Nelson. Agent Hall also examined the knife recovered from Nelson. Hall was able to detect blood on the knife, but he could not determine whether the blood was human.

Special Agent Michael Malone, a hair and fiber expert with the F.B.I., examined hairs removed from the blue jeans and shirt worn by the decedent and concluded that these hairs microscopically matched sample hairs taken from Nelson. Malone also examined a hair found on Nelson's coat and determined that it matched that of Nichols. Finally, Malone compared and matched hairs taken from the cinder block with the head hairs of Kelly.

Kelly returned home on February 15 after a two-day stay in the hospital. An inventory of his home revealed that in addition to the television set and the VCR which he had initially found missing, a stereo, a ring, a watch, and two smaller television sets had also disappeared. In Nichols' room drawers were opened, items were strewn about the floor, and papers were scattered around the room. The room Nelson had occupied, however, was left undisturbed.

B. The Defense Evidence

Nelson testified that he had met Kelly while working part-time as a disk jockey at the Nob Hill, which is a club for homosexuals. He said that his tenancy arrangement with Kelly did not include the payment of rent; Kelly had simply agreed to give him a place to stay. He lived in Kelly's house for a month and was asked to leave when he refused Kelly's sexual advances.

Contrary to his statement to the police, Nelson testified that at about 11:30 p.m. on February 12 Kelly telephoned him at his First Street apartment. Kelly asked him to come over to his house, but he would not explain why until he got there. Nelson said that when he left his First Street apartment he was wearing sneakers, a yellow shirt, black slacks, and a waistcoat. When he arrived at Kelly's house sometime between 2:30 and 3:00 a.m., he initially went to the front door but, seeing no one, went around to the back and rang the bell. Kelly opened the door, let him in, and then locked both the gate and the door.

Once inside, Nelson immediately saw that a plaid coat which belonged to him was lying across the back of a chair. He also noticed that the large television set near the back door was missing. He followed Kelly upstairs to the second floor, where he saw the body of a man he did not recognize lying on the floor of the back bedroom. Kelly told Nelson that he needed help moving the body. When Nelson asked what had happened, Kelly answered, "That's not important." Nelson testified that he never touched the body but, instead, quickly went downstairs, grabbed his plaid coat, and attempted to leave. Finding the back gate locked, however, Nelson asked Kelly to let him out. Kelly refused, the two men struggled, *fn16 and Nelson managed to grab the house keys from Kelly's pocket. *fn17

With Kelly's keys Nelson opened the back door and started down the steps. Kelly charged after him with a kitchen knife, and the two began fighting in the garden. *fn18 Nelson took the knife from Kelly, cut him with it, and then ran down the alley. Kelly raced after him, trying to hit him with an umbrella which apparently had been in the garage. Nelson deflected Kelly's attack, kicking him in the face and knocking him to the ground. Kelly then started to run, this time with Nelson in pursuit. Nelson caught up with him behind the Nob Hill Restaurant, where they fought some more. Nelson then left and went to his apartment on Fairmont Street.

Nelson said that he "had never seen aggressive before." He admitted kicking Kelly in the face during the fight, but he could not explain the gunshot wound to the back of Kelly's head. *fn19 He also denied owning a gun.

Shortly after arriving home, Nelson left his apartment to go to a friend's house. The police stopped him briefly on Sherman Avenue, released him, but then arrested him minutes later. Nelson was initially taken to Kelly's home on Lamont Street and then transported to police headquarters. Once at the station, and after having been advised his rights, Nelson gave a statement to the police. He claimed, among other things, that he had been at a card game for most of the evening. *fn20 He admitted knowing Kelly, but denied having seen him or having been in or near his home at all that night. He said that he still had some property in Kelly's house but had not been back there to get it since he had moved out. Nelson claimed that he had driven a friend's car to the card game. *fn21 He told Detective Clark that he owned a red 1973 two-door Pinto, which was parked on First Street in front of his home, but that the car could not be driven because the battery had been stolen. He also stated that the blood on his socks and shoes had come from "dripping from both arms," but declined to say what had caused that "dripping."

At trial, Nelson admitted that he had lied in his statement to the police about having been at a card game. He also admitted lying about not having seen Kelly during that evening because he knew there was a dead man in Kelly's home and wanted the police to stop questioning him. He admitted that the blood on his socks and shoes was not his own, that he had not driven Timothy Frazier's car, that his car was not broken down, *fn22 and that he had withheld from the police the fact that he had an apartment on Fairmont Street. *fn23 After Kelly called him, he said, he drove over to his Fairmont Street apartment from his First Street apartment in his own car. A friend, Francis ...


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