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December 30, 1991


Appeals from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Schwelb and Wagner, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb

Opinion for the court by Associate Judge SCHWELB.

Dissenting opinion by Associate Judge WAGNER.

SCHWELB, Associate Judge : Life can be cheap on the streets of our city. On the evening or March 26, 1988, Stephen Brandon jumped out of the back seat of an automobile which was being driven on Wheeler Road in southeast Washington by appellant Tyrone Martin and fired a handgun at Clayton (Ricky) Gray and Marvin Pegues. Gray was struck in the chest and died shortly afterwards; Pegues escaped unharmed.

Brandon and Martin were charged with the crimes. The prosecution's theory was that Brandon, who was twenty-one years old, was the principal, and that Martin, who was forty-one, and who was related to Brandon by marriage, induced Brandon to act and was therefore responsible as an aider or abettor. Brandon entered a mid-trial guilty plea to two lesser-included offenses; Martin was convicted of the principal charges by the jury. *fn1

At trial, evidence was proffered or received with respect to two possible (and strikingly different) motivations for the carnage on Wheeler Road. According to the prosecution, Brandon killed Gray and shot at Pegues at Martin's urging as a result of an obscene verbal altercation, marginally over a woman, in which Martin had become embroiled with the two victims in a liquor store a short time earlier. Martin's theory, based primarily on Brandon's testimony during the plea proceeding, was that Gray and Pegues had robbed Brandon on an earlier occasion, and that Brandon's motive was personal revenge. Martin sought to show that it was Brandon, not Martin, who quarreled with the men at the liquor store. He contended, and continues to maintain on appeal, that a robbery victim's revenge provides a far more plausible motive for murder than does the salvaging of a friend's pride following an exchange of tasteless insults.

Beginning with a pretrial motion for severance, Martin consistently but unsuccessfully asked that the cases be tried separately and that Brandon be tried first, so that he (Martin) could present to the jury Brandon's testimony, which he claimed would tend to exculpate him. After Brandon entered his plea, Martin requested a mistrial so that he could call Brandon as a defense witness after Brandon had been sentenced. The Judge denied the motion.

As a result of the Judge's ruling, the jury never learned that Brandon claimed to have a cogent personal reason, which was completely unrelated to Martin, for seeking revenge against Gray and Pegues. Concluding that the Judge's refusal to order a mistrial unreasonably restricted Martin's opportunity to present significant and potentially exculpatory testimony, that this consideration outweighed the public interest in short-term judicial economy, and that the Judge erroneously relied on his own assessment of Brandon's credibility, we reverse Martin's convictions and remand the case for a new trial.



A. The prosecution case.

The principal prosecution witness at trial was Vilencia Stover, who was with Martin and Brandon both during the altercation at the liquor store and immediately preceding the homicide. Her testimony was corroborated, in part, by Marvin Pegues, the second victim of the shooting, and by Janice Easterwood, a young woman who was with Martin, Brandon and Ms. Stover for a part of the relevant time.

When the case came to trial in March 1989, Ms. Stover, who is known to her friends as Lindsey, was a twenty-five year old mother of three. She testified that she "used to have a love affair" with Gray, whom she liked "quite a bit," and that she had spent the evening before the murder with Gray. *fn2 She explained that she was also slightly acquainted with Martin, whom she knew as "Petey," and who was considerably older than she was. She claimed that "Petey" would try to flirt with her on occasion, *fn3 but that his romantic aspirations towards her were unreciprocated and had not been consummated.

On March 26, 1988, Ms. Stover had been visiting one of her girlfriends in the Trenton Park apartment complex in southeast Washington. The two women had been smoking crack cocaine from a pipe. Explaining that "when I hit , I like to drink," Ms. Stover decided to go out and get a beer. In the parking lot, she encountered Martin and asked him for a ride to the liquor store. Martin agreed to take her. On the way to the store, Martin and Ms. Stover picked up Brandon (whom Ms. Stover knew as "Black"), as well as a female acquaintance named Janice Easterwood.

When the four of them arrived at the liquor store, Brandon went to a telephone booth to make a call, while the other three went inside. Ms. Stover asked Martin to buy her a six-pack of beer. Martin declined to do so and made a belittling remark about Ms. Stover and her friends. He did, however, agree to buy Ms. Stover a sausage. In the meantime, Gray and Pegues had come into the establishment. Ms. Stover testified that Martin was standing in line behind her and that Gray was positioned behind Martin. Gray playfully tapped Ms. Stover and began "ducking and hiding behind Petey's (i.e. Martin's) back." Martin became annoyed and demanded to know why Gray was playing behind his back. Gray responded that he was playing behind Ms. Stover's back, not behind Martin's. Martin asked Ms. Stover if she knew Gray, and she confirmed that she did. An argument ensued, prompting Ms. Stover to go outside the store and to bring Brandon to the scene.

Gray, apparently attempting to put an end to the incident, told Martin that he was sorry, that "it ain't like you think it is," and that he was simply trying to "holler" at Ms. Stover because he knew her. Peace might perhaps have been restored by Gray's apology, but at this time Pegues intervened. According to Ms. Stover, Pegues told Gray:

Man, you don't owe that man no explanation. Fuck that man. He could suck my dick.

Now even angrier, Martin responded that "you going to suck your own dick, because don't nobody tell me to suck their dick." The encounter nevertheless ended without any blows being struck, for all of the participants left the store.

Martin, Ms. Stover, Brandon and Ms. Easterwood drove back to Trenton Park. According to Ms. Stover, Martin was still extremely angry over the incident at the liquor store. When the group arrived at the apartment complex, Ms. Easterwood left. Martin remained in the vicinity of the car but told Brandon to "get the things," or words to that effect. Brandon departed, but returned soon thereafter with two handguns. Paul Simms, a friend of Martin and Brandon, arrived with Brandon. Ms. Stover, apparently apprehensive about the weaponry, attempted to depart. Martin gave her a "serious look," however, and told her that she wasn't going anywhere, because she was going to see him *fn4 "suck his own dick."

Ms. Stover, Martin, Brandon, and Simms drove off in the direction of the liquor store. Once again, Tyrone Martin was at the wheel. As Martin was driving along Wheeler Road, someone yelled "there they go!" Ms. Stover and the others recognized Gray and Pegues, who were travelling on foot. Martin turned the car around and stopped near the two men. Brandon got out of the vehicle and yelled at them. Gray put up his hands, but Brandon shot him in the chest. *fn5 Brandon also fired at Pegues; fortunately he missed. Pegues made his escape as Gray lay on the sidewalk, mortally wounded.

Brandon returned to the car. According to Ms. Stover, Martin complained that "you got the wrong guy" and that he, Martin, was supposed to (or going to) "get one too." No further acts of violence were attempted, however, and Martin drove to Simms' apartment. According to Ms. Stover, Brandon threatened in Martin's presence that if Ms. Stover reported the crime, then "the same thing that happened to would happen to ." Eventually, the three men departed, leaving Ms. Stover behind. *fn6

On cross-examination, Ms. Stover acknowledged that she had given two signed statements to the police. She testified that initially "I wasn't giving [the police] the true story for I didn't like how [the detective, was talking to me *fn7 and I was afraid to tell him." In the first statement, she described Martin as twenty-three or twenty-four years of age; any other claimed discrepancies between her statements and trial testimony, however, were in our view, of a comparatively minor character, although the defense attempted to make much of Ms. Stover's failure originally to mention that Paul Simms was in the car during the ride that preceded the fatal shooting.

Pegues also testified for the prosecution. He stated that he and Gray went to the liquor store on the night in question in order to obtain change, so that they could purchase a ten dollar bag of "boat" (PCP on marijuana) for eight dollars. They saw Ms. Stover, whom they knew as Lindsey, with a man with whom Pegues was not previously acquainted, but whom he identified in court as Martin. Gray attempted to speak to Ms. Stover, but Martin became angry and demanded to know what Gray was doing behind his back. Pegues' description of the encounter was reasonably similar to that provided by Ms. Stover, except that Pegues did not mention the profane language which dominated Ms. Stover's account, and claimed not to recollect having made a remark of the kind that had allegedly so angered Martin. Pegues stated that he and Gray both became angry, but that "I wasn't angry like I wanted to fight." Pegues said he told Martin that he was "acting like he was two years old," and that "it isn't even worth it." In response, according to Pegues, Martin "said he would kill both of us."

Pegues also described the shooting of his friend, but was unable to identify the gunman, except to state that it was someone other than Martin. He related that he ran for his life, but that after the car carrying the killer drove off, he returned to the scene, saw his bleeding companion lying on the sidewalk, and called for help.

Janice Easterwood, a young woman who was friendly both with Brandon and with Ms. Stover, testified that she came into the liquor store with Ms. Stover and Martin, and that she gave Ms. Stover a dollar to buy a beer after Martin refused to buy one for her friend. She stated, however, that she then went back to Martin's car and was no longer in the store during the argument which Martin allegedly had with Gray and Pegues. When Martin and Ms. Stover returned to the car, Martin was extremely agitated, his complaint being that a "motherfucker" had told him to "suck his dick." Ms. Easterwood also testified that when the group arrived at Trenton Park, Martin asked Brandon to "get it." She had previously seen handguns in the apartment which Martin sometimes shared with Brandon. She left, however, before Brandon returned.

B. The defense case.

Martin was the principal witness in his own defense. *fn8 He testified that he had been married for nineteen years and had four children. He lived in New York, but was in the process of relocating his family to Silver Spring, Maryland. In the meantime, he was staying at the Trenton Park complex. Brandon, who, as we have noted, was half his age at twenty-one and related to him by marriage, sometimes shared the apartment with him.

On the evening of March 26, 1988, Martin was planning to drive to New York with Brandon and Paul Simms. He acknowledged that he was a drinking man, and it was his intention to purchase some liquor before departing. On the way, he encountered Ms. Stover, whom he knew as "Lindsey," and with whom he said he had "tricked" (i.e., he had paid her money for sex) on three or four occasions. *fn9 Ms. Stover got in the car and, after they picked up Brandon and Ms. Easterwood, they proceeded to the liquor store.

Upon arrival at their destination, Martin went into the store and bought four bottles of liquor. He declined Ms. Stover's request that he buy her a beer; Ms. Easterwood, using insulting language about Martin, told Ms. Stover that she would buy her a beer instead. As this was going on, a man whom he did not know (obviously Gray) began to "play" with Ms. Stover, reaching over behind Martin. Martin was irritated, and told the man he should step in front of him if he wanted to play with the woman. Martin denied that there was any argument between him and Gray or any Discussion with anybody *fn10 about "sucking" anyone's "dick." He testified, however, that he observed a conversation or argument in another part of the store in which Gray, Brandon, Ms. Stover and Ms. Easterwood participated. He told Brandon to "leave that alone," and returned to the car.

Martin testified that he drove the group back to Trenton Park, and that there was no Discussion en route of any incident at the liquor store. When they arrived, Ms. Easterwood left, and Brandon got out of the car to pick up his clothes for the trip to New York. *fn11 Brandon then returned to the car with Simms; each man was carrying an overnight bag. *fn12 Ms. Stover announced that she was going to New York with the three men. When Martin questioned Ms. Stover's plan to travel with them, she said that she was going to stay with Simms and, when Simms did not react, Martin drove off towards New York, with all three of the other individuals as passengers. Martin explained that he had never driven to New York from Trenton Park before, and was therefore relying on Simms and Ms. Stover for directions.

Martin testified that after he had turned on to Wheeler Road, Ms. Stover said "stop," and "there they go." Someone told him to make a U-turn, which he did. Suddenly, Brandon and Simms got out of the car, and shortly thereafter he heard shots. The two men returned to the vehicle and told Martin to drive to Simms' apartment. Martin did so, and he and the others stayed at that apartment for an hour or so, drinking. The three men then drove to New York; Ms. Stover remained behind.

In relation to the shooting, Martin testified that he "looked straight ahead" when he heard the gunfire. He claimed that he did not see Gray or Pegues at the time, nor did he subsequently notice Gray's body on the sidewalk. Martin indicated that he may have asked Brandon and Simms "what was up," but that he posed few if any additional questions to them. As Martin meaningfully put it, "some things you don't ask, you don't want to know." On cross-examination, the prosecutor attempted, apparently ...

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