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02/07/92 KEVIN LEONARD v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


February 7, 1992

KEVIN LEONARD, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Truman A. Morrison, III, Trial Judge)

Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Kevin Leonard appeals his convictions by a jury of second degree murder while armed, D.C. Code §§ 22-2401, -3202, assault with intent to kill while armed, id. §§ 22-501, -3202, malicious destruction of property, id. § 22-403, and carrying a pistol without a license. Id. § 22-3204. He contends that the trial Judge erred by instructing the jury on aiding and abetting in the absence of a factual predicate. We affirm.

I

On November 23, 1986, the decedent, Elliot Curtis, and Valencia Turner were sitting inside a parked car near the intersection of Wheeler Road and Wahler Place, Southeast. At approximately 6:25 p.m., a blue car pulled up in front of their car. Within minutes, shots were fired. Ms. Turner was only slightly injured, but Mr. Curtis died as a result of the gunshot wounds. At trial, the government's evidence showed that the shooting arose from efforts of Bobby Holton, a cousin of the co-defendant Torrence Holton, and others (including Torrence Holton) to retrieve his car after having swapped it temporarily for the use of a truck owned by Alvin Gaskins. *fn1

The government's key witness, Myra Teeter, testified that Mr. Curtis had stopped the car near the corner of Wheeler Road and Wahler Place. Thereafter she saw a blue car drive up fast and park in front of the car occupied by Mr. Curtis and Ms. Turner. Ms. Teeter, standing on the passenger side of the car occupied by Mr. Curtis, saw appellant get out of the blue car on the driver's side and walk over to the driver's side of the other car and begin talking with Mr. Curtis. She could not hear their conversation, and she saw nothing in appellant's hands. Meanwhile, Torrence Holton got out of the blue car on the passenger side, with a gun pointing down in his hand at his side. He walked to the back of the blue car, so that he was standing in front of the other car, and began shooting into the car where Mr. Curtis and Ms. Turner were sitting. Torrence Holton moved around to the passenger side of the car, opened the door and fired another shot. While Torrence Holton was shooting, appellant drew a gun and fired inside the car on the driver's side. After the shooting was over, the two men got back into the blue car and drove off. *fn2

Appellant's defense was innocent presence. Curtis Freeman, a "good friend" of Mr. Curtis, the decedent, testified that he saw appellant walk toward Mr. Curtis, stop, raise his hands and back away from the car as Torrence Holton ran to the driver's side of the car occupied by Mr. Curtis and Ms. Turner, and began shooting. He did not see appellant with a gun. He testified that when Torrence Holton began shooting, appellant ran back to the blue car and attempted to close the passenger door and drive away, but Torrence Holton stopped him by saying "Don't move this motherfucking car." After the shooting, Torrence Holton got into the car and the two men drove away. Mr. Freeman later saw Mr. Curtis get out of the car and fall down; he saw a gun in Mr. Curtis' hand. *fn3

After the close of all the evidence, the trial Judge reviewed proposed instructions with counsel, indicating, among other things, that he would give an aiding and abetting instruction. Both defense counsel objected. The prosecutor requested that the instruction be given because, as to appellant, who had not been involved in the earlier efforts to retrieve the car, there was evidence that he had distracted Mr. Curtis by speaking to him, giving Torrence Holton time to get out of the car. The prosecutor noted that there was evidence that all of the bullets recovered from Mr. Curtis' body were of the same caliber but there were two shooters; hence the jury might find that because bullets from only one of the guns had been found in the body, the other person who fired a gun had not been involved in Mr. Curtis' death. The trial Judge agreed, and asked both defense counsel why they objected. Appellant's counsel stated that "the Government had tried the case as two shooters shooting into the car," and noted an objection for the record. Thus, the instruction was to be given based on the prosecutor's two theories: first, that because appellant had not been involved in the previous attempts to retrieve the car and because he and Mr. Curtis were good friends, appellant had acted as an aider and abettor by purposely distracting Mr. Curtis in order to give Torrence Holton time to get out of the car and into position to shoot at Mr. Curtis; second, appellant was one of the two shooters, but he did not fire the fatal shots. *fn4

II

Appellant contends that the trial Judge erred by instructing the jury on aiding and abetting because there was an insufficient factual predicate for the prosecutor's claim that appellant had aided and abetted Torrence Holton by distracting Mr. Curtis as Torrence Holton got out of the car and into position to shoot at Mr. Curtis.

For the government to prove that appellant aided and abetted Torrence Holton in the murder of Mr. Curtis and in the assault on Ms. Turner, the government had to prove that appellant knowingly participated in the shootings by assisting the principal or participating in the commission of the crimes with guilty knowledge. Dew v. United States, 558 A.2d 1112, 1118 (D.C. 1989); Head v. United States, 451 A.2d 615, 626 (D.C. 1982). "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 reasonable inferences from their testimony." Frendak v. United States, 408 A.2d 364, 370 (D.C. 1979). Generally, 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." Id. at 371. However, when the government during trial "has proceeded against the defendant as a principal and only at the close of the evidence sought an aiding and abetting instruction, such an instruction is permissible where 'there is clear and convincing evidence that the defendant was present and participating in the crime.'" Gayden v. United States, 584 A.2d 578, 582 (D.C. 1990) (citing Head v. United States, supra, 451 A.2d at 626), cert. denied, 112 S. Ct. 137 (1991) Dew, supra, 584 A.2d at 582. See Bailey v. United States, 135 App. D.C. 95, 98, 416 F.2d 1110, 1113 (1969) (guilty participation is a sine qua non of aiding and abetting).

The government maintains, and we agree, that it was entitled to an aiding and abetting instruction under the government's primary theory that appellant was one of the shooters. As in Gillis v. United States, 586 A.2d 726, 728 (D.C. 1991), where the court held that an aiding and abetting instruction is appropriate when more than one gunman participates in a shooting but the evidence is unclear which gunman is responsible for firing the bullets causing the injury, the government was entitled to an aiding and abetting instruction that permitted the jury to find appellant guilty whether he was personally responsible for shooting each victim or he was acting with another in carrying out the shooting. Further, the court stated in Head, supra, 451 A.2d at 626, that "if there is clear and convincing evidence that the defendant was present and participating in the crime, a trial court's instruction on aiding and abetting does not mislead the jury or require reversal." See Gayden, supra, 584 A.2d at 583 (traveling to scene with a principal, remaining there during commission of crime, and fleeing with principal "are sufficient facts to underpin a conviction for aiding and abetting").

Appellant concedes that he was present at the scene of the shooting, and indeed, that he drove Torrence Holton to the scene in his car. What he primarily disputes is that the government presented clear and convincing evidence of his guilty knowledge in the act of speaking with Mr. Curtis before Torrence Holton began firing his gun. *fn5 Viewing the evidence, as we must, in the light most favorable to the government, see Frendak, supra, 408 A.2d at 370, and crediting Ms. Teeter's testimony, we are satisfied that there was clear and convincing evidence from which the jury could reasonably infer that appellant acted knowingly to distract Mr. Curtis.

Ms. Teeter testified that appellant arrived at the scene in a blue car with Torrence Holton, and exited the car first. According to Ms. Teeter, appellant walked to the driver's side of the other car and began speaking to Mr. Curtis. While he spoke to Mr Curtis, Torrence Holton got into a position to shoot. Once Torrence Holton began firing, appellant pulled a gun out of his waistband and began firing into the driver's side of the car where Mr. Curtis was sitting. The totality of Ms. Teeter's testimony was sufficient to show by clear and convincing evidence appellant's guilty knowledge in speaking to Mr. Curtis. There was evidence that appellant was living with a woman who had grown up with the co-defendant, who, earlier that day, had tried to help his cousin, Bobby Holton, retrieve his car from Mr. Curtis. A reasonable jury could infer that appellant knew about Torrence Holton's plans when he drove Torrence Holton and stopped in front of the car that Torrence Holton had tried to retrieve earlier that day. The jury reasonably could find that appellant's actions as driver and in bringing his own gun to the scene, and his other conduct at the scene -- both the conversation and the delayed shooting -- showed purposeful conduct designed in part to distract Mr. Curtis so that Torrence Holton could get into position in front of the car where Mr. Curtis was sitting. Since the evidence was that appellant had not been involved in the earlier attempts to retrieve the car, the jury also could reasonably find that Mr. Curtis would not have suspected trouble when appellant approached him and, consequently, would be caught off guard when Torrence Holton starting shooting at him.

In addition, the physical evidence supported Ms. Teeter's version of events. The recovered bullets indicated that two guns were fired. The car had been struck by bullets fired on three sides of the car. Glass from the car in which the decedent was shot was found on the floor by the driver's seat of appellant's car. Furthermore, in view of Ms. Turner's testimony that Mr. Curtis was unable to reach his gun under the seat of the car, the evidence supported Ms. Teeter's testimony that the two guns involved in the shooting belonged to appellant and Torrence Holton, and not to Torrence Holton and Mr. Curtis, as defense counsel argued to the jury. Thus, unlike Bailey, supra, 135 U.S. App. D.C. at 99, 416 F.2d at 1114, Ms. Teeter's testimony about appellant's conversation with Mr. Curtis and his delayed shooting into the car provided "manifest evidence" of his cooperation in Torrence Holton's scheme. The evidence of appellant's guilty knowledge in speaking with Mr. Curtis was circumstantial and may not have been as strong as that in Wesley v. United States, 547 A.2d 1022, 1027 (D.C. 1988), but it was not "borderline" evidence of aiding and abetting, as in Downing v. United States, 434 A.2d 409, 412 (D.C. 1981) (Ferren, J., Concurring).

Although appellant presented evidence that he attempted to withdraw and disassociate himself from the shooting, and some of the government's witnesses' testimony was not inconsistent with the defense version of events, the jury was not required to reject the government's version of what happened. See Payne v. United States, 516 A.2d 484, 495 (D.C. 1986) (credibility of witnesses is for the jury). While the defense version of events, recounted principally by Mr. Freeman, was not implausible -- Torrence Holton could simply have asked appellant for a ride because he knew appellant and Mr. Curtis were friends, and appellant's presence could distract Mr. Curtis, without informing appellant of his own plans -- another version, supported by the evidence, was that he arrived with a gun and joined Torrence Holton in shooting into the occupied car as soon as Torrence Holton was in position and himself had begun shooting. Neither the fact that defense counsel sought to discredit the testimony of Ms. Teeter -- because of her drug habit and prior convictions and the discrepancies in her testimony regarding how close she was to the cars during the shooting and the fact that when she first spoke to the investigating detective she failed to give appellant's first name -- nor the fact that she was the only witness to identify appellant as one of the two shooters meant that there was not clear and convincing evidence of the distraction theory. *fn6 Hill v. United States, 541 A.2d 1285, 1288 (D.C. 1985). Contrary to appellant's contention that so viewing the evidence would require the jury "to chop [Ms.] Teeter's testimony in half," Ms. Teeter's testimony encompassed the conversation with Mr. Curtis and appellant's shooting at the occupied car after Torrence Holton started firing. *fn7 There was no occasion, therefore, for the jury to "fragment the testimony in a selective process . . . so attenuated as to strain credulity to the breaking point." United States v. Crowder, 177 App. D.C. 165, 171, 543 F.2d 312, 318 (1976) (internal quotation marks omitted), cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L. Ed.2d 779 (1977).

Accordingly, we affirm the judgments.


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