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06/26/92 ANDRE W. MARSHALL v. UNITED STATES

June 26, 1992

ANDRE W. MARSHALL, APPELLANT
v.
UNITED STATES, APPELLEE



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

Before Ferren and King, Associate Judges, and Pryor, Senior Judge. Opinion for the court by Associate Judge King. Opinion Dissenting in part and Concurring in the result only, by Associate Judge Ferren, at p. 15.

The opinion of the court was delivered by: King

KING, Associate Judge : Appellant was indicted along with Kevin Marshall and Theodore Taylor ("Taylor"), for the offenses of armed first degree murder (premeditated and deliberated) (D.C. Code §§ 22-2401, -3202 (1989 Repl.)); armed felony-murder (id.); armed first degree burglary (D.C. Code §§ 22-1801(a), -3202) (1989 Repl.); possession of a prohibited weapon, baseball bat ("PPW") (D.C. Code § 22-3214(b) (1989 Repl.)); and carrying a pistol without a license (D.C. Code § 22-3204 (1989 Repl.)) arising out of an altercation which ended with the shooting death of Kenneth Taylor ("decedent") on March 26, 1988, inside apartment 301 at 1438 Cedar Street, S.E. Appellant was tried separately in May 1989, and a jury returned guilty verdicts on the armed felony murder, the armed first degree burglary, and the PPW counts. The jury failed to reach verdicts on the remaining counts. Appellant raises a number of issues in his challenge to those convictions. We find that none justifies reversal and, accordingly, we affirm.

I.

As presented by the government, the sequence of events leading to the killing began and ended at the apartment of one Janice Settles at 1438 Cedar Street, S.E., a premises regularly used to ingest crack cocaine. Early in the day in question, Theodore Taylor arrived at the apartment with his girlfriend Tawanna Matthews ("Matthews"). Also present were Kirk Shephard ("Shephard"), Percy Settles (Janice's brother), Dwight Jones ("Jones"), and the decedent. Janice Settles, who had been out of the apartment, returned shortly after the arrival of Theodore Taylor and Matthews. An altercation broke out between Taylor and Shephard over the attentions of Matthews, and Janice Settles directed Taylor and Matthews to leave the apartment. They did as Janice Settles asked.

After the two left, those remaining began smoking crack cocaine. Some time later, from her window, Janice Settles saw Theodore Taylor, Kevin Marshall, and appellant descending some steps near where a neighbor, Mary Deloatch ("Deloatch"), lived. Taylor was carrying a baseball bat and the other two were walking with him. The three entered her apartment building and proceeded to her apartment where they gained entrance. *fn1 Taylor approached Shephard and struck him with the bat. Janice Settles then told the three to leave. Taylor and appellant complied; however, Kevin Marshall was unable to follow the other two out of the apartment because the door jammed.

Janice Settles further testified that decedent then appeared from a bedroom, and he and Kevin Marshall went at it. At this point Kevin Marshall had the bat in his possession and he struck decedent with it. The two then struggled over the bat and Kevin Marshall called out to appellant to come to his assistance. At that point Janice Settles went into a bedroom and saw nothing further. She did hear two shots after entering the bedroom.

Matthews testified that she was inside another apartment in the same building when she saw the group of three arrive at the apartment building and go to Janice Settles' apartment. She followed them and saw Theodore Taylor and Kevin Marshall gain entrance. She also witnessed Taylor and Kevin Marshall engage in altercations, first with Shephard and then with decedent. Kevin Marshall called out for appellant and he too entered the apartment. She then heard a single shot, and was then told by appellant to go downstairs. She complied with that order and then heard a second shot. Later she observed Taylor, Kevin Marshall, and appellant walk down the stairs together.

Jones testified he was present in the apartment and heard, but did not see, the fight. He heard appellant ask decedent several times to hand over the bat. A shot followed this demand. He then heard appellant again ask decedent for the bat; he then heard a second shot.

Percy Settles testified that during the fight over the bat, he saw appellant with a small silver gun in his hand which he fired, *fn2 causing everyone to scatter. Appellant then fired a second shot which prompted an exodus out of the front door. Percy Settles then discovered that decedent had been shot. Death followed shortly thereafter.

Deloatch testified that she observed three males descend the stairs near her home going in the direction of 1438 Cedar Street. One of the group was swinging a bat and "they were cursing and swearing. They were going to mess up somebody." She did not see their faces but saw them enter the apartment building and go up the steps. Not long after she heard two shots.

On his own behalf, appellant testified that, before the shooting, he saw Theodore Taylor emerge from a building carrying a baseball bat acting very angry. He and Kevin Marshall followed Taylor in an effort to stop him and retrieve the bat. He testified that he did not know why Taylor was angry and that neither he nor the other two were armed with a pistol. He followed Taylor to the Cedar Street apartment where he tried to act as a peacemaker. He also testified that immediately prior to the gunshots he and Kevin Marshall went into the hallway leaving Taylor inside. He denied killing the decedent.

The jury was instructed with respect to the armed felony murder, armed first degree burglary, and the PPW counts, on both principal offender and aider and abettor theories. The instruction for the premeditated and deliberated murder charge, however, was as principal offender only. The court declined a defense request for the self defense instruction for the armed felony murder count as an aider and abettor.

II.

Most of the issues raised by appellant require only brief Discussion. First, appellant claims the trial court erred by allowing Percy Settles to testify to what appellant characterizes as non-expert opinion. The witness first testified that he had seen appellant with a gun, that there was a lot of tussling, and that appellant then fired the gun. When asked where the first shot went, he replied, "Down to the floor, I think." Appellant claims this response constitutes opinion testimony which is inadmissible since the witness was not qualified as an expert. We do not agree. We note that an expended slug was in fact recovered from the floor and we are satisfied that the witness' response to the prosecutor's question was, at most, nothing more than an inference he had drawn from observations he actually did make. This inference was a natural and reasonable one to draw based upon the totality of the evidence, and we are satisfied that it did not constitute impermissible lay opinion evidence. Even if we were to accept appellant's characterization of the evidence, we conclude that under the circumstances the statement was unimportant and therefore not harmful to his cause. It was the fact that the gun was fired that is important to the government's case, not the direction of firing.

Second, appellant challenges the trial court's ruling that permitted Janice Settles to testify that she had seen a Derringer in appellant's possession about two months prior to the killing. At trial appellant objected to admission of this evidence on the grounds that it was inadmissible "other crimes" evidence under Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964). In this court he has abandoned the "other crimes" argument, but does challenge its admissibility on the grounds of relevance. We are satisfied that neither ground provides a sufficient basis for finding trial court error. We have held on several occasions that evidence of possession of a weapon on an earlier occasion by one later charged with using a similar weapon is probative, relevant evidence. Jones v. United States, 477 A.2d 231, 239 (D.C. 1984) (possession of pistol one month before shooting held admissible); Coleman v. United States, 379 A.2d 710, 712 (D.C. 1977) (photo of defendant with pistol five months earlier held admissible). The prior possession by an accused of the physical means of committing the charged offense is evidence of the probability of his guilt and is therefore admissible. Id. at 712. Moreover, the trial Judge here instructed the jury that the testimony regarding the prior possession of the Derringer could be considered only as evidence that appellant had the means to commit the charged offense. Under these circumstances we find no error in the trial Judge's admitting the testimony in question.

Third, appellant claims that the trial Judge erred when he permitted the prosecutor to impeach Matthews with her grand jury testimony after a claim of surprise. *fn3 Specifically, he argues that the government failed to establish, as required by our cases, that the testimony affirmatively damaged the government. Jefferson v. United States, 558 A.2d 298, 301 (D.C. 1989); Scott v. United States, 412 A.2d 364, 367-68 (D.C. 1980); see D.C. Code § 14-102 (1989 Repl.). We find no basis for that claim.

In her earlier report to police, and before the grand jury where she adopted those statements as her testimony, the witness stated that: she saw appellant step into the struggle between the decedent and Kevin Marshall over the bat; when the decedent declined to release the bat after being told to do so, appellant pulled a pistol from his pocket and pointed it at decedent's head; he then fired the pistol into the floor; and, he then directed her to leave the apartment. Finally, she had also identified appellant from a photo array as the person who had pulled and fired the gun. At trial she testified that she never saw appellant with a gun, that she had not identified him from the photo array as the shooter, and that at the time the first shot was fired he had both hands in his pockets. The effect of this testimony was to exonerate defendant as a principal in the shooting. See Price v. United States, 545 A.2d 1219, 1225 (D.C. 1988). It contradicted the testimony of Percy Settles, who had placed the gun in appellant's hand at the time of the firing of the first shot. It certainly affirmatively damaged the government's case, and there is no serious question that the prosecutor was surprised by the testimony. Accordingly, we find no error in the court's ruling that permitted the prosecutor to claim surprise and impeach its witness.

III.

At the Conclusion of the defense case, counsel asked the court for a ruling in limine with respect to whether it would permit the government to cross-examine a character witness concerning a previous arrest of the appellant for possession of a controlled substance (PCP). That arrest had taken place in March 1988. Appellant later pleaded guilty to attempted possession of a controlled substance in that case and was given a sentence of probation without judgment pursuant to D.C. Code § 33-541 (e) (1989 Repl.). The sentence was apparently vacated some time before this trial, because probation was successfully completed. *fn4 Counsel indicated the character witness would testify as to appellant's reputation *fn5 in the community for peacefulness and non-combativeness. *fn6 The trial Judge ruled that the witness could be cross-examined about appellant's drug arrest. Based upon that ruling, the defense elected not to present the testimony.

Appellant's argument to the trial court, repeated here, was that the arrest offense had no relationship to the character trait in question and therefore, it would be improper to allow the witness to be questioned about it. The trial court reasoned, however, that it is simply plain common sense that there is an unfortunate coexistence of guns, money, drugs and violence. Thus, he concluded there is a clear connection between the asserted character trait and the arrest offense. We agree.

We recently stated that "as has been often observed, drugs and weapons go together." Peay v. United States, 597 A.2d 1318, 1321 (D.C. 1991) (en banc); see, e.g. United States v. Payne, 256 U.S. App. D.C. 358, 361, 805 F.2d 1062 (1986)(collecting cases). Moreover, we have noted the "melancholy proposition" voiced by a police drug expert that "when you relate to drugs and guns, its like a marriage," Irick v. United States, 565 A.2d 26, 31 (D.C. 1989). We concluded that such testimony would be helpful to a jury. Id. We hold, therefore, that the trial Judge did not err in ruling that a character witness offered to testify concerning appellant's good reputation for peacefulness and non-combativeness can be questioned about appellant's arrest for possession of PCP *fn7 that occurred approximately one year before the offense for which he was on trial.

The government also argues that appellant should be precluded from even raising this issue since the prospective witness was never called to the witness stand. See Luce v. United States , 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). Luce dealt with an in limine ruling that the defendant could be impeached with certain prior convictions, a decision which caused the defendant to opt not to testify. On appeal he challenged the propriety of the trial court's ruling. The Supreme Court held, however, that in order "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Id . at 43.

The government argues here that appellant has not properly presented this issue since the witness did not testify. It points out, for example, that it is conjectural whether the witness would have testified consistent with the proffer or whether the government would have even elected to cross-examine the character witness concerning appellant's arrest. We note, with respect to the latter point, that there is nothing in the record indicating that the prosecutor contemplated asking the witness about appellant's arrest. The court assumed it would but in the thirteen pages of transcript dealing with the issue, the prosecutor gave no indication that was his intention.

At least one other problem is raised by the absence of concrete testimony from the witness. Counsel proffered that the witness had known appellant for "several" years, without elaboration concerning the time period of the relationship. The drug offense arrest occurred more than two years before the trial (i.e. a March 1988, arrest, versus a May 1990, trial). The witness may not have known appellant at the time of his arrest. *fn8 More significant, the community where appellant's reputation resided, may not have known him at the time of the arrest. Those factors may, or may not, have affected the trial court's ruling had he known of them. But, the failure to present them in a more precise proffer, or by the witness's actual testimony, prevented those uncertainties from being explored. Finally, of course, as the Supreme Court pointed out in Luce , unless the witness testifies and is questioned on the point at issue, any harmless error analysis would be difficult, if not impossible, to undertake. Id . at 42.

We do not need to reach the issue raised in Luce in this case, however, because we have concluded that the ruling allowing the question to be put to the character witness was proper. We express no view, therefore, on the applicability of Luce to this or other similar situations. *fn9

IV.

Finally, appellant challenges his convictions for burglary and PPW on grounds of evidence insufficiency. We note that appellant has not raised a like claim with respect to the felony-murder charge. Any attack upon the burglary conviction, however, is necessarily an attack upon the felony-murder charge since commission of the burglary is an element of felony-murder. Since the two offenses are linked, we will examine the sufficiency of the evidence for both offenses.

Appellant was charged with burglary, PPW, and felony-murder *fn10 as both a principal and as an aider and abettor. With respect to the latter theory, appellant is charged as being an accomplice to Theodore Taylor acting as principal. We have no doubt that a jury could reasonably find appellant guilty, beyond a reasonable doubt, on either basis. It is axiomatic that in weighing an evidence insufficiency claim, this court must view the evidence in the light most favorable to the government, draw all reasonable inferences from that evidence, and defer to the jury the right to weigh the credibility of witnesses. Wells v. United States, 515 A.2d 1108, 1111 (D.C. 1986).

In order to prove armed first degree burglary, the government must establish beyond a reasonable doubt, an armed entry (by appellant or by a principal aided and abetted by appellant) into an occupied dwelling with the intent to commit a crime therein. D.C. Code § 22-1810 (a) (1991 Repl.). *fn11 The intent to commit the crime inside the premises must have been formed by the time of the entry. Warrick v. United States , 528 A.2d 438, 442 (D.C. 1987). Intent is the state of mind of the accused at the time of entry which is ordinarily proved by circumstantial evidence. Shelton v. United States , 505 A.2d 767, 770 (D.C. 1986). Here, appellant was charged in the indictment, along with Theodore Taylor and Kevin Marshall, with entering the occupied premises of Janice Settles with "intent to commit an assault," and the jury was instructed that he could be convicted of that offense as either a principal or an aider and abettor.

The jury heard testimony that Taylor, having been angered by the events earlier in the day at the Cedar Street apartment, armed himself with a baseball bat and headed back to that address with the purpose of assaulting Shephard. En route he was joined by appellant and Kevin Marshall and, as a group, as they neared their destination, they were heard, by Deloatch, to be yelling, cursing and promising to "mess up" someone. *fn12 The trial Judge characterized the actions of the three as "pumping each other up." Deloatch herself could not identify appellant, or anyone else in the group, but her testimony, together with the testimony of Janice Settles and Tawanna Matthews, leads to a permissible Conclusion that the group doing the threatening was the same group, i.e. Theodore Taylor, Kevin Marshall and appellant, that arrived outside apartment 301 shortly afterward.

That group then gained entrance to the apartment and Taylor promptly assaulted Shephard. The assault upon Shephard led almost immediately to the intervention of the decedent, the momentary departure of Taylor and appellant, and the encounter between Kevin Marshall and the decedent. Kevin Marshall's call for assistance led to the return of Taylor and appellant to the apartment and their assistance to Kevin Marshall in his altercation with the decedent. Either Theodore Taylor *fn13 (aider and abettor theory) *fn14 or appellant himself (as principal) then inflicted the fatal wound.

The jury could permissibly conclude from the Deloatch testimony that Theodore Taylor, Kevin Marshall and appellant were determined to use the bat on Shephard. Thus, the intent to assault had formed by the time the three crossed the threshold of the apartment during the initial entry. In short, all of the elements of the burglary had been committed by the time the three entered the premises the first time. The burglary was a separate and distinct act from the killing. The burglary, however, "may be deemed to be a continuing offense for purposes of the felony-murder statute." Blango v. United States , 373 A.2d 885, 888 (D.C. 1977) (felony-murder committed where three men entered premises, walked up the stairs to the second floor, had a conversation with the decedent, then shot and killed him); accord , People v. Mason , 54 Cal. 2d 164, 4 Cal. Rptr. 841, 351 P.2d 1025 (1960) (felony-murder conviction upheld where killing occurred 20 hours after entry during which defendant lay in wait for victim). The jury was presented with an "unbroken chain of facts and circumstances which link" the burglary committed at the initial entry *fn15 and the homicide. Coleman v. United States , 111 U.S. App. D.C. 210, 215, 295 F.2d 555, cert. denied , 362 U.S. 813 (1962).

We are more than satisfied that these facts were sufficient to support verdicts of guilty for felony-murder, burglary and PPW. Wells, supra , at 1111; Blango, supra , at 888; Waller v. United States , 389 A.2d 801, 807 (D.C. 1988) (only intent to commit the underlying felony need be proven for felony-murder conviction). To be sure, some of the facts recited above were disputed or contradicted by the defense at trial. The jury, however, was free to accept the facts as set forth, as it obviously did by it's verdicts. Id . Accordingly, we are satisfied that there was sufficient evidence to support the guilty verdicts for burglary, PPW, and felony-murder.

Having concluded that no claim of error justifies reversal of the guilty verdicts, the convictions being appealed are hereby

Affirmed . *fn16

Ferren, Associate Judge , Dissenting in part and Concurring in the result only: Unraveling the twisted threads of this complicated murder case requires a thorough analysis of our felony-murder law. I believe the majority's two paragraph analysis on the sufficiency of the evidence for felony-murder, see ante at 13-15, falls short of the task. In an attempt to clarify what our law is, for purposes both of this case and of future cases, I undertake in Part I a detailed review of our precedents establishing the required elements to sustain a conviction for felony-murder under principal and accomplice theories of liability, respectively. In Part II, I review in detail the government's evidence in this case under each of those theories. In Part III, I briefly state my other concerns about the majority opinion.

I. The Felony-Murder Doctrine

As the Supreme Court of Michigan has observed, "the existence and scope of the felony-murder doctrine have perplexed generations of law students, commentators, and jurists." People v. Aaron , 409 Mich. 672, 299 N.W. 2d 304, 306 (Mich. 1980). "Historians and commentators have concluded that the rule is of questionable origin and that the reasons for the rule no longer exist, making it an anachronistic remnant. . . ." Id . at 307. See generally id . at 307-16 and sources cited therein (discussing history of the doctrine, including statutory and judicial limitations of it); W. LAFAVE & A. SCOTT, 2 SUBSTANTIVE ยง 7.5 (d), at 206-21 (1986) (same). The felony-murder doctrine is an anomaly in the law of homicide because the government is not required to prove the defendant had the mens ...


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