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07/21/92 SEAN B. BUTLER v. UNITED STATES

July 21, 1992

SEAN B. BUTLER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Gladys Kessler, Trial Judge)

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

The opinion of the court was delivered by: Terry

TERRY, Associate Judge:

A grand jury charged appellant Butler and a co-defendant *fn1 with two counts of kidnapping while armed, *fn2 one count of assault with a dangerous weapon (ADW), *fn3 and two counts of first-degree felony murder while armed. *fn4 Butler was also charged with one count of first-degree premeditated murder while armed, *fn5 and carrying a pistol without a license. *fn6 A jury found Butler guilty on all the charges except first-degree premeditated murder, as to which he was found guilty of the lesser included offense of second-degree murder. On appeal he challenges the voluntariness of a statement he gave to the police, the trial court's redaction of certain portions of that statement, the court's refusal to sever his case from that of his co-defendant, the admissibility of a dying declaration made by the murder victim, the sufficiency of the evidence as to certain counts, the instructions on felony murder, and the trial court's sentencing scheme. We reject all of Butler's claims of error and affirm the judgment of conviction.

I

Frances White lived in a house on I Street, N.E., with her eighty-three-year-old grandmother, Rosa White. The grandmother rented rooms in her house to Michael King, Sterling Queen, and Carroll Hawkins. Frances White had a strong dislike for Hawkins because he "felt as though the house was his and he wanted to rule everything and everybody." On March 29, 1989, White had a heated argument with Hawkins, but her grandmother intervened and suggested that she go out for a while to calm herself down. White agreed and went to visit an aunt.

Early the next morning White returned home with her friend Gary Stuckey. Another aunt, Gwen Taylor, who also lived in the house, returned at about the same time. Rosa White was not at home, however, and some of her clothing was missing. Frances White learned from King and Queen that her grandmother had packed some clothes and left in a cab with Hawkins. Worried about her grandmother, White went to a nearby store to call the police. There she met appellant Butler, whom she knew from the neighborhood, and a friend of his, Joseph Cunningham, who worked at the store as a security guard. Butler and Cunningham offered to help in the search for White's grandmother and went back to the house with White.

Shortly thereafter the police arrived in response to White's call. They questioned all who were present *fn7 and then left, saying they would be back in a few minutes. Queen then tried to leave, but Hayes ordered him to stay. When the police returned to ask more questions, Queen complained that Hayes would not let him leave. After the police left again, Hayes hit Queen with Queen's cane because he was angry that Queen had complained to the police.

White suspected that King knew more about her grandmother's whereabouts than he was admitting. The assembled group decided to interrogate him further. They asked him what the grandmother and Hawkins had been talking about just before they left, and when King said he had not heard their conversation, Hayes hit him with his fist. Hayes then handed to Cherry a .32 caliber pistol *fn8 which he had in his pocket, and Cherry threatened to "do" King with it "if he didn't tell us what we wanted to know." Hayes then took the pistol back from Cherry. At about the same time, White saw Butler reach behind his back and pull out a short-barreled pistol, which White recognized as a .38 caliber revolver.

King finally mentioned an address where he thought White's grandmother might have gone, and Taylor, Cunningham, Cherry, and Stuckey left to see if the grandmother was there. This left Butler, Hayes, and White alone in the house with King and Queen. Queen was told to keep his eyes shut, and on one occasion when he opened his eyes, either Hayes or Butler struck him with an object (Queen thought it was his own cane), causing him briefly to lose consciousness. His shirt by this time was drenched with his blood.

White and Hayes moved King into the living room. Butler took the bullets out of his gun and then held the gun to King's head while pulling the trigger until the firing mechanism "clicked." White urged him to stop, saying, "You don't have to put the gun to his head, don't do that." *fn9 White then went out to get some cigarettes. As she left the house, she asked Butler not to do anything else to King "as far as hitting him or anything" until she returned.

At about 3:30 a.m. four off-duty police officers, including S.T. Vines, drove into the neighborhood to visit Vines' brother, who lived across the street from White's house. As they approached Vines' brother's house, the officers heard someone moaning and stopped the car. Officer Raymond Harris got out of the car and saw Butler and Hayes leaving the house where the moaning had come from. Both Butler and Hayes had guns in their hands. When Harris pointed them out to his companions, Butler and Hayes started to run down the street. The officers pursued them, but they ran into an alley, climbed over a fence, and disappeared. As they fled, Hayes fired his gun at one of the officers.

Frances White was returning to the house with her cigarettes when she heard a shot and saw two of the police officers in a car in the alley. White then ran inside the house, where she found King lying on his back, wounded. Butler and Hayes were gone. King told White, "They shot me." Queen was in the house, still sitting on the couch with his eyes closed, but he did not know who shot King. King died later that day from a single gunshot wound, caused by a bullet from a .38 caliber revolver. The evidence established that the bullet could not have come from a .32 caliber gun.

Two days after the shooting, Butler came to White's house and told her that "his conscience was bothering him about what he did." Butler then admitted that he "shot that man." The police learned that Butler had knowledge of the crime and asked him to make a statement. Butler gave the police a videotaped statement on April 3, but he was not arrested until April 26.

II

Butler moved before trial to suppress his videotaped statement on the ground that it was involuntary. After a hearing, the court denied his motion. Butler argues that this ruling was error, contending here, as he did below, that his statement was coerced by police threats to arrest him if he did not give a statement.

The hearing on Butler's motion to suppress his statement began in the morning of the first day of trial, before the jury was sworn. Detective Willie Jefferson testified that on April 3 he and Detective Julia Crosby went to the house where Butler lived with his mother and grandmother. According to Jefferson, Butler agreed to accompany them to the police station and make a statement. Jefferson said that he and Detective Crosby "would have left" if Butler had refused to accompany them. Jefferson also testified that he told Butler at the police station that he was not under arrest and that he would be free to leave after he gave a statement. Detective Jefferson stated that Butler was free to leave at any time during questioning, although he was never asked whether he had actually told this to Butler:

Q. Had he told you that he didn't want to talk to you any longer, what would you have done?

A. Let him get up and walk out. It has happened before.

Q. And why would you have done that?

A. Because I didn't have anything -- I could not have charged Mr. Butler. I had nothing to charge him with.

On cross-examination Jefferson denied telling Butler that he would be arrested if he did not give a statement, and denied promising Butler that he "wouldn't be locked up" if he gave a statement.

Butler's grandmother, Ann Richardson, testified that when the detectives arrived at her house on the evening of April 3, they told Butler that he would be arrested if he did not accompany them to the police station, but that he would not be arrested if he went with them. Butler himself testified that Detective Jefferson told him that he would be arrested if he did not go with them, but that ...


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