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11/24/92 KELVIN FORD v. UNITED STATES

November 24, 1992

KELVIN FORD, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Eugene N. Hamilton, Trial Judge)

Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Kelvin Ford was convicted by a jury of two counts of assault with intent to kill while armed, *fn1 one count of possession of a firearm during the commission of a crime of violence, *fn2 three misdemeanor weapons offenses, *fn3 and one count of obstruction of Justice. *fn4 On appeal, he presents several contentions, only two of which require plenary consideration. Ford asks us to reverse all of his convictions on the ground that the trial Judge erroneously excluded testimony which, in conjunction with other proffered evidence, would have proved an admission by Ford's former codefendant, Andre Armstrong, that Armstrong, and not Ford, was the man who shot the two complainants. *fn5 Ford also challenges his conviction of obstruction of Justice upon the ground that the alleged criminal conduct occurred in Maryland and not in the District of Columbia.

We agree with Ford that testimony regarding Armstrong's alleged admission was erroneously excluded, but conclude in light of other defense evidence that the error was harmless. We also hold that the Superior Court has jurisdiction over prosecutions for conduct in Maryland which is designed to bribe witnesses in District of Columbia proceedings and thus to obstruct the administration of Justice in the courts of the District of Columbia. Accordingly, we affirm.

I

THE FACTS

This case arises out of the shooting of Gregory Grant and Alexis "Boo" Caston on October 4, 1989, as the two young men *fn6 sat in a stationary automobile at an intersection in southeast Washington, D.C. Kelvin Ford and Andre Armstrong were arrested and charged with the crime. Armstrong eventually negotiated a plea agreement with the government and testified against Ford at trial.

According to the prosecution's evidence, Grant was the owner of a wrecked Volkswagen Rabbit. Armstrong had a stolen car for which he needed a Vehicle Identification Number (VIN) and title. Grant sold Armstrong the VIN and title, as well as some parts, for $175. Ford, who was then a friend of Armstrong, facilitated the transaction by taking the money from Armstrong, handing it to Grant, and turning the title and VIN over to Armstrong.

Subsequently, Ford informed Armstrong that Grant had told some residents of the neighborhood about the transaction, and had thus disclosed that Armstrong was driving a stolen car. As a result, Armstrong felt compelled to discard the vehicle for which, at considerable expense, he had obtained the false VIN and title. The disclosures by Grant infuriated Armstrong and Ford, and the two men discussed revenge by annihilation. *fn7 They then converted their words into deeds.

Armstrong testified that on October 4, 1989, he visited Ford at his home. According to Armstrong, Ford put a .38 caliber revolver in his waistband, and the two men left Ford's home to look for Grant. When they finally observed Grant and Caston in Grant's car, talking to some passersby, they decided to "get" Grant. Armstrong parked his jeep in front of Grant's car. Ford got out of Armstrong's vehicle, walked towards Grant's, drew his revolver, and fired several shots through Grant's windshield. Grant suffered wounds to the face, shoulder and chest; at the time of trial, one bullet remained in the back of his head and a second under his shoulder. Caston ducked, but was struck in the left forearm.

In statements to police at the scene and at the hospital, and consistently thereafter, Grant identified Ford as the man who shot him. Caston initially told prosecutors that Armstrong was the gunman, and he identified Armstrong (but not Ford) at a lineup. At trial, however, he testified that Ford was the shooter, and that he (Caston) had previously lied because Ford had bribed him to put the blame on Armstrong. *fn8 According to Caston, Ford offered to pay off his motorcycle and later gave Caston a pistol. Through Renard Kroger, a friend of Ford's who worked with Caston, Ford also provided Caston with photographs of Armstrong, whom Caston did not know, in order to facilitate Caston's proposed false identification of Armstrong as the man who shot him and Grant. *fn9 It is undisputed that all of the alleged bribery took place in Maryland.

Ford's defense was alibi. Testifying on his own behalf, Ford denied that he had any connection with the shooting or with the obstruction of Justice. Ford stated that on the night of the shooting, while he was at home with his friend Gertrina Bradford and his young son, Armstrong had come to his home and had acknowledged to Ford that he (Armstrong) had shot Grant. Ford also presented the testimony of two other witnesses, Robert Staton and David Henderson, who claimed that Armstrong had made similar admissions in their presence. In addition, Ford attempted to adduce testimony from Ms. Bradford that she heard a man whose identity she did not know (but whom Ford identified as Armstrong) make a similar admission. The trial Judge, however, excluded testimony about what the declarant said, on the ground that Ms. Bradford was unable to identify him.

II

THE RESTRICTION ON MS. BRADFORD'S TESTIMONY

A Procedural Background

Gertrina Bradford testified that she had known Ford for several years because the two of them had been co-workers at the Army Corps of Engineers. She said she and Ford were close friends, although there was no romance between them "as of now."

On the evening of October 4, 1989, according to Ms. Bradford, she was visiting Ford at his apartment. After she had been there for some time, there was a knock on the door. Ms. Bradford stated that she retired to the bedroom in order to enable Ford to entertain the visitor in privacy. Ms. Bradford then heard a man, whose voice she was unable to recognize, speak in a loud voice to Ford. She was about to describe what the man said, but the prosecutor objected. The objection was based solely on the ground that "the witness is not competent to answer that question." The trial Judge sustained the objection. Ms. Bradford was thus precluded from describing what she had heard. She did testify, however, that after the two men spoke briefly, the visitor left. She and Ford then watched the television show "City Under Siege" on Channel 5. *fn10

On cross-examination, the prosecutor cross-examined Ms. Bradford intensely about how often she had been in Ford's apartment and how she remembered the particular evening. On redirect examination, defense counsel again asked her about the conversation which she had overheard, and the Judge again sustained a prosecution objection. At the bench, Ford's counsel argued that

the prosecutor's making it seem like she's made this up and she can't remember this particular day. Well, because Mr. Armstrong, or the other male voice, comes over and says he thought he just killed somebody, that allowed her to remember the day, but it's not coming in for the truth asserted in the statements. It's coming in to show how she remembers that day. That's a truly significant event.

The prosecutor responded in pertinent part that

this statement is being offered for nothing but the truth contained in that statement. He wants the jury to believe that it was Andre Armstrong who made that statement and this witness is simply not competent to testify as to that.

The Judge then stated that "the problem is that this witness, herself, cannot testify that Andre Armstrong made this statement." The prosecutor's objection and the Judge's ruling were thus based entirely on Ms. Bradford's inability to identify Armstrong, and not at ...


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