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03/05/93 FRANK R. CURINGTON v. UNITED STATES

March 5, 1993

FRANK R. CURINGTON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Ricardo M. Urbina, Trial Judge)

Before Schwelb, King, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge : Appellant, Frank R. Curington, was tried by a jury and convicted of second-degree murder while armed in violation of D.C. Code §§ 22-2403, -3202 (1989) in the shooting death of Dilante Troy Cliette. He was also found guilty of possession of a firearm during a crime of violence or dangerous offense in violation of D.C. Code § 22-3204 (b) (1992 Supp.) and of carrying a pistol without a license in violation of D.C. Code § 22-3204 (a) (1989 and 1992 Supp.).

In this appeal, appellant raises two principal issues. First, we consider whether appellant's convictions must be reversed for failure of the trial court to instruct the jury on the statutory definition of a pistol. *fn1 We also consider whether the evidence was sufficient to sustain appellant's convictions. We affirm.

I.

The government's evidence showed that appellant fatally shot Cliette on June 30, 1989. The shooting occurred as the culmination of an escalating series of violent confrontations among several youths, including a heated encounter earlier the same day involving appellant, the decedent, and Bernard Battle. Also present during the earlier encounter was David Campbell, who had accompanied Cliette and Battle to the home of Patrice Cooper, where appellant was staying. That night, while appellant was standing in the rear doorway of a building at 2309 Galen Street, Southeast, he saw Cliette and Campbell pass by twice. The second time he saw them, he fired three shots at Cliette, killing him. Cliette died on July 3, 1989. Dr. Vincent Ellis Hill, Deputy Medical Examiner for the District of Columbia, testified at trial that the official report of the autopsy he performed on Cliette states that the cause of death was "gunshot wound of head."

Appellant testified on his own behalf, claiming self-defense. He said he awoke on June 30, 1989, to find Cliette pointing a "gun . . . in face." He said that he heard Cliette tell Battle that "they should shoot now," but that since "other people in the house, . . . they [weren't] going to do it." Appellant also testified that shortly thereafter, he went out to the front porch, where Cliette challenged him to fight and he agreed, following which Cliette said, "win or lose, [he intended] to shoot anyway." *fn2 Appellant testified further that just before he shot Cliette that same evening, he saw Cliette turn into a parking lot to walk toward him, after which Cliette put "his hands in his pocket" and began "looking to his right . . . to his left." Appellant stated that he then " a gun . . . grabbed it and . . . shot." He said he "shot because was scared at the time . . . and didn't know what was going on." In response to a question by defense counsel, appellant acknowledged that he thought Cliette had a gun because he had seen him pull out a gun on two prior occasions. He stated further: "I shot the gun, I think, three times. I just pulled the trigger three times."

The weapon used in this case was never recovered. *fn3 Nonetheless, in the government's case in chief, the jury heard appellant's taped statement to police, *fn4 in which he admitted shooting Cliette with what he believed was a ".38." Moreover, in addition to appellant's own testimony before the jury that he shot Cliette, Campbell, who identified appellant at trial, also provided eyewitness testimony of the shooting. He stated on direct examination that as he and Cliette passed near the place where appellant was standing on Galen Street on the night of June 30, 1989, " started shooting. , -- the bullet went through his head and he went on the cement. I looked at him. He started shooting at me, too, and I ran down the hill." In response to a question as to how many shots were fired, Campbell testified: "It was 3 at first. The one that hit Troy, it sounded like it was ricocheying off the fence because it wasn't a straight shot." Asked how many shots were fired after the first three, he said: "Another 3, 3 more."

II.

Appellant contends that the trial court committed plain error as to all charges for which he was convicted by omitting from its final jury instructions the statutory definition of pistol. The indictment alleged that, inter alia, appellant committed murder while armed with a pistol ; that he possessed a firearm, namely a pistol, during a crime of violence; and that he carried a pistol without a license. The thrust of appellant's argument is that the jurors could not determine if the prosecution had proved what was alleged, unless they were told what a pistol was, and that this instructional omission in the present case was fatal. Appellant, however, failed to object to the alleged instructional omission at trial.

Super. Ct. Crim. R. 30 provides in relevant part:

No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.

As we said in Deneal v. United States, 551 A.2d 1312, 1316 (D.C. 1988):

The purpose of [Super. Ct. Crim. R. 30] is to give the trial court the opportunity to correct errors and omissions which otherwise might necessitate a new trial, thus discouraging ...


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