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10/14/93 ERIC N. GIBSON v. UNITED STATES

October 14, 1993

ERIC N. GIBSON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Trial Judge)

Before Terry, Steadman, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellant Gibson was convicted of assault with a dangerous weapon, *fn1 possession of a firearm while committing a crime of violence, *fn2 carrying a pistol without a license, *fn3 possession of an unregistered firearm, *fn4 and unlawful possession of ammunition. *fn5 His main contention on appeal is that the trial court abused its discretion when it refused to grant a continuance of his trial. He also argues that the court committed plain error when it failed to declare a mistrial sua sponte in response to certain testimony. We affirm.

I

A. The evidence at trial

At about 4:00 p.m. on April 2, 1991, Martin Jenkins, Robert Wade, and Christopher Owens were walking along Florida Avenue on their way to a playground in the 1400 block of V Street, N.W. As they neared the playground, they decided to stop at a telephone booth on Florida Avenue to call another friend named Paul and invite him to join them for a game of basketball. The phone was then being used by another young man, and appellant Gibson was standing nearby, apparently waiting for the phone conversation to end. Jenkins, Wade, and Owens were all acquainted with Gibson. *fn6

Jenkins remarked, to no one in particular, that he would be able to use the telephone when Gibson's friend had completed his call. Gibson, however, apparently took offense at Jenkins' comment and asked Jenkins what he would do if his friend did not get off the phone. The Discussion quickly escalated into a "very unfriendly" argument, but no blows were exchanged. Gibson's friend then finished his phone call, and he and Gibson left through an alley. As they walked away, Gibson said, "I'll be back."

Jenkins then called his friend Paul and arranged to meet him near the phone booth. While Jenkins and his friends waited for Paul, Gibson returned with another companion (not the same one who had been using the phone earlier). After "mumbling something" from across the street, Gibson suddenly drew a gun. Jenkins said, "If you pull that gun, you better use it," whereupon Gibson fired it once directly at Jenkins, striking him in the ankle. When Gibson tried to shoot again, however, the gun failed to fire. Both groups then ran away. Jenkins later received treatment for his wound at Washington Hospital Center, and at trial he testified that he still felt "a little pain" from the injury.

Jenkins, Wade, and Owens all positively identified Gibson in court as the shooter, to the exclusion of all others, including Gibson's brother. In addition, a detective testified that Jenkins selected Gibson's photograph from an array of nine photographs and identified the man in the picture as his assailant.

Gibson testified that he knew both Wade and Owens and had a friendly relationship with each of them. Although he did not know Jenkins, he admitted having seen him occasionally and believed that there was no animosity or bad feeling between himself and any of the three government witnesses. Gibson could not recall where he was at the time of the shooting, but he denied ever firing or even possessing a gun.

B. The request for a continuance

When the case was first called for trial on Thursday, January 23, defense counsel told the court that "within the last twenty minutes [he had] listened to the radio run in this case and that on the tape recording there was a reference to the possible involvement of twins. Consequently, counsel said, "it may be necessary" to move for a continuance to investigate a potential conflict of interest. Counsel informed the court that he currently represented both Gibson and his brother, Kenneth Williams, and that the two of them looked very much alike, although they were not twins. He expressed concern that a potential conflict of interest might arise if he had to call Gibson's brother as a witness. After a brief Discussion with both counsel, the court decided to take testimony from the officer who made the radio broadcast because there might be a Brady issue *fn7 in the case.

Officer Vernon Bailey testified that on April 2, 1991, between 3:00 and 3:30 p.m., he heard over the radio a lookout for a pair of twins who might have been involved in "something to do with drugs" on Belmont Street, N.W. Since he was on scooter patrol at the time, he rode over to Belmont Street, which was only a block away, to assist the officers who were investigating "the twins incident." Officer Bailey never found the twins, nor did he know who they were or whether any other officers had arrested them. *fn8

About an hour later, shortly after 4:00 o'clock, Officer Bailey was "making a business check" in a liquor store at 14th and W Streets when John Jenkins, the brother of the shooting victim in this case, approached him and reported that his brother Martin had been shot. Officer Bailey, recalling the prior incident on Belmont Street, and aware that John Jenkins knew "everyone in the neighborhood," asked him if "the twins" were involved. Jenkins replied, "I don't know, they could be." *fn9 Bailey radioed a scout car on Belmont Street and asked the responding officer to find out whether the twins had been apprehended so that they might be brought to him for a possible ...


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