Appeals from the Superior Court of the District of Columbia; (Hon. Steffen W. Graae, Trial Judge)
Before Ferren, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Samuel Outlaw was convicted by a jury of second-degree murder while armed, D.C. Code §§ 22-2401, -3202 (1989), possession of a firearm during a crime of violence (PFCV), § 22-3204 (b), and carrying a pistol without a license (CPWOL), § 22-3204 (a). At the same trial, Noah Outlaw, Samuel's older brother, was convicted of being an accessory after the fact (AAF) to second-degree murder while armed, D.C. Code § 22-106, and of CPWOL. The two brothers' prosecutions followed the fatal shooting of Walter Jones on a parking lot basketball court in southeast Washington, D.C. on March 3, 1990. Samuel Outlaw was then sixteen years old, and looked much younger; Noah Outlaw was eighteen.
On appeal, Samuel Outlaw challenges several evidentiary rulings by the trial Judge and claims that he was denied a fair trial as a result of improper prosecutorial argument. We are not persuaded by any of his contentions, and we affirm his convictions without plenary Discussion. *fn1 We also summarily reject Noah Outlaw's claim that the evidence was insufficient to support his CPWOL conviction. *fn2 We reverse Noah Outlaw's AAF conviction upon the ground that the evidence was insufficient to prove that he was an accessory after the fact to murder or to any lesser included offense.
The prosecution presented evidence tending to show that at approximately 11:00 a.m. on the day of the murder, Samuel Outlaw was arguing with Walter Jones over a $20 debt which Samuel claimed that Jones owed him. Jones said he did not have any money. Samuel Outlaw left and went into a nearby apartment building. He soon emerged with a small silver-colored pistol in his hand. Samuel Outlaw complained to Jones that "you ain't going to pay me my fucking money, man," and fired the handgun into Jones' neck. Jones grabbed his throat and began gasping for air. Jones' half-brother, Anthony Ferguson, held Jones and attempted to assist him.
At some point during this tragic encounter, but apparently after Samuel Outlaw fired the shot, Noah Outlaw arrived on the scene. Jones was still alive. Samuel Outlaw handed Noah Outlaw the pistol. Noah Outlaw profanely reprimanded his brother because the latter had not killed Jones. *fn4 He then placed the pistol in his pocket and began to walk towards Jones in a manner that at least two witnesses perceived as threatening. *fn5 Several individuals immediately interceded, and Noah "chilled" and backed off, apparently because police officers were arriving on the scene. Noah Outlaw returned the handgun to Samuel, who left the area. One witness testified that Noah had previously stated that his brother was to "go to aunt somebody's house." Noah Outlaw remained on the scene and watched the police officers as they investigated the shooting. One of the witnesses pointed Noah Outlaw out to the officers, and Noah was arrested.
Noah Outlaw testified that he and his sister's friend, Diane McBride, were visiting a neighbor's apartment when Noah heard a shot. He and Ms. McBride came outside and saw Walter Jones collapse on the basketball court. Noah denied that he took a handgun from his brother, or that he had been in possession of a gun at all on that day. He further denied having seen his brother on the scene, or having approached Walter Jones in a threatening manner or otherwise. Ms. McBride substantially corroborated Noah Outlaw's testimony. *fn6 Obviously, however, the jury did not believe the defense version of events.
THE ACCESSORY AFTER THE FACT CONVICTION
At the Conclusion of the prosecution's case, Noah Outlaw's trial attorney moved for a judgment of acquittal with respect to the AAF count upon a single ground, namely, that all of Noah's Outlaw's alleged unlawful conduct occurred while the decedent was still alive, and that Noah therefore could not be an accessory after the fact to murder. No other insufficiency claim has been made on Noah Outlaw's behalf, either in the trial court or in his appellate counsel's brief on appeal. At oral argument, however, members of the court raised, on their own initiative, the question whether the evidence was sufficient to support Noah Outlaw's conviction of AAF to any offense whatever. After argument, the court entered an order inviting the parties to file supplemental memoranda addressing this issue. The prosecution did so; appellate counsel for Noah Outlaw did not. We now conclude that the evidence was insufficient to support a conviction of accessory after the fact to murder or to any lesser included offense. *fn7 We do not reach the principal question briefed by the parties, namely, whether one may be convicted of being an accessory after the fact to murder on the basis of actions taken while the decedent was still alive. *fn8
The District's AAF statute provides in pertinent part as follows:
Whoever shall be convicted of being accessory after the fact to any crime punishable by imprisonment shall be punished by a fine or imprisonment, or both, as the case may be, not more than one-half the maximum fine or imprisonment, ...