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11/04/93 HERMAN ELLIOTT v. UNITED STATES

November 4, 1993

HERMAN ELLIOTT, APPELLANT
v.
UNITED STATES, APPELLEE. TROY R. NERO, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Stephen F. Eilperin, Trial Judge)

Before Terry and Wagner, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Following a jury trial, appellants, Troy R. Nero and Herman Elliott, Jr., were convicted of first degree murder while armed (D.C. Code §§ 22-2401, -3202 (1989)), possession of a firearm during a crime of violence (D.C. Code § 22-3204 (b) (1993 Supp.)), and carrying a pistol without a license (D.C. Code § 22-3204 (a) (1993 Supp.)). These offenses arose out of the fatal shooting of Anthony Kearney on March 13, 1990. Appellant Nero argues for reversal principally on the ground that the trial court committed constitutional error and abused its discretion in precluding him from cross-examining the sole eyewitness to elicit bias and the witness' personal motive for committing the murder. He also contends that the court abused its discretion in (1) denying his motions for severance, which he made to avoid any prejudice to his co-defendant by reason of the proposed cross-examination and/or to eliminate prejudice to himself as a result of the admission of his non-testifying co-defendant's statements, (2) denying a requested jury instruction after a jury poll revealed that the verdict reported initially was not unanimous, and (3) admitting evidence of his drug use. Appellant Elliott argues that the trial court erred in denying his motion for severance because the evidence against his co-defendant was far greater than the evidence against him. Finding no reversible error, we affirm.

I.

A. Evidentiary Background

The government's evidence showed that on March 12, 1990 at approximately 10:40 p.m., appellant Nero, while accompanied by Melvin Smith, shot and killed Anthony Kearney in an alley behind 1615 Rosedale Street, N.E., Washington, D.C. *fn1 The thrust of the government's case was that Nero killed Kearney at appellant Elliott's behest because Kearney was interfering with Elliott's drug distribution business by robbing his customers. According to one witness, Nero said that Elliott was going to pay him and Smith two $50 rocks of crack cocaine for the murder.

This plot was disclosed essentially through the following evidence presented by the government. Nero, Elliott, Smith, and Kearney all knew each other and had spent time in the neighborhood where the murder occurred. One to two weeks prior to the shooting, Elliott approached an acquaintance, Terry Howard, and asked whether she, her sister and Kearney "were sticking up people in the alley" behind Rosedale Street. Howard denied the accusation, but Elliott warned her that "they had better stop" or "he was going to f up." Two days before Kearney was killed, he borrowed a .357 magnum revolver from someone and traded it with appellant Elliott for some crack cocaine. While at the home of Arlene Mercer *fn2 the next night, Elliott pointed a .357 magnum at Brenda Thomas and Keisha Cooper, Mercer's neighbors, and accused them of "trying to set him up with ."

The following night, Cooper, Thomas, Veronica Anthony, Sadie Chatmon, and Kearney were at Chatmon's house at 606 17th Street, N.E. Appellant Nero came by and asked Kearney in their presence whether he was "going out to get his man," i.e., was he going to commit a robbery that night, and Kearney said that he was not. Later, Nero was alone with Anthony, and he told her that Elliott was going to pay him and Melvin Smith two $50 rocks of crack cocaine for killing Kearney and that they "were going to get their man . . . were going to do ." Later that evening Nero, Elliott, and Smith were leaving Arlene Mercer's house when Terry Howard heard them say, "let's go get to go to the store with us," and they went back to Chatmon's house to find him. Several witnesses overheard a conversation in which appellant Elliott asked Kearney why he was trying to set him up to be robbed. Sadie Chatmon said she saw a gun in Nero's waistband while alone with him at some point.

Later that night Elliott induced Kearney to go out to steal some shrimp from a Safeway store by promising to trade him some crack cocaine for the shrimp. Nero, Elliott, and Smith left the house a short time later, and within minutes, Kearney followed them. Smith and appellant Nero returned to Mercer's house, and Nero told Smith that he "was going to do" Kearney.

According to Smith's testimony, he and Nero were walking in the alley behind 1615 Rosedale Street when Kearney caught up with them and asked where they were going. They told him they were going to the "bootlegger." Smith testified that while the three were walking in the alley, Nero "pulled out a gun and shot ," and Smith and Nero ran in opposite directions out of the alley.

Brenda Thomas, Sadie Chatmon and Veronica Anthony heard gunshots in the alley and saw appellants Elliott and Nero running in the alley a short time after that. Chatmon testified that about this time she heard Elliott tell Nero to "jump the fence." Anthony said she heard Elliott tell Nero to meet him around back. Keisha Cooper testified that she saw Nero and Elliott in the alley after hearing the gunshots and that Elliott had a gun in his hand. Another witness, Tameshia Fowler, said she heard the shots and saw Nero and another person running down the street.

Arlene Mercer testified that Melvin Smith and appellant Nero returned to her house later that night, "huffing and puffing." About two hours later, appellant Elliott joined them, and Elliott asked Smith and Nero, "Did you do him?" Smith answered "yes" and added, "I could take you to where he is." Appellant Elliott then said, "Kill him for 50 of the rock, 50 of the crack." Tameshia Fowler overheard this conversation, and she saw something heavy and black or brown in Nero's sweatshirt pocket. Fowler also overheard a conversation between Smith, Nero, and Elliott during which one of them said something about "getting paid" for having "done it or done something."

At 4:55 a.m. the morning after the shooting, Nero, Smith, and another person were stopped by the police who were responding to reports of an armed robbery in a mall about three blocks from the scene of the murder. At that time, Smith pulled a .357 magnum revolver out of his pocket and threw it to the ground. Smith testified at trial that the weapon belonged to Elliott.

Tameshia Fowler testified that the day after the shooting appellant Elliott approached her and asked if she had gotten into a detective's car to "snitch." He threatened "to blow up house" if she did. A couple of weeks later, Elliott visited Terry Howard and asked her if she had seen Brenda Thomas, since Thomas "was testifying against on killing ." Howard then asked Elliott if he had killed Kearney. Although Elliott denied it, he did tell Thomas that Kearney stole $5000 and Elliott's gun. *fn3

B. The Taking of the Jury's Verdict

During jury deliberations, the jury sent a note to the court stating that it had "reached a decision." In open court, the foreperson returned a verdict of guilty on each charge, for each defendant. At appellants' request, the court polled the jury, and the first six jurors agreed with the verdicts as stated by the foreperson. The seventh juror stated that he did not. The trial court immediately sent the jury back to the jury room, instructing them not to discuss the case further until they heard from the court. Counsel for both appellants moved for a mistrial, claiming that the resumption of deliberations would have a coercive effect on the jury. The trial court allowed the jury to continue to deliberate. Before doing so, in an effort to make it clear that any juror could change his or her vote, the trial court reinstructed them substantially in accordance with CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. ...


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