Appeal from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess Jr., Trial Judge)
Before Terry, Schwelb, and Sullivan, Associate Judges.
The opinion of the court was delivered by: Sullivan
SULLIVAN, Associate Judge: Appellant, Recco Bouknight, was convicted of first-degree murder while armed (felony murder), D.C. Code §§ 22-2401 and 3202 (1989), first-degree burglary while armed, id. §§ 1801 (a) and 3202; attempted robbery while armed, id. §§ 2902 and 3202; carrying a pistol without a license, id. § 3204 (a) (1993 Supp.); and possession of a firearm during a crime of violence, id. § 3204 (b) (1993 Supp.). *fn1 On appeal, appellant contends that the trial court committed reversible error by (1) giving the jury a supplemental instruction with a new theory of liability after deliberations had begun and thereafter limiting the scope of supplemental argument with respect to that instruction; (2) failing to declare a mistrial after a witness refused to testify in front of the jury; and (3) failing to adequately correct prosecutorial impropriety. Finding no error, we affirm.
On the evening of November 13, 1989, Lloyd Thomas was robbed and fatally shot in the apartment of Angela Mercer in Southeast Washington. Sometime after the shooting, Mr. Thomas' body was thrown out of the apartment window. After receiving an anonymous 911 call regarding the shooting and disposal of the body, the police arrived at the scene shortly after midnight and found Mr. Thomas' lifeless body lying in front of the apartment building.
The government's case against appellant consisted of his signed confession and the testimony of an eyewitness to the murder, Angela Mercer ("Mercer"). According to Mercer's testimony, on the night of the murder, Lloyd Thomas was visiting her in her apartment when the appellant knocked at her door and asked if she had company and if her company had money. Mercer let appellant in the apartment, but told him not to do anything to Thomas. They talked briefly in the kitchen while Thomas remained in the bedroom. Appellant then went to the front door of the apartment, at which time Mercer believed he was leaving. However, when appellant reached the door, he let three of his friends in Mercer's home. Mercer testified that one of the men handed appellant a gun, and the group headed for the bedroom. As she followed the group toward the bedroom, she yelled a warning to Thomas. When she reached the bedroom doorway, appellant was pointing the gun at Thomas. Thomas said, "what's up?" and reached into his coat pocket. Appellant responded by shooting Thomas. Mercer then fled the apartment, and the group of young men, including appellant, also exited.
Appellant testified and admitted signing the confession, but maintained that he did not read the statement before signing it. Asserting an alibi defense, he claimed that he was visiting "Lee Lee," a girl who lived on the fifth floor of Mercer's apartment building, at the time of the murder.
Appellant contends that the trial court erred in giving a supplemental instruction to the jury after deliberations had begun and thereafter limiting the scope of his trial counsel's argument to the issue of aiding and abetting as set forth in the supplemental instruction. He also argues that the supplemental instruction was not balanced and that it tended to favor conviction.
In its original instructions to the jury, the trial court stated that to convict appellant of burglary while armed, it must find beyond a reasonable doubt:
one, that the defendant broke and entered or entered without breaking, the dwelling or room of another, used as a sleeping apartment; two, that at the time of the entry, any part of the dwelling or room used as a sleeping apartment, was occupied; and three, that at the time of the entry, the defendant had the specific intent to steal as to count one, or, commit an assault, as to count two; and, four, that the defendant was armed with a pistol.
During the afternoon on the first day of deliberations, the jury sent a note to the trial Judge asking whether in order to convict of burglary while armed, "the defendant must be armed at the time of entry into the apartment." The court answered "yes" to the jury's question. At that time, the government requested that an aiding and abetting instruction be given to the jury. The court, however, declined to give the instruction, stating, "it was obvious to the jury and it was obvious to all of us during the Discussion. . . [that appellant] was the principal."
Later that same afternoon, the government again asked the trial court to give an aiding and abetting instruction to the jury, arguing that appellant could be convicted of aiding and abetting if he had entered the apartment with an accomplice who was carrying a gun. The government explained that it was arguing the same facts but proffering a new theory of liability, the need for which did not become apparent until the jury posed its question to the court during deliberations. The trial court agreed, stating,
There is. . . an inJustice done to the Government here, by not correcting the mistake, because the facts clearly support an aiding and abetting theory here and it's an alternative theory of ...