Appeal from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess, Trial Judge)
Before Farrell and King, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Kern
KERN, Senior Judge: In the early evening of July 9, 1991, near the intersection of First and Kennedy Streets, N.W., appellant and four others -- all armed -- positioned the car in which they were riding beside that of Mr. George Younger, with whom they had an ongoing dispute, and opened fire upon him. The ten to fifteen shots they fired wounded Younger, killed Ms. Marcia Williams who was driving in the vicinity of the shooting, and wounded one of her children who was riding in the front passenger seat of her car.
A jury convicted appellant in June 1992 of first-degree premeditated murder of Ms. Marcia Williams, D.C. Code §§ 22-2401, -3202 (1989); assault with intent to kill while armed ("AWIKWA") on Mr. George Younger and Dwayne Walker (Ms. Williams' son), id. at §§ 22-501, -3202; and assault with a dangerous weapon on Mr. Ronald Moten and Ms. Michelle Royster (passengers in Mr. Younger's auto at the time of the shooting), id. at §§ 22-502, -3202. *fn1
The trial court imposed consecutive sentences upon appellant of twenty years to life imprisonment for the murder of Ms. Williams, ten years to life for the assault with intent to kill upon her son, ten years to life for the assault with intent to kill upon Mr. Younger, two to ten years for each of the two convictions for assault with a dangerous weapon, and one year for carrying an unlicensed pistol. The trial court also sentenced appellant to five to fifteen years for possessing a firearm while engaging in a crime of violence, but this sentence was to run concurrently with the other sentences.
Appellant asserts that the evidence presented at trial was insufficient to support his conviction for first-degree murder, and his two convictions for assault with a dangerous weapon. He also urges that since a single bullet, out of the ten to fifteen that were fired, mortally wounded Ms. Williams as well as injured her son, his conviction for assault with intent to kill the child must be vacated. Further, subsequent to submission of his brief and prior to oral argument, appellant brought to this court's attention a recent decision by the Maryland Court of Appeals, Ford v. State, 330 Md. 682, 625 A.2d 984 (Md. 1993), which deals with the application of the so-called transferred intent theory upon which the prosecution proceeded in this case. According to appellant, Ford supports his argument for reversal of his convictions for first-degree murder of Ms. Williams and AWIKWA against her son, Dwayne Walker. We affirm.
Sufficiency of the Evidence
Appellant states (Brief at 30-32) his contentions as to the insufficiency of the evidence to support the murder conviction as follows:
There was no evidence that Ruffin premeditated or deliberated a homicide. Even assuming, arguendo, that appellant fired the fatal shot (from a gun never found) he was at most guilty of second degree murder, not of a premeditated and deliberated murder. . . . In sum, Shawn Ruffin simply had no motive to murder George Younger in cold blood. . . . Since he lacked the mens rea for the premeditated murder of George Younger, there was insufficient evidence to support his conviction for the premeditated murder of Marcia Williams under the doctrine of transferred intent.
Appellant argues in Conclusion (Brief at 46) that this court must reverse his first-degree murder conviction and "order a new trial on the lesser included offense of the second-degree murder of Marcia Williams. . . ."
We preliminarily note that first-degree murder is a purposeful killing with "premeditated and deliberate malice," D.C. Code § 22-2401 (1989), while second-degree murder is "unplanned or impulsive." Watson v. United States, 501 A.2d 791, 792 (D.C. 1985); Hall v. United States, 454 A.2d 314, 317 (D.C. 1982). To support a finding of premeditation the government must show that before acting the accused "gave thought to the idea of taking a human life and reached a definite decision to kill." Mills v. United States, 599 A.2d 775, 781 (D.C. 1991) (quoting McAdoo v. United States, 515 A.2d 412, 427 (D.C. 1986)). Deliberation requires a showing that "the accused acted with consideration and reflection upon the preconceived design to kill," Mills, supra, 599 A.2d at 781, and may occur in a period "as brief as a few seconds." Watson,supra, 501 A.2d at 793. Premeditation and deliberation may be inferred from surrounding facts and circumstances. McAdoo, supra, 515 A.2d at 427; Hall, supra, 454 A.2d at 317. A motive to seek revenge, particularly if it arises well before the commission of the crime, reinforces such an inference. Mills, supra, 599 A.2d at 781.
Our standard of review when the defendant asserts insufficiency of the evidence at trial is "whether there was sufficient evidence from which a reasonable juror could fairly conclude guilt beyond a reasonable doubt." McAdoo, supra, 515 A.2d at 427 (quoting Jones v. United States, 477 A.2d 231, 236 (D.C. 1984)(quoting Head v. United States, 451 A.2d 615, 622 (D.C. 1982))). In order to make this determination "this court must view all of the evidence in the light most favorable to the government, with due regard for the jury's right to weigh the evidence, to determine the credibility of witnesses, and to draw reasonable inferences." Mills, supra, 599 A.2d at 780 (citing Irick v. United States, 565 A.2d 26, 30 (D.C. 1989)). We do not distinguish between direct and circumstantial evidence. Jones, supra, 477 A.2d at 246; Byrd v. United States, 388 A.2d 1225, 1229 (D.C. 1978). Applying our standard of review to this record, we find ample evidence from which the jury could conclude that appellant formed an intent to kill George Younger with the requisite premeditation and deliberation to support his conviction of murder in the first degree.
The evidence presented at trial showed that at the time of the attack on Younger, appellant occupied the front passenger seat of a car driven by George Jeffries. The other passengers in this vehicle were the brothers Dwight and Garnett Davis, and a juvenile, Niles Dabney. Tr. I, 625-26. *fn2 The attack was the culminating event in an ongoing "beef" that paired Younger and his friend "Bimbo" against the Davis brothers and their companions. The beef began when Younger and Bimbo alleged that Garnett Davis and Tony Watkins had burglarized Bimbo's apartment and that Garnett Davis had stolen $30,000. Tr. I, 607-15, Tr. 6/12 P.M., 45-46.
One week prior to the shooting, Bimbo and Younger had gone to the Davis' home to discuss these allegations. *fn3 At that meeting, Dwight Davis argued with Bimbo, stating that his brother had not been involved in the theft. Tr. I, 614-15; Tr. 6/12 P.M., 48-49. Appellant was observed standing in the hallway of the Davis' home at the Conclusion of the meeting but was not in the kitchen where the Discussion took place. Tr. 6/12 P.M., 49-50.
The next day appellant, as well as Dwight Davis, George Jeffries and Tony Watkins were riding in Davis' car when they saw Younger walking his dog. They exited their vehicle and Dwight Davis stepped forward to question Younger as to whether Younger still believed Davis' brother was involved in the burglary. Tr. I, 616-19. Younger responded that nothing had changed and then lifted his shirt to display a pistol he was carrying in the waistband of his pants. Tr. 6/12 P.M., 53-56. Appellant and his friends then returned to their car. Tr. 6/12 P.M., 56. Although appellant was present during this confrontation, he did not say anything. Tr. I, 617; Tr. 6/12 P.M., 84.
Prior to the shooting on the evening of July 9th, appellant, the Davis brothers, Jeffries and Dabney, all of whom were armed, drove Dwight Davis' girlfriend to an appointment in Maryland. Tr. I, 624-25. As the six of them drove back into their neighborhood, Garnett Davis saw Younger's car moving in the opposite direction and told the driver, George Jeffries, to turn around and follow Younger. Tr. I, 629, 716. *fn4 Jeffries made the necessary turns around a block so that they could follow Younger's vehicle. During this time appellant and the others stopped the car in order to enable Davis' girlfriend to alight from the ...