Appeal from the Superior Court of the District of Columbia; (Hon. Noel A. Kramer, Trial Judge)
Before Wagner, Chief Judge,* and Sullivan, Associate Judge, and Kern, Senior Judge. Opinion Concurring in part and Dissenting in part by Senior Judge Kern.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: A jury convicted appellant of second-degree murder while armed (D.C. Code §§ 22-2403 (1989 Repl.), -3202 (1993 Supp.)), three counts of attempted robbery while armed (D.C. Code §§ 22-2902 (1989 Repl.), -3202), possession of a firearm while committing a crime of violence (D.C. Code § 22-3204 (b) (1993 Supp.)), and carrying a pistol without a license ("CPWOL") (D.C. Code § 22-3204 (a) (1993 Supp.)). We affirm.
The record reflects that appellant and three cohorts armed themselves and then robbed three drug dealers who were selling their wares on Second Street, S.E. During this robbery, one of appellant's cohorts shot and killed with a pistol one of the victims. Appellant argues that there was insufficient evidence to support his conviction for CPWOL on a constructive possession theory. *fn1
In evaluating a claim of insufficiency, "we must consider the evidence in the light most favorable to the government, giving the prosecutor the benefit of all reasonable inferences from the evidence." Bernard v. United States, 575 A.2d 1191, 1195 (D.C. 1990). "Constructive possession requires two elements: knowledge of the presence of the object, and the right to exercise dominion over it, or stated differently, the 'ability to guide destiny.'" Jefferson v. United States, supra, 558 A.2d at 304 (quoting United States v. Hubbard, 429 A.2d 1334, 1338 (D.C.), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 153, 102 S. Ct. 308 (1981)).
While the issue is a very close one, the facts presented in the instant case, when viewed in the light most favorable to the government, are sufficient to establish that appellant had constructive possession of the murder weapon. See Bernard, supra, 575 A.2d at 1195-96; Curry v. United States, 520 A.2d 255, 263 (D.C. 1987).
In the instant case, appellant clearly had knowledge of the "presence" of the pistol at the scene. There was evidence that appellant participated in planning and preparing to commit the robbery. Appellant supplied three shotguns that were used in the robbery. He knew that the three shotguns and the pistol, used by Eric Rice during the fatal shooting, were loaded. At the time of the shooting, appellant was searching one of the robbery victims for drugs and money. When the shot rang out, he looked behind him and saw the decedent, Albert King, on the ground. Undaunted, appellant and his cohorts continued with the robbery.
Other factors support the government's theory that appellant had the ability to, and did, exercise control over the weapon. The manner in which the weapons were disposed of evidenced appellant's ability to "guide the destiny" of the pistol. After the shooting and robberies, appellant and his cohorts ran from the scene and hid their guns all together in someone's yard before leaving in Rice's car. Thus, the facts are similar to Logan v. United States, 489 A.2d 485 (D.C. 1985), where the court found constructive possession in someone, although the weapon was actually held by another, because they acted together in disposing of it. Id. at 491. Also significant here, appellant later took part in a decision to send someone to retrieve the hidden weapons. All of this evidence is sufficient to support the inference that appellant had the ability to exercise control over the murder weapon and to guide its destiny. See Bernard, supra, 575 A.2d at 1195-96; Curry, supra, 520 A.2d at 263. To the extent that relinquishment of the weapon by one in actual control may be necessary to establish constructive possession in another, see Jefferson, supra, 558 A.2d at 304, such relinquishment occurred here, albeit in the asportation and concealment phases of the crimiflal venture.
Appellant argues that his other convictions should be reversed and a retrial ordered because the Judge erred in her instructions to the jury on the credibility of witnesses. Appellant makes three claims in this regard: (1) that the Judge impermissibly implied that appellant perjured himself at trial; (2) that the Judge impermissibly singled out the defendant; and (3) that a portion of the Judge's instruction constituted a prohibited "falsus in uno" instruction. We find no merit in the first two claims of error. And, with regard to the third, we conclude that even if the particular language employed by the trial court was error, it was harmless. See Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946); White v. United States, 613 A.2d 869, 874 (D.C. 1992) (en banc).
Appellant contends that the trial court, in a part of its instruction to the jury on credibility, conveyed its belief that some of appellant's testimony at trial had been perjurious. The record reflects that appellant testified at the trial that during the robbery and murder he had been elsewhere with others. He also testified, however, that prior to trial he lied repeatedly in his statements to the police and in his sworn testimony before the grand jury. (He confessed to the grand jurors in some detail the planning and execution of the robbery.) When counsel and the trial court discussed the court's final charge to the jury, the prosecutor urged the court to include in its instruction on credibility the so-called perjurer's testimony instruction. *fn2 The defense attorney objected and the court omitted this instruction from its charge.
Subsequently, this time over defense counsel's objection, the court included in its charge on credibility a special instruction it had prepared. Thus, the court in its standard instructions on credibility first directed the jury, "You alone determine the weight, the effect and the value of the evidence as well as the credibility, that is the believability of witnesses, who have come before you." The court further instructed the jurors, "You are the sole Judge of the credibility of the witnesses. In other words, you alone are to determine whether to believe any witness and the extent to which any witness should be believed." The court thereafter instructed the jury:
In the final analysis, you should give the testimony of each witness such weight as in your judgment it is fairly entitled to receive. . . . With respect to judging credibility, let me give you this instruction. A person who lies when he or she was sworn to tell the truth commits perjury. I must warn you that the testimony of a witness who has tied under oath should be viewed cautiously and weighed with ...