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Riley v. U.S.

September 22, 1994

JULIAN RILEY, EVERETT L. ALLEN, III, LINWOOD T. DAVIS, APPELLANTS
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Ferren,* Schwelb, and King, Associate Judges. Opinion for the court: Per Curiam. Separate opinion by Associate Judge King. Separate opinion by Associate Judge Ferren. Separate opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: The convictions of appellants Riley and Davis and all convictions of appellant Allen, except the conviction for subornation of perjury, are affirmed for the reasons set forth in the opinion by Judge King which is joined (except as to Allen's subornation conviction) by Judge Ferren and judge Schwelb. The conviction of appellant Allen for subornation of perjury is reversed for the reasons set forth in the separate opinions of Judge Ferren and judge Schwelb; Judge King Dissents from the reversal of that conviction for the reasons set forth in his separate opinion.

No. 92-CF-1230

Affirmed.

No. 92-CF-1268

Affirmed in part, reversed in part.

No. 92-CF-1557

Affirmed.

KING, Associate Judge: Appellants Julian Riley, Everett Allen III, and Linwood Davis *fn1 were charged with armed assault with intent to kill, *fn2 armed mayhem, *fn3 possession of a firearm during a crime of violence ("PFCV"), *fn4 and carrying a pistol without a license ("CPWL") *fn5 based on their alleged participation in the shooting of Pernell Gibson on February 12, 1991. In addition, Riley, Davis, and Murphy were charged with perjury before the grand jury, and Allen and Davis were charged with subornation of perjury *fn6 and obstruction of Justice *fn7 for their actions related to witnesses subpoenaed to testify before the grand jury.

Riley was convicted of armed assault with intent to kill, armed mayhem, PFCV, CPWL, and perjury. Allen was convicted of simple assault as a lesser included offense of armed assault with intent to kill, obstruction of Justice, and subornation of perjury. Davis was convicted of simple assault as a lesser included offense of armed assault with intent to kill, obstruction of Justice, perjury, and attempted subornation of perjury as a lesser included offense of subornation of perjury.

On appeal, Allen contends there was insufficient evidence to convict him of obstruction of Justice. Davis contends the trial court erred both in admitting inadmissible hearsay and in permitting the victim to display his wound to the jury. He also contends that there was insufficient evidence to convict him of subornation of perjury and obstruction of Justice. Finally, Allen and Davis claim that since some of their convictions merge with each other, the trial court erred in imposing separate sentences for each offense. *fn8 We find no reversible error with respect to any of these claims. *fn9 Accordingly, we affirm each of those convictions. Appellant Allen also claims there was insufficient evidence to convict him of subornation of perjury. That conviction, for the reasons set forth in the separate opinions of Judge Ferren and judge Schwelb, is reversed; I Dissent for the reasons set forth in Part II. A. of this opinion.

I.

At trial the government presented the following facts. On February 12, 1991, appellants, members of a group known as the "Q Street Gang," were at Allen's home playing video games. *fn10 During the course of the day, the gang members passed around Allen's .38 pistol. At some point, Allen received a phone call, became upset by the conversation that took place during the call, and then began to leave, stating he was going to go fight Pernell Gibson. The gang members followed, and as they left the room Allen handed the weapon to Riley, who took the weapon with him. The group walked to a nearby corner, and Allen entered a restaurant, returning a few moments later with Gibson. A fight ensued between the two, and the other gang members formed a circle around the fighters, occasionally throwing punches at Gibson. After Allen fell to the ground, Riley pulled out the pistol and shot Gibson at ...


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