Appeals from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)
Before Wagner, Chief Judge, and Ferren and Terry, Associate Judges. Opinion for the court by Associate Judge Ferren. Opinion Concurring in part and Dissenting in part by Chief Judge Wagner at p..
The opinion of the court was delivered by: Ferren
Opinion for the court by Associate Judge FERREN.
FERREN, Associate Judge: A jury convicted Charles Howard and Ronald Willis on two counts each of assault with intent to murder while armed, D.C. Code §§ 22-503, -2403, -3202 (1989 Repl. and 1994 Supp.), two counts each of possession of a firearm during a crime of violence, id., § 22-3204(b), one count each of carrying a pistol without a license, id., § 22-3204(a), two counts each of possession of an unregistered firearm, id., § 6-2311(a) (1989 Repl.), and two counts each of unlawful possession of ammunition, id., § 6-2361(3). In this consolidated appeal, both appellants contend the trial court erred in refusing to instruct the jury on self-defense and in excluding evidence of the complainant's prior assaultive acts against Howard. Willis also argues the trial court erred in denying his motion for a judgment of acquittal; he claims the evidence was insufficient to prove beyond a reasonable doubt that he was an aider and abettor, let alone a principal. Finally, Howard contends the trial court erred in three other ways: precluding all communication between Howard and his counsel about information that allegedly showed a government witness's potential bias; restricting Howard's right to cross-examine the witness about his potential bias; and instructing the jury on transferred intent.
We conclude that the trial court erred by excluding the proffered evidence of the complainant's prior assaultive acts against Howard. This exclusion also substantially affected Willis's defense against charges that he had aided and abetted Howard. Accordingly, because the court's error was of constitutional magnitude and was not harmless beyond a reasonable doubt, we must reverse appellants' convictions for assault with intent to murder while armed and remand for the government to choose between retrying appellants on those charges, or, in the alternative, entry of convictions on the lesser included offense of assault with intent to kill while armed. We affirm as to all other counts. *fn1
On the evening of February 11, 1991, Lonnie Boone and Derrick Ross were at the Farmers' Market in Southeast Washington. As Boone was coming out of a small liquor store at about 9:30 p.m., he saw appellants Howard and Willis. There was conflicting testimony about what happened next. According to Boone's testimony at trial, Howard cut in front of Boone as Boone was walking toward a telephone and said to Boone, "I heard you and Kevin supposed to be - try and kill ." Boone replied, "Who told you that?" At that point, as Boone continued to walk toward the telephone, Howard swung and hit him in the ear. Boone then ran out of the Farmers' Market and up a hill toward his home. On the way home, Boone met a friend, Marvin (Kevin) Womack. He told Womack about his encounter with Howard. The two were soon joined by Derrick Ross.
Appellant Howard's version of the same events was slightly different. He testified at trial that when he saw Boone and Ross coming out of the liquor store, he called Boone over and asked him, "Why did they try to kill me?" Boone replied that he did not know what Howard was talking about, to which Howard responded, "I saw y'all. I saw y'all when y'all was -- y'all had shot at me one day." Boone answered, "that wasn't me, that was Kevin ." Howard then said, "You was with him," and Boone reiterated, "I wasn't with him." On direct examination, Howard did not mention swinging at Boone. On cross-examination, however, Howard testified that, after the exchange of words, he and Boone were "about to fight." He said, they swung at each other and missed; Boone then ran away.
Howard further testified that, after Boone had run away, Willis told Howard that he had seen Derrick Ross take a gun out during Howard's altercation with Boone. Howard and Willis then left the Farmers' Market and went to Howard's house. They retrieved a sawed-off shotgun and a .25 caliber semi-automatic pistol from under some dirt in Howard's back yard.
Howard and Willis then drove to Boone's house. Howard testified that their purpose was to "just call everything off and let everything be. I mean let it be, let's not have no problems." Howard added that the reason for taking the weapons was "because I know these guys and Derrick had a gun, and I was not going around there without my protection." According to Howard, when they arrived at Boone's house, he and Willis got out of the car and began walking up the street. Howard was carrying the sawed-off shotgun concealed beneath his coat; Willis was carrying the pistol.
As Howard and Willis were walking, they saw Kevin Womack, Lonnie Boone, and Derrick Ross in a parking lot some distance ahead of them. There was conflicting testimony about what happened next. According to the government's witnesses, Boone and Womack, when the parties were about twenty feet apart, Howard said to Womack, "I heard you supposed to be beefing with me." Howard then pulled out the sawed-off shotgun. Womack replied, "I ain't got no beef with you" and began backing away. Womack testified that, as he was backing away, he was holding his hands up. At this point, according to Womack, Boone cut in front of Womack and began running. Womack further testified that Howard then fired a shot that struck Womack in the shoulder. According to Boone, as Boone was running a second shot struck a metal gate near him. Both government witnesses testified that Howard then took the pistol from Willis and fired again at Boone. Boone testified that he kept running until he was across the street. When Boone looked back, he saw Howard standing within seven to ten feet of Womack, firing the pistol at Womack as he lay on the ground. Womack testified that, in addition to receiving his first wound, in the shoulder, he was hit twice in the back and a third time on the right side below the rib cage. Both Boone and Womack testified that they had not been carrying weapons at the time of the shooting.
Derrick Ross also testified for the government. He said that he had been carrying a weapon at the Farmers' Market but that he no longer had it when he met up with Boone and Womack. Ross also testified that Boone and Womack had not appeared scared when Howard first confronted them, and that Ross had concluded from their lack of fear that one of them had been holding a gun. On cross-examination, Ross testified that before Howard had shot Womack, Womack had made gestures that would have caused a policeman to shoot him.
Appellant Howard's description of the shooting was quite different from Boone's and Womack's. Howard testified for the defense that when he and Willis had encountered Womack, Boone, and Ross, Howard had been in front; Willis had been about ten feet behind him. When Howard had come within four feet of Womack, the two had had a brief conversation. At this time, according to Howard, the shotgun was completely concealed beneath his coat. Howard then testified that, during the conversation, Womack had been "wiggling" or rocking from side to side. Womack had "made a motion" as if "he was grabbing a gun to try to shoot"; at the same moment Boone had "cut across." Howard acknowledged that he had drawn the shotgun and shot twice in the direction of Womack, but he had not shot at Boone, who was running away. Howard then had turned around and run toward Willis. When Howard reached Willis, who had been looking back toward Womack. Willis told Howard to watch out. Howard testified that, upon looking back, he had seen Womack pulling out "with his right hand, a black gun." Howard grabbed the pistol from Willis and fired quickly toward Womack. Howard did not recall how many shots he had fired. Howard testified that Womack had been standing up at the time. Howard and Willis then had left the area and returned to Howard's home.
We initially consider several contentions that can be disposed of briefly.
Appellant Willis contends the trial court erred in denying his motion for judgment of acquittal on all counts. This court may reverse the trial court's denial of such a motion only by finding that the evidence, viewed in the light most favorable to the government, is such that no reasonable juror could fairly find guilt beyond a reasonable doubt. See Gayden v. United States, 584 A.2d 578, 579-80 (D.C. 1990) cert. denied, 502 U.S. 843, 112 S. Ct. 137, 116 L. Ed. 2d 104(1991); Thompson v. United States, 567 A.2d 907, 908 (D.C. 1989); Patterson v. United States, 479 A.2d 335, 338 (D.C. 1984). Willis argues that the evidence shows only that he was present and that proof of mere presence is insufficient to sustain his convictions for aiding and abetting assault with intent to commit murder while armed.
We cannot agree with Willis's view of the evidence. Howard testified that Willis had helped him dig up the weapons, accompanied him to Boone's house, held one of the guns, warned Howard that he was in danger, handed the gun to Howard so that he could shoot Womack, and left the scene with Howard. This evidence provides more than a sufficient basis for finding that Willis was not merely present but, rather, took actions that "facilitated the unlawful deed." Settles v. United States, 522 A.2d 348, 357 (D.C. 1987) (quoting Bailey v. United States, 135 U.S. App. D.C. 95, 98-99, 416 F.2d 1110, 1113-14 (1969)). Willis's motion was properly denied with respect to the weapons charges as well. See Tucker v. United States, 421 A.2d 32, 35 (D.C. 1980).
Appellants both maintain that the trial Judge erred in refusing to instruct the jury on self-defense. When a defendant raises a claim of self-defense, the trial court must decide, as a matter of law, whether there is record evidence sufficient to support the claim. See Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992) (citing Bowler v. United States, 480 A.2d 678, 682 n.8 (D.C. 1984)). Here, the trial court denied the requested instruction on the ground that, in the court's words, the defendants had put themselves "in a position where violence was likely to result." We find no error in this ruling. *fn2 We have repeatedly reaffirmed the principle that "self-defense may not be claimed by one who deliberately places himself [or herself] in a position where he [or she] has reason to believe his [or her] 'presence . . . would provoke trouble.'" Mitchell v. United States, 399 A.2d 866, 869 (D.C. 1979) (quoting Rowe v. United States, 125 U.S. App. D.C. 218, 219, 370 F.2d 240, 241 (1966)); see Harper v. United States, 608 A.2d 152, 155-56 (D.C. 1992); Brown, 619 A.2d at 1182; Nowlin v. United States, 382 A.2d 9, 14 n.7 (D.C. 1978). The trial court correctly applied that principle here.
After the confrontation at the Farmers' Market, Howard and Willis had returned to Howard's house, armed themselves with a considerable amount of firepower, and driven to Lonnie Boone's house Thus, even if Kevin Womack had made the first move for a gun once Howard and Willis had arrived, armed, at Boone's house, the degree of initiative appellants had taken in creating the confrontation precluded a claim of self-defense. See Brown, 619 A.2d at 1182(quoting Rowe, 125 U.S. App. D.C. at 219, 370 F.2d at 241)(" defendant cannot successfully claim self-defense when 'he [or she] left an apparently safe haven to arm himself [or herself] and return to the scene.'") Indeed, as we stressed in Nowlin:
appellant had no legitimate claim to the defense of self-defense, since he had voluntarily placed himself in a position which he could reasonably expect would result in violence. Self-defense "is not available to one who finds trouble by going out of his way to look for it." R. Perkins, 1008 (2d ed. 1969).
382 A.2d at 14n.7 (emphasis added). These words apply to both appellants here.
Before trial, the prosecutor, out of concern for his obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194(1963), informed the court and defense counsel that Derrick Ross was a suspect in an unrelated armed robbery, although there was no basis for believing that Ross was aware he was under suspicion. The court ruled that this information was too attenuated to fall within the demands of Brady. The court issued a protective order prohibiting defense counsel from discussing this information with appellant Howard and from using it as a basis for cross-examining Ross. On appeal, Howard contends that this protective order violated his Sixth Amendment right to counsel, as well as his rights under the Confrontation Clause. We find no abuse of discretion in the court's issuance of this protective order. See United States v. Anderson, 509 F.2d 724, 730 (9th Cir. 1975) ("the district court can and should, when appropriate, place defense counsel under enforceable orders against unwarranted disclosure of the evidence that he has heard.") cert. denied, 420 U.S. 910, 42 L. Ed. 2d 840, 95 S. Ct. 831(1975).
There was no evidence that Ross knew of the potential charges. Thus, counsel's failure to disclose this possibility to Howard, let alone to cross-examine Ross about it, could have no material, adverse impact on the defense, for if Ross did not know he was a suspect, he had no reason to curry favor with the government by "improving" his testimony for the government's benefit. If, on the other hand, cross-examination by defense counsel would have informed Ross that he was a suspect, such disclosure would have risked the very biased testimony counsel wished to avoid. Finally, even if, unbeknownst to court and counsel, Ross knew he was a suspect in an unrelated crime, his testimony did not evidence a pro-government bias; in fact, his testimony was helpful to appellant Howard. Ross testified that when confronted by Howard, both Womack and Boone had reacted in a way that suggested one of them was armed, and that, before the shooting, Womack had made gestures that would have caused a policeman to shoot him. It is therefore hard to see what the defense would have gained by attempting to impeach Ross's credibility.
Howard also contends that the trial court erred in instructing the jury on transferred intent. Taking the evidence in the light most favorable to the government, as we must, we find no merit in this argument. The trial court, referring to the government's evidence that Howard's first shot had been fired at the moment Boone was cutting in front of Womack, instructed the jury that if it found that this first shot was intended for Boone, it could transfer that intent to Womack and consider it in relation to the charge of assault with intent to murder Womack. At trial, appellant Howard objected to this instruction on the ground that it was not supported by the evidence. On appeal, however, appellant has abandoned that argument; he contends only that transferred intent instructions no longer may be given in attempted murder cases in light of dictum in the recent Maryland Court of Appeals decision in Ford v. State, 330 Md. 682, 625 A.2d 984(Md. 1993). *fn3 Appellant did not raise this argument at trial, which took place in the spring of 1992, over a year before Ford was decided. *fn4 We therefore review for plain error - an error "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial." Watts v. United States, 362 A.2d 706, 709 (1976) (en banc); see Super. Ct. Crim. R. 52 (b) (plain error).
We need not resolve here the question of Ford's applicability in this jurisdiction, *fn5 because, on the facts of this case, even if we were to adopt Ford, the trial court's transferred intent instruction did not approach plain error. The instruction was given solely with regard to the first shot fired by Howard. By his own account, however, Howard fired at Womack, with the intent to hit Womack, at least three more times. Thus, even if Howard's first shot was intended for Boone, the jury need not have transferred that intent to Womack in order to find Howard guilty of assaulting Womack with intent to murder while armed. Indeed, the evidence of ...