Appeal from the Superior Court of the District of Columbia; (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before Farrell and King, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Gallagher
GALLAGHER, Senior Judge: This is an appeal of a conviction on twelve counts arising from the robbery and murder of two cocaine dealers. Appellant asserts error in the admittance of coconspirator evidence, and due to improper prosecutorial statements involving (a) appellant's failure to testify; (b) facts not in evidence; and (c) the burden involved in impeaching a government witness. Finding no error, we affirm.
On June 14, 1990, appellant was indicted and charged with one count of conspiracy in violation of D.C. Code § 22-2901 (1989); one count of first-degree burglary while armed in violation of D.C. Code §§ 22-1801, -3202 (1989); one count of assault with a dangerous weapon in violation of D.C. Code § 22-502 (1989); one count of armed robbery in violation of D.C. Code §§ 22-2901, -3202 (1989); two counts of first-degree murder while armed (felony murder - burglary) in violation of D.C. Code §§ 22-2401, -3202 (1989); two counts of first-degree murder while armed (felony murder - robbery) in violation of D.C. Code §§ 22-2401, -3202 (1989); one count of carrying a pistol without a license in violation of D.C. Code § 22-3204 (a) (1989); one count of possession of a firearm during the commission of a violent or dangerous offense in violation of D.C. Code § 22-3204 (b) (1989); one count of attempted subornation of perjury in violation of D.C. Code §§ 22-105, -2512 (1989); and one count of obstruction of Justice in violation of D.C. Code § 22-722 (a)(1) (1989). These charges arose out of a drug robbery and the resulting shooting death of two men on March 11, 1990.
A trial commenced on January 13, 1992. All counts were submitted to the jury in addition to two counts of the lesser included offense of second-degree murder while armed. Appellant was acquitted of the premeditated murder charges, but was convicted of the remaining charges.
The government presented evidence at trial demonstrating that Robert Price, Kenneth Lampkin and appellant stole seventeen ounces of cocaine and during the robbery killed the two cocaine dealers. Price testified that in early March 1990, he, Lampkin and Torrance Duckett discussed the possibility of robbing the two cocaine dealers. Later, during the detailed planning of the robbery, although Duckett was not present, appellant was included in the planning. After setting up a meeting with the victims, and on the way to the meeting place, Price asked Mike Williams to join the group. On the way, the group retrieved a nine-millimeter handgun from appellant's residence, and a shotgun and .357 pistol from Lampkin's home. Appellant was to carry the nine-millimeter, Lampkin the .357 pistol, and Price the shotgun. Mike Williams testified that appellant was one of the conspirators.
The four men then proceeded to rob the two cocaine dealers. Price heard gunshots as he was leaving the scene. He then fled the scene with appellant and Lampkin. Mike Williams, who had been waiting outside, fled when the shots rang out. The three men traveled to Duckett's house which was also where Price was living at the time. The three conspirators and Duckett went into Duckett's bedroom (also where Price slept) and Price put the guns under the mattress. The four men then divided up the stolen cocaine. Each of the conspirators took five ounces, and Price gave Duckett one ounce so that he could "get his car fixed." Appellant and Lampkin split the final ounce.
While dividing up the cocaine the conspirators made several statements. Price testified that somebody said "something about I bust him." Duckett testified that he was involved in the initial Discussion regarding the robbery, but ultimately did not participate. He also testified regarding the three men arriving at his house, entering his bedroom, hiding the guns and dividing the cocaine. Duckett testified that Lampkin said that "we just came from robbing somebody," and that Lampkin or Price said that "we just robbed somebody at Park Chester." According to Duckett, one of the coconspirators also said that they killed "the Panamanians," with Lampkin adding that they did so because "they saw their face." In addition Duckett testified that appellant "said we just now killed somebody."
In addition, an officer testified regarding appellant's arrest. On that day appellant made a statement which was recorded by the police. A portion of that statement was played for the jury in which appellant stated that on the night of the killings he was at home with his girlfriend. He stated that he remembered being home because he was sick on that day. Among the other evidence was a nine-millimeter bullet and two slugs consistent with a .357 caliber weapon.
Appellant makes the following four arguments on appeal:
1. The court committed reversible error in admitting hearsay evidence adduced by the government in the form of out-of-court statements by co-conspirators;
2. The trial court committed reversible error in failing to grant a mistrial following the prosecutor's improper comments ...