Appeal from the Superior Court of the District of Columbia. (Hon. Henry H. Kennedy, Jr., Trial Judge).
Before Wagner, Chief Judge, and Terry and King, Associate Judges. Opinion for the court by Chief Judge Wagner. Concurring opinion by Associate Judge King, with whom Associate Judge Terry, joins.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: Following a jury trial, each of the appellants, Leroy Peterson and Kenneth Johnson, was convicted of two counts of assault with a dangerous weapon (ADW) (D.C. Code § 22-502 (1989)), possession of a firearm during a crime of violence (PFCV) (D.C. Code § 22-3204 (b) (1992 Supp.)), and possession of a prohibited weapon (sawed-off shotgun) (PPW) (D.C. Code § 22-3214 (a) (1989)). The court sentenced Peterson to concurrent terms of incarceration of three and one-third to ten years for each count of ADW; a consecutive term of five to fifteen years for PFCV, and one year for PPW, concurrent with the other terms. The court sentenced Johnson under the provisions of the Youth Rehabilitation Act of 1985 (YRA) (D.C. Code § 24-803 (b) (1989)) to an aggregate term of seven years. Both appellants argue for reversal on the ground that the evidence identifying them as the perpetrators of the crimes was insufficient to support the convictions. Appellant Peterson argues for reversal on the following additional grounds: (1) insufficiency of the evidence to support a conviction of ADW on either an attempted-battery or an intent-to-frighten theory; (2) inadequacy of the jury instruction for ADW; and (3) failure of the trial court to instruct on an essential element of PPW, i.e., operability of the sawed-off shotgun. He further contends that the trial court failed to make an explicit finding that he would not benefit from treatment under the YRA, thereby requiring a remand for resentencing. We affirm.
The government's evidence showed that Homer Queen and Shannon Bond, the eleven year old daughter of Queen's fiancee, were at the teller's window of an Exxon station at 4650 South Capitol Street, Southeast, Washington, D.C. on November 29, 1992 at around 9:45 p.m. Bond testified that she saw "two boys" near a telephone booth staring at her, which made her quite apprehensive. As Bond re-entered the car Queen was driving, she noticed the same two people at the rear of the car, and she locked her door. Queen, who was trying to calm Bond, looked over and saw a man standby by Bond's window. The man knocked on the window with a gun. Queen testified that the gunman waved the barrel of the shotgun at him and Bond and that he saw a dark-skinned male standing at the gunman's back looking around. Queen heard the gunman say, "C'mon, motherf[ ]." While starting the car, Queen heard the dark-skinned man tell the gunman "'C'mon, f[ ] it,'" and he heard Peterson say "'C'mon motherf[ ]'." Queen pushed Bond protectively onto the car's bench seat and drove out of the station's lot. As he drove away, Queen looked back and observed the two assailants walking toward a van.
In the next two to three minutes, Queen drove approximately one-quarter of a mile from the station and located two police officers, James McGee, Jr. and Kerry Poole. Queen told them what had happened. He described for the officers the man with the shotgun as a light-skinned, black male who was wearing a blue "team" jacket with white writing on the back, a white hat, and blue jeans. The officers drove Queen back to the gas station in a marked police car, while Bond, who was hysterical, was taken home by an ambulance crew who were in the area.
When the police drove Queen into the 4600 block of South Capitol Street, he saw the two assailants, whom he recognized by their clothing, as they were walking about a block away. As the police car approached, both men looked over their shoulders and ran. Officer McGee chased the suspected gunman, later identified as Peterson, into a blue car where he fell to the ground. Officer Poole chased Johnson for about 25 feet, firing four shots at him, but he gave up the chase to help McGee handcuff Peterson.
Another police officer, Johnnie Patton, who had been working as an off-duty security guard that night at an apartment building across from the Exxon gas station, eventually caught Johnson. Officer Patton had been following Peterson and Johnson because of information he had received from a citizen who flagged him down. While Officer Patton was following the men in his pickup truck, he saw them look back at the marked police car, which pulled up, and run into an alley. Patton found Johnson hiding behind a car in a parking lot, trying to push his clothes and hat under it. Johnson started running again, but he stopped when Patton pulled his service revolver and commanded him to stop. Patton testified that he was certain that Johnson was the man he had followed from South Capitol Street.
Officer Patton recovered the articles of clothing from under the car and had Johnson put them on again. Initially, Queen told Officer McGee, "I can't tell if that is him or not because I didn't really see him." McGee related this to Patton, who asked if there was anything about Johnson which Queen could identify. According to Patton, Queen then stated "he could not identify the man but the clothes looked right."
At trial, Queen testified that he did not recognize the person's face, but the man he identified had the same complexion and wore the same clothes as the second person at the gas station that night. He also testified that he had seen the barrel of the gun and both men. Queen described the gunman as light-skinned and wearing a dark blue "starter" jacket with a grey, hooded sweatshirt underneath it. Bond testified that she saw only the person with the gun at the time of the incident, whom she described as light-skinned and wearing dark clothes. Bond identified Peterson in court as the man who held the gun that night. Queen had identified Peterson as the gunman within five to ten minutes after the assault. In court, Queen also identified Peterson as the gunman.
Officer Patton recovered a Remington, semi-automatic, sawed-off shotgun from under the blue car where Peterson had tried to hide his clothing. The weapon, which was 12-1/2 inches long, had one live shotgun shell in the chamber and four additional live shells in its magazine.
Appellant Peterson testified at trial and offered an innocent explanation for his presence that night in the block where the gas station was located. According to Peterson, Johnson called him across the street for a light. He said he had just crossed the street when he heard the sound of brakes and saw a man dressed in blue who pointed a gun at him and ordered him to "come here." According to Peterson, he heard gunshots, and ran and fell. Peterson also testified that he did not notice whether Johnson ran, but he had seen some of the five or six people at a bus stop run. On cross-examination, Peterson admitted that a photograph which the government offered as an exhibit, accurately showed that on the night of his arrest he was wearing a grey, hooded sweatshirt and holding behind his back a blue "starter" jacket that he had been wearing. Peterson's counsel read the following stipulation into the record:
On February 10th, 1993 Shannon Bond was shown a photo array of nine color photographs, which included photographs of the defendants Kenneth Johnson and Leroy Peterson. After viewing the photos, Ms. Bond indicated she did not recognize anyone. She then selected the picgures of each defendant, and a third individual, and indicated she recognized ...