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LITTLE v. U.S.

March 12, 1998

MICHAEL K. LITTLE, APPELLANT,
V.
UNITED STATES, APPELLEE. DAVID E. BAILEY, JR., APPELLANT, V. UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, GEOFFREY M. ALPRIN, J.

Before Terry and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge:

David E. Bailey, Jr. was convicted by a jury of two counts of second-degree murder while armed, in violation of D.C.Code §§ 22-2403, -3202 (1996). Bailey was also found guilty of possession of a firearm during a crime of violence (PFCV), § 22-3204(b), and of two counts of carrying a pistol without a license (CPWOL), § 22-3204(a). Bailey's codefendant, Michael K. Little, was convicted [709 A2d Page 709]

of two counts of being an accessory after the fact (AAF) to second-degree murder, § 22-106, and of two counts of CPWOL. Both defendants have appealed from their convictions, and their appeals have been consolidated by order of this court.

Appellate counsel have presented a number of contentions for our consideration, but the only issue requiring plenary discussion is whether the trial judge correctly ruled that Little could properly be convicted of being an accessory after the fact to murder where both decedents were dying, but not yet dead, at the time Little rendered assistance to the murderer. We answer that question in the negative, and therefore conclude that Little's accessoryship convictions must be reduced from AAF to second-degree murder to the lesser-included offense of AAF to assault with a dangerous weapon (ADW). In addition, the government concedes, and we hold, that each appellant's two CPWOL convictions merge with one another. In all other respects, we affirm.

I.

THE EVIDENCE

On January 23, 1994, a double-homicide occurred outside the Mirage, a nightclub located in southeast Washington, D.C. The slayings followed a dispute between two rival groups of young men which had begun inside the Mirage earlier that evening. One of the factions, which we shall call the "Bailey group," consisted of the two appellants, Bailey and Little, and two or three of their friends. The Bailey group's adversaries, the "Morton group," included Harold "Peanut" Morton, decedents Gregory Kennedy and Kevin Harrell, and two or three other individuals.

The unpleasantness between the two groups apparently began when Bailey and Morton exchanged angry words which soon escalated to blows. *fn1 Security guards at the Mirage broke up the fracas and escorted Bailey out of the club. The other members of the Bailey group promptly joined Bailey outside. Little and Bailey then walked to a red Nissan 300 ZX which Little had borrowed and which was parked nearby. Little took his seat behind the steering wheel. Bailey sat in the front passenger seat. Meanwhile, Kennedy and Harrell were leaving the Mirage with the rest of the Morton group a short distance behind them.

Prosecution witnesses testified that Little drove the car down the street to the corner at which Kennedy and Harrell were now standing. Bailey extended his arm out of the window and fired at the two men at close range. Immediately after the shots were fired, the car "skidded out" as Little sped off.

Each of the victims was shot three times. Harrell was struck once in the head, once in the heart and lung region, and once in the abdomen. His head snapped back as a result of the impact of the bullets, and he immediately fell to the pavement. Two bullets from Bailey's pistol struck Kennedy in the back, and a third shot hit his hand. According to the testimony, Kennedy ran down the street with blood "gushing" from his mouth, and he collapsed a short time later.

There was no evidence that either victim died before Little drove away. On the contrary, one prosecution witness testified that after the appellants departed, he saw both victims "squirming" and "shaking" on the ground. It therefore appears to be undisputed that both men were still alive when Little initiated his alleged accessorial conduct by transporting the shooter, Bailey, away from the scene.

Officers Brian Carroll and William Chapman of the Metropolitan Police Department were on patrol when they monitored a radio lookout for a red 300 ZX. Four or five minutes later, they saw appellants' car near Interstate 395 and began to follow it. Little, who had apparently noticed the officers, increased his speed and ran through a red light. A lengthy high-speed chase ensued, [709 A2d Page 710]

and there was testimony that Bailey exchanged gunfire with the officers. The pursuit ended when Little was cornered on a dead-end street. During the course of the chase, Bailey threw a 9mm pistol and a .45-caliber handgun out of the car window. The two weapons were subsequently recovered by the police.

Bailey testified in his own defense. He asserted that he had shot the decedents in self-defense. Bailey claimed that at the conclusion of the affray inside the Mirage, he heard a member of the Morton group suggest to "Peanut" Morton that they "handle this outside." See also note 1, supra. Bailey understood from his adversaries' remarks that once he was on the street, members of the Morton group would try to shoot him. According to Bailey, his fear for his safety became even more pronounced after both groups had left the club. He claimed, contrary to the prosecution testimony, that two "dudes" identified with the Morton group ran towards the 300 ZX while the car was standing still. Bailey testified that one of the "dudes" yelled: "[T]here they go right there, get the guns . . . let's get them." Bailey claimed that he then saw the "big dude fiddling with something" that he (Bailey) believed to be a handgun. Apprehending that he was about to be shot, Bailey took preemptive action and fired at the two "dudes," who turned out to be Harrell and Kennedy. *fn2

Bailey also testified that the two handguns recovered by the police belonged to him, and that Little had no connection with them. He denied shooting at the officers during the chase. Bailey claimed that he threw the weapons out of the car window in order to induce the officers to stop firing at him and at Little. *fn3

II.

THE ACCESSORY AFTER THE FACT ...


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