APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, NOEL ANKETELL KRAMER, J. [716 A2d Page 161]
Before Steadman, Schwelb, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge:
Erik Jones was convicted by a jury of one count of accessory after the fact to first degree murder while armed, D.C.Code § 22-106 (1996), and one count of obstruction of justice, D.C.Code § 22-722(a) (1996). *fn1 The [716 A2d Page 162]
only issue on appeal is whether the evidence presented to the jury was sufficient to support those convictions.
When reviewing a challenge to the sufficiency of the evidence, we examine that evidence in the light most favorable to sustaining the verdict. See, e.g., Hammon v. United States, 695 A.2d 97, 107 (D.C. 1997); Irick v. United States, 565 A.2d 26, 30 (D.C. 1989); McClain v. United States, 460 A.2d 562, 567 (D.C. 1983). We must recognize "the jury's right to assess credibility and to draw reasonable inferences from the evidence it has heard," Nelson v. United States, 601 A.2d 582, 593 (D.C. 1991), and accord equal weight to circumstantial evidence and direct evidence, Hammon, supra, 695 A.2d at 107. The government need not disprove every theory of innocence. Lattimore v. United States, 684 A.2d 357, 359 (D.C. 1996); Irick, supra, 565 A.2d at 30-31. We shall reverse a conviction for insufficiency only if there is no evidence from which a reasonable mind might find the defendant guilty beyond a reasonable doubt. Harris v. United States, 668 A.2d 839, 841 (D.C. 1995). Applying these standards for review of claimed evidentiary insufficiency, we affirm the convictions.
From the evidence presented by the government, the jury could have concluded that the following events took place on the evening of April 9, 1994. At approximately 11:30 p.m., Rogest Webb rose from his seat on a curb in the 200 block of K Street, S.W., and walked north along a nearby walkway or "cut." In the cut, Webb encountered Arthur Rice, an acquaintance, heading in the opposite direction, and he spoke briefly to Rice. After Rice passed by, Webb turned to see him walk quickly towards Steven Dunbar, who also had been sitting on the K Street curb near the entrance to the cut. Webb noticed that Rice was carrying a pistol. Rice then shot Dunbar seven times, killing him.
Webb testified that once he heard the shots, he ran for safety towards the back of the cut. He then jumped over a fence, looked back into the shadowy cut, and saw appellant, whom he knew from the neighborhood as "Erky-Berk." Appellant stood about fourteen feet away with his arm raised. Webb testified that appellant fired two or three shots at him, none of which hit, but acknowledged that he could not see a weapon in appellant's upraised hand. Webb ran to a friend's house and told him what happened; the friend testified at trial that Webb told him, "[T]he guy tried to shoot me because I saw him." Webb later identified appellant and Rice from separate photo arrays, and he identified appellant in court.
This was not Webb's first encounter with appellant and Rice that day. He had seen both of them earlier "[h]anging around K Street," and on other occasions he would frequently see them "[w]alking along or sitting in the cut." Appellant was wearing the same outfit — "yellowish" boots, black jeans, and a gray sweatshirt — when Webb saw him in the cut as he had been wearing "around noon" that day. Other witnesses also testified to the fact that appellant and Rice were frequently seen together in the neighborhood.
Jermaine Goings saw two men who he thought were appellant, whom he knew well, and Rice, with whom he was acquainted, emerge from the cut and shoot Dunbar. *fn2 After the shooting, Goings saw the two then run back into the cut. *fn2 Janice Dudley, who [716 A2d Page 163]
lived in the 200 block of K Street, walked out of her house after she heard the gunshots and saw appellant and Rice running together out of a second cut closer to Third Street. Dudley lived on that stretch of K Street for most of her life and had known appellant for approximately twenty years. She saw appellant "very often." Rice, she testified, "was new to our neighborhood just by two to three years." Although Dudley knew Rice, too, she saw him less frequently than she saw appellant.
On May 10, 1995, while executing a search warrant in an unrelated case at 211 I Street, S.E., police recovered the following note:
What's up? Right about now you and Drapper probably have some fun. I need you to talk to Vance before the lawyer's talk to him for you can program him on what to say. I am going to give you his number 554-0577 he also surpose to get in contact with somebody for me. I need you to tell him what to say. Because! I don't what to talk to him like that on the phone. Alright! I want him to say that Erik and Arthur was standing across the street in the cort when the shooting started and he saw people running and screaming. Tell Mr. William's that I said Hayman. I appreciate where thing you have done for me. Thank's man you and shorty be easy and take care. *fn3
The letter was undated and unsigned, although an expert testified that it was in appellant's handwriting. The "Vance" identified in the note proved to be Vance Matthews, a young man who lived in the neighborhood. He was acquainted with appellant, Rice, and Dunbar, and his telephone number was the same number in the note. Matthews did not witness the shooting implicating appellant and Rice because he was watching a televised boxing match at a friend's house on Third Street, S.W.
We start with appellant's challenge to his conviction for accessory after the fact to first degree murder while armed. *fn4 The jury returned only a general verdict, but the government argues that the conviction is based on appellant's actions immediately after the murder of Dunbar, including his encounter with Webb in the cut and his flight with Rice out of another cut.
The elements of accessory after the fact to first degree murder while armed are: (1) that the offense of first degree murder while armed had been committed, (2) that the defendant knew that this offense had been committed, (3) that, knowing that this offense had been committed, the defendant provided assistance to the person who committed it, and (4) that the defendant did so with the specific intent to hinder or prevent that person's arrest, trial, or punishment. See Criminal Jury Instructions for the District of Columbia, No. 4.01 (4th ed. 1993); see also Butler v. United States, 481 A.2d 431, 442-43 (D.C. 1984). The jury was instructed accordingly without objection.
That Rice committed first-degree murder of Dunbar is uncontested. However, [716 A2d Page 164]
as noted above, a defendant may not be convicted of accessory after the fact to murder unless the government has proven that the defendant knew before he acted that the murder had actually been perpetrated. See Little v. United States, 709 A.2d 708, 712-14 (D.C. 1998). From the sequence of events, we think the jury could conclude beyond a reasonable doubt that appellant knew Rice had murdered Dunbar. Appellant was placed as a witness to the event. Dunbar was shot seven times at close range, three times to the head, from which the jury as well as appellant could infer that death was instantaneous. In any event, from the close affiliation of Rice and appellant both before and after the killing, the jury could reasonably infer that appellant was aware of Rice's plan to kill Dunbar and, at least by the time of the joint escape and running out of the cut, Rice had apprised appellant of the success of the mission.
A third element of the offense of accessory after the fact is that the defendant "act personally to aid or assist the felon to avoid detection or apprehension for the crime or crimes." Outlaw v. United States, 632 A.2d 408, 411 (D.C. 1993) (quoting Howell v. State, 62 Md. App. 278, 489 A.2d 55, 58 (1985)). As to the types of conduct that aid or assist the felon in this respect, examples include "open force and violence to rescue or protect him," id. (quoting IV W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 38 (Chitty ed. 1826)), "inducing a witness to absent himself or to remain silent," id. at 411-12 (quoting 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, SUBSTANTIVE CRIMINAL LAW § 6.9, at 168-69 (1986)), and "aiding the felon in making his escape," id. at 411 (quoting 2 LAFAVE & SCOTT, supra, § 6.9, at 168).
The government maintains that appellant engaged in two different actions that provided after-the-fact assistance to Rice. The first was shooting at or otherwise threatening Webb in the cut. This action, the government argues, provided assistance to the principal felon in two ways: (1) by attempting to eliminate an eyewitness to the murder or at least intimidate him to not speak with authorities about the matter or testify at trial, and (2) by scaring off Webb and thereby preventing an attempt to pursue Rice or interfere with his escape.
We think a reasonable jury could conclude that appellant shot at Webb in an effort to "induc[e] a witness to absent himself or to remain silent." See Outlaw, supra, 632 A.2d at 411-12 (quoting 2 LAFAVE & SCOTT, supra, § 6.9, at 168-69). Webb had passed Rice and even spoken to him moments before Rice shot Dunbar; he also looked back through the cut and personally witnessed the murder. A jury could reasonably infer that, by firing in Webb's direction, appellant wanted to frighten away a key eyewitness and also suggest the consequences of antagonizing Rice. The shooting also was susceptible to an interpretation as "open force and violence to rescue or protect" the felon by clearing an escape route through the cut. See id. at 411 (quoting BLACKSTONE, supra, at 38). Goings testified that appellant and Rice ran together into the cut immediately after Dunbar was shot, and Dudley later saw the two emerge from a second cut nearby.
That the jury acquitted appellant of the various counts relating to the Webb incident, see note 1, supra, does not negate the sufficiency of the evidence as to the conviction for being an accessory after the fact. "It is now well-established that inconsistent verdicts by themselves do not mandate reversal." United States v. Dobyns, 679 A.2d 487, 490 (D.C. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1859, 137 L.Ed.2d 1060 (1997); see also (Diane) Smith v. United States, 684 A.2d 307, 312 (D.C. 1996). So long as the evidence was sufficient to support the conviction in question, the fact that the jury acquitted the appellant of certain related counts does not invalidate the conviction. Ransom v. United States, 630 A.2d 170, 172 (D.C. 1993). *fn5
Furthermore, the outcomes are not necessarily inconsistent. The government was not able to introduce a working pistol or discarded shell fragments that it could link to the [716 A2d Page 165]
Jones-Webb altercation and Webb suffered no bullet wounds. The trial court in granting judgments of acquittal on the counts of carrying a pistol without a license and assault with intent to kill while armed expressed concern about the possible use of an imitation firearm. These and other aspects of the case might have led the jury to have some doubt as to the related counts but still remain thoroughly convinced that Jones's activities in the cut against Webb made him an accessory after the fact. *fn6
The second form of assistance rendered by appellant, the government argues, was to join Rice and escort him as he ran through the cut and an adjacent one and emerged further up K Street. Appellant might be presumed to have carried the same weapon Webb thought he had brandished in the cut, and to have remained available to scare off or eliminate any others he and Rice might encounter during their flight. The jury arguably could find that by escorting Rice through two cuts, into K Street, and off into the distance, appellant was "aiding the felon in making his escape." See Outlaw, supra, 632 A.2d at 411 (quoting 2 LAFAVE & SCOTT, supra, § 6.9, at 168). Cf. Prophet v. United States, 602 A.2d 1087, 1092-93 (D.C. 1992) (affirming conviction for aiding and abetting robbery where, inter alia, appellant "followed behind [the principal], looking in all directions as a lookout might do . . . [,] watched the robbery and murder and immediately met up with [the principal] at the other end of the alley through which [he] fled."). *fn7
But we need not here decide whether the evidence of the second form of asserted assistance would alone suffice to support the verdict. Even if joining Rice in his flight would not in itself be enough to render appellant an accessory after the fact, this action could be considered by the jury as further proof bearing upon the nature and purpose of any ambiguous action in the cut. *fn8 The "Dear Butchie" letter provided further evidence to the same end, vividly demonstrating that appellant was quite interested in preventing Rice's apprehension, trial, or punishment. Appellant had written that he needed to "program [Vance] on what to say," not only on the whereabouts of appellant himself but also those of Rice. Cf. Ruffin v. United States, 524 A.2d 685, 706 (D.C. 1987) (per curiam) (holding that sufficient evidence supported an accessory after the fact conviction where, inter alia, appellant urged principal not to speak to the police). The jury might also have taken the letter as a reflection of appellant's consciousness of his ...