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U.S. v. BAMIDURO

September 17, 1998

UNITED STATES, APPELLANT/CROSS-APPELLEE,
V.
OLUWAKAYODE A. BAMIDURO, APPELLEE/CROSS-APPELLANT.



APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, MILDRED M. EDWARDS, J. [718 A2d Page 548]

Before Schwelb and Farrell, Associate Judges, and King, Associate Judge, Retired.

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

The United States appeals from a partial grant of a motion for judgment of acquittal following guilty verdicts. See D.C.Super.Ct.Crim.R. 29(c) (1998). Although defendant Bamiduro's identification as the person who shot at Lieutenant Shannon was vulnerable to attack before the jury, we are unable to conclude — as the trial judge did — that no rational juror could have found beyond a reasonable doubt that Bamiduro was the assailant. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Shannon's identification of Bamiduro was itself legally sufficient, and drew substantial corroborative support from the events surrounding the shooting. We therefore reverse the partial grant of the MJOA and remand with directions to reinstate the vacated convictions.

I.

A.

A July 1997 indictment charged Bamiduro with assault with a dangerous weapon (ADW) on David Ejeh, D.C.Code § 22-502 (1996); ADW on Olajide Soremekum; possession of a firearm during a crime of violence (PFCOV) arising from the assault on Soremekum, D.C.Code § 22-3204(b); ADW on Lieutenant Toby Shannon; PFCOV arising from the assault on Shannon; and carrying a pistol without a license, D.C.Code § 22-3204(a).

Following a jury trial, Bamiduro was found guilty of all counts except PFCOV as to Soremekum. Bamiduro moved for a judgment of acquittal as to the remaining counts and for a new trial under Super.Ct.Crim.R. 33, alleging a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). *fn1 The trial judge denied the Rule 33 motion and denied the MJOA as to the Ejeh and Soremekum counts, but set aside all of the verdicts related to Shannon on grounds of insufficient evidence.

B.

Viewed in the light most favorable to the verdicts, Jackson, 443 U.S. at 319, 99 S.Ct. 2781, the evidence presented at trial showed the following. In late February or early March 1997, Bamiduro and Ejeh, both students at Howard University, had an argument over the use of Ejeh's racquet during a practice session for the university table tennis team. Soremekum, also a Howard student and a teammate of Ejeh, intervened to prevent a fight. Bamiduro and Ejeh had no further direct communication until May 11, 1997.

Shortly after 9:00 on that evening, Soremekum was on his way to meet Ejeh at Howard to fill out an application for a summer job. He encountered Bamiduro near the school and told him where he was going, then continued on alone to the chemistry building. Since the building was locked, he telephoned Ejeh, who came out to meet him. Bamiduro appeared again and the three men entered the building together. As Ejeh was opening the inner foyer door, he "heard a bang on [his] head," blood started "gushing out" of it, [718 A2d Page 549]

and he screamed. He covered his head with his hand but was struck again on the arm with a metal object. Soremekum exclaimed, "Olu [Bamiduro], why are you doing this?" and grabbed Bamiduro, who was starting to leave, but released him when Bamiduro put a "silver object that looked like a gun" against Soremekum's stomach. Ejeh chased Bamiduro out of the building and toward the engineering building; Soremekum ran behind yelling to him to stop because Bamiduro had a gun. Soremekum later described Bamiduro as wearing a leather jacket and a "face cap, like a baseball cap." Ejeh identified him as wearing a jacket and "face cap" that were "kind of dark brown."

Ejeh saw Bamiduro stop at a parked car between College Avenue and Sixth Street, open the driver's side door and lean into the car, then close the door and continue running. Howard University campus police officer Lesesne was patrolling the area and, looking north on Sixth Street near College Avenue, saw two black males running after a third. *fn2 No one else was in the area, and Lesesne assumed that the runners came from the chemistry or engineering building. He saw the pursued male stop at the driver's side of a gray Toyota Tercel, the only car parked on Sixth Street, then flee again; the two pursuers broke off the chase. The Tercel was later found to contain a traffic ticket bearing Bamiduro's name.

As Lesesne ran after the lone male, he radioed to Howard University police Lieutenant Shannon, "You have a black male coming your way" who might have been "trying to break into a car." *fn3 The fleeing male turned east on Bryant Street where Shannon saw him and radioed, "I picked him up. I've got him right here and I'm chasing him." Shannon had seen a man with dark pants and a dark baseball cap running east on Bryant Street; no one else was on foot in the vicinity. *fn3 In his campus police car, Shannon pursued the runner across a parking lot and tried to cut him off. Through the open passenger side window he saw the runner's face and saw him pull out a handgun. Shannon drew his weapon and found cover at the rear of the car. Ten seconds later he heard a gun shot. The shooter then ran off through an alley and Shannon radioed the campus police and the Metropolitan police. The gunshot had penetrated the windshield and dashboard of his car.

Shannon was the only witness to the actual shooting. A few days later he was shown photographs of possible suspects, including Bamiduro, but could not identify the assailant. On May 30, nineteen days after the shooting, he was called to a student-discipline hearing between the dean of the university and Bamiduro. When Bamiduro arrived at the hearing, Shannon "immediately recognized him" from his "facial features," particularly his nose and "thick lips," as the man he had chased; he was "a hundred percent sure" Bamiduro was the fleeing person. *fn4 At trial, Shannon stated that he had seen the man's face and most of his upper body for "a few seconds" through the open passenger-side window of the police car; both were turned toward him. He described the assailant as ...


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