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Davis v. United States

August 12, 1999


Before Terry, Schwelb, and Ruiz, Associate Judges.

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

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia

(Hon. Harold L. Cushenberry, Jr., Trial Judge)

Submitted and Argued May 4, 1999

Decided August 12, 1999

This is a case in which an apparent dispute over turf between two groups of very young men had fatal consequences, ending one life and ruining two more. On February 12, 1997, a jury found Marvin A. Sanders, Jr. guilty of first-degree murder while armed *fn1 and related weapons offenses *fn2 in connection with the shooting death on June 30, 1995 of Nathaniel Brown. Faouly Davis was found not guilty of first-degree murder, but he was convicted of the lesser included offense of second-degree murder. Both defendants filed timely appeals on various grounds. We affirm.



The government's theory at trial was that Brown was murdered as a result of animosities between certain residents of Florida Park, where Sanders and Davis lived, and young men from Sursum Corda, which was Brown's neighborhood. These animosities apparently grew out of rivalries between high school cliques. Sanders and Davis, both of them still in their late teens, evidently did not like guys from Sursum Corda "hanging around" Florida Park. In spite of his residence in Sursum Corda, Brown had friends in the rival neighborhood. To visit these friends, Brown would have to intrude upon the defendants' turf. It was just such an intrusion that is alleged to have led to Brown's death at the age of eighteen.

David Kinard was a key witness for the government. Kinard testified that on June 30, 1995, Nathaniel Brown rode his bicycle into a park located near the corner of Florida Avenue and First Street in northwest Washington, D.C. Upon arrival, Brown was surrounded by a group of five or six young men, including both of the defendants. According to Kinard, the men boxed Brown in from all sides, inhibiting his movements. Davis stood behind the rear wheel of Brown's bicycle and helped to prevent Brown from escaping in that direction. According to Kinard, Sanders then shot Brown six times in cold blood. Upon completing his deadly task, Sanders immediately ran off further into the park. Kinard testified that Davis remained on the scene and stood over Brown's body, gloating and uttering "little slurs," e.g., "[w]e carry big shit up here. Don't come up here with that bullshit."

Kinard, a recent graduate of a Salvation Army drug treatment program, admitted on cross-examination that he had been stabbed and seriously wounded by Sanders a few years earlier, and that his evidence against Sanders had provided him with an "opportunity" for revenge. *fn3 Kinard was also confronted with his grand jury testimony, which differed in some respects from his evidence at trial with respect to where he was standing when the shooting occurred and as to his ability to observe the events that he was describing. Kinard acknowledged that he did not contact the police immediately after the murder to reveal the identity of the killer. Further, Kinard was impeached with several prior convictions, and he testified that he had agreed to cooperate with the prosecutors in this case in the hope that he would receive some assistance from them with respect to charges then pending against him in Virginia. *fn4

Kinard's identification of Sanders as the shooter was corroborated in some measure by several other witnesses. Annette Terry, a woman who lived nearby, testified that after hearing shots ring out in the park, she had seen a person whom she believed to be Sanders run past her home; Ms. Terry did not, however, witness the shooting. *fn5 Alvin Tapp, an elderly man who admitted that he was consuming alcohol at the time, claimed that he was sitting in the park, four feet from the location of the shooting, and that he saw Sanders fire at Brown; Tapp, too, was heavily impeached. *fn6 Danny Duncan placed both Davis and Sanders in the park on the evening of June 30, 1995, and he identified Sanders as the shooter, but Duncan's credibility came under heavy defense fire. *fn7

There was also purported "motive" testimony against both defendants. Duncan claimed that approximately a month and a half before the shooting, he and Davis and other Florida Park residents were shooting dice in a parking lot when Brown came on the scene. According to Duncan, Davis was displeased by Brown's intrusion and remarked that "if we [got] caught in their neighborhood we wouldn't get out alive." Mitchell Johnson testified that, earlier in the summer, Sanders had instructed him to "tell them niggers down there that it's whatever ...

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