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Boykin v. United States

September 23, 1999

VERNON M. BOYKIN, APPELLANT
V.
UNITED STATES, APPELLEE



Before Terry, Farrell, and Reid, Associate Judges.

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

Appeal from the Superior Court of the District of Columbia (Hon. Reggie B. Walton, Trial Judge)

Argued April 8, 1999

Appellant Boykin was convicted of second-degree murder while armed,*fn1 possession of a firearm during a crime of violence,*fn2 and carrying a pistol without a license, all arising out of the shooting death of *fn3 Gary Jordan. On appeal, Mr. Boykin contends that the trial court erred when it precluded defense counsel from eliciting evidence that a government witness disposed of a gun shortly after the shooting. He claims that evidence about the gun was an integral part of his defense that another person, also a government witness, shot Mr. Jordan. Ruling that the only evidence connecting the gun to the alleged third-party perpetrator was not reliable, the court held that the gun evidence was not relevant. Without deciding whether the trial court erred, we hold that any possible error was harmless and therefore affirm the conviction.

I.

A. The Government's Evidence

Shortly before 6:00 p.m. on December 8, 1994, Kevin Holley and three friends, Gary Jordan, Maurice Williams, and Raymond Pettus, stopped at a McDonald's restaurant at the corner of Georgia Avenue and Peabody Street, Northwest, while on their way to a basketball game. While his friends went inside, Holley stayed in the parking lot to eat food he had previously purchased from a different restaurant. As he sat in his car, he saw a friend from school, Kenitra Tinsley, standing in the doorway of a nearby apartment building where she lived.*fn4 When she waved at him, Holley walked over to speak with her. While Holley and Tinsley were talking, appellant Boykin came out of the building and said something "as if he was mad."*fn5 "Just to throw him off like it was nothing" and "let him know that she is not my girl," Holley grabbed Tinsley and remarked,"She [is] just my little sis." Holley then returned to his car in the parking lot. From there he saw Boykin and Tinsley leave the apartment building and run in different directions. Concerned, Holley drove up to the front door of the McDonald's to pick up his friends.

Boykin's cousin, Brian Warren, returned home shortly thereafter to find Tinsley knocking on his door. She told him that "some guys from Emery Park [were] trying to jump your cousin around the corner." Joined by Eric Brock, Warren's friend and neighbor, Warren and Tinsley headed back to the Barry Apartments. When the three of them rounded the front of the building, they could see Kevin Holley and Gary Jordan at the upper end of the nearby McDonald's parking lot.*fn6 According to Warren's testimony, Holley was uttering obscenities and "threatening everybody," while Jordan was trying to calm him down, telling him to "be cool . . . and all that." Warrren, Brock, and Tinsley did not see Boykin anywhere in the vicinity, so they started to leave. Just then, however, Boykin emerged from around the side of the apartment building. Boykin, Warren, and Brock then proceeded together across the parking lot toward the restaurant.

Holley, meanwhile, had driven back to the restaurant entrance to let his friends "know that something might be going on" and to urge them to hurry. Holley wanted to leave because he was "not in his area." Jordan returned to the car with Holley, but the others remained inside waiting for their food. Through the car's mirrors Jordan and Holley saw Boykin, Warren, and Brock approaching. Jordan recognized Warren and got out to talk to him. When Holley also stepped out of the car, Boykin invited him to go behind a trash dumpster to fight; Holley refused, and the two began arguing. Jordan continued his conversation with Warren, while Brock stood on the restaurant steps.

Raymond Pettus and Maurice Williams came out of the restaurant to find their friends Jordan and Holley arguing with Warren and Boykin. They walked into the parking lot and stood next to Jordan, less than three feet from Boykin and Warren. They quickly realized that Boykin was upset because Holley had been talking to Tinsley,*fn7 while Jordan and Warren were attempting to calm things down. *fn8

Holley then noticed a police officer standing at the door of the restaurant and decided he should move his car because there "was too much attention around [the] car" and he "didn't want to make a scene." As Holley headed toward the car, Boykin asked him, "What are you running to get? A gun?" Holley replied,"No man. We are trying to leave." Holley then drove out of the lot to find a parking space on Georgia Avenue, while Jordan continued talking to Warren. *fn9

After Holley left, Boykin asked Jordan, "What the [expletive] is up with you?" Then turning to Brock, who was still standing on the steps of the restaurant, he said, "Hey, Brock, tell him he don't know me." Pettus, Jordan, and Williams then started to walk away. Just as they turned their backs, Boykin pulled out a .38 caliber revolver and shot Jordan twice in the back from a distance of three to six feet. Hearing the shots, Williams "ducked down and turned around and [saw] the gun in Boykin's hand."*fn10 He and Pettus both saw Boykin run to the rear of the parking lot toward the Barry Apartments immediately after the shooting. Williams noticed that Warren ran in the same direction.

Despite his wounds, Jordan ran to a nearby liquor store, followed by Pettus. As Jordan was coming out of the store, Pettus caught up with him, and together they walked toward a police cruiser that was pulling out of the parking lot next to the Fourth District police station, directly across Georgia Avenue. Jordan told the officers in the car that he had been shot and exclaimed, "I am about to die. I am about to die." The police sat Jordan down in the back of the car and asked him for a description of his assailant. Jordan told Officer John Branch that the shooter had "a dark-colored trashman's suit on . . . possibly blue in color," and that he had run in the direction of the Barry Apartments after the shooting. Pettus gave police a similar description of the gunman's clothing.*fn11 The police broadcast a lookout for a person matching the description. Moments later, when the officers asked who shot him, Jordan responded (according to Pettus), "Eric Brock. The boy who shot me was Eric Brock." *fn12

While driving around the block searching for a place to park, Holley saw Warren and Boykin crossing the street in front of the apartment building where he had earlier visited with Ms. Tinsley.*fn13 Boykin was carrying a gun in his right hand. When he saw Holley, Boykin started running toward 13th Place, but Warren walked over to the car to talk to Holley. After speaking with Warren, Holley went back to the McDonald's parking lot to pick up Jordan, Pettus, and Williams. By then, however, the lot was filled with police cars and an ambulance, and officers instructed ...


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