Before Reid and Washington, Associate Judges, and Belson, Senior
Appeal from the Superior Court of the District of Columbia (Hon. Robert I. Richter, Trial Judge)
(Argued September 21, 1999
Washington, Associate Judge: Appellants Plater, Morrison, and Capies were indicted on charges of second-degree murder while armed,*fn1 and tried jointly. A jury convicted Capies and Plater of voluntary manslaughter, while armed.*fn2 Morrison was found guilty of voluntary manslaughter, unarmed.*fn3 The appeals of Plater, Morrison, and Capies were consolidated by this court. Plater, Morrison, and Capies seek reversal of their convictions based on several grounds. Appellants argue that the trial judge erred by: 1) refusing to instruct the jury on lesser-included charges of aggravated assault for Morrison and assault with a deadly weapon for Capies; 2) refusing to grant Plater's motion for a mistrial based on an improper statement by the prosecutor in his opening statement; 3) denying Plater's motion to sever his trial from non-testifying co-defendants Morrison and Grayson,*fn4 violating his Sixth Amendment Right to Confrontation; and 4) denying Morrison's motion to suppress his videotaped confession because it was involuntary. We affirm.
On June 27, 1996, at approximately 9:00 p.m., Thomas Davis, the decedent, was walking with Vanessa Price, Price's nine-month old granddaughter, and another eight-year-old girl in the area of 16th and East Capitol Streets, N.E. While walking on the north side of East Capitol street, returning to Price's home, Davis was stopped by Capies. Capies confronted Davis, who attempted to run before Capies struck him in the face with a bottle. Thereafter, Capies held Davis while five other men, including Plater and Morrison, began to viciously beat Davis and continued while he fell to the ground. Davis managed to raise himself off the ground and attempted to flee toward the south side of East Capitol street.
The group followed Davis across the street and continued to beat him using various weapons, including a stick, a pipe, and a bat. Davis, again, fell to the ground where his head was pounded against the cement curb. The assailants fled the scene, leaving Davis on the curbside. Davis died on July 2, 1996 from brain swelling due to the grave injuries inflicted from the beating.
A. Lesser-Included Offenses
Capies and Morrison contend that the trial court erred in denying their requests for jury instructions on the lesser-included offenses of assault with a deadly weapon and aggravated assault, respectively. They argue essentially that their confrontation with the decedent was a separate and distinct event, or, alternatively, that they withdrew prior to the fatal blows that killed Davis. For the following reasons, their arguments are without merit.
An instruction on a lesser-included offense is justified if (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge.*fn5 Boykin v. United States, 702 A.2d 1242, 1250 (D.C. 1997) (citations omitted); see also Day v. United States, 390 A.2d 957, 961 (D.C. 1978).
In this case, Capies and Morrison argue, respectively, that assault with a deadly weapon and aggravated assault are lesser-included offenses of voluntary manslaughter, and that based on the evidence in the record they were entitled to have the jury instructed on those lesser-included offenses. Although aggravated assault and assault with a deadly weapon have not been explicitly recognized as lesser-included offenses of voluntary manslaughter in this jurisdiction, there is some support for this contention in dicta of prior decisions of this court. See Day, supra, 390 A.2d at 961-62 (citing Logan v. United States, 144 U.S. 263, 307 (1892) (dicta), United States v. Hamilton, 182 F. Supp. 548, 551 (D.D.C. 1960) (dicta)). However, we need not decide in this case whether assault is a lesser-included offense of voluntary manslaughter because we find that the evidence in the record is insufficient to support a jury instruction on the requested lesser-included offenses.
Capies and Morrison each rely on testimonial evidence to support their respective contentions that there was sufficient evidence in the record to warrant lesser-included assault instructions being given to the jury. Capies argues that Jeffrey Drummond's testimony, that he picked Capies up from the area of the assault on his way to band practice, could lead a reasonable juror to infer that Capies struck Davis in the face with a bottle and then left with Drummond before the group assault began; thus his assault was a separate event entitling him to a lesser-included instruction. Morrison relies on his own statement to the police, in which he admits to punching Davis twice with his fist while Davis was on the side of the street opposite from that on which the decedent died.*fn6 In the alternative, Capies and Morrison contend their respectively proffered evidence raises an inference that they withdrew from the group assault at some point and that their withdrawal constitutes sufficient grounds for giving jurors a lesser-included assault instruction. We disagree.
Despite their assertions to the contrary, neither Drummond's testimony nor Morrison's statement raises a reasonable inference that the actions of Capies and Morrison during the assault against Davis were separate and distinct from the involvement of the other participants in the assault. The only reasonable inference that can be drawn from Drummond's testimony is that Capies did not assault Davis because he was not present during the assault.*fn7 Morrison's statement at most suggests that he stopped beating Davis before Davis was finally killed. However, no reasonable juror viewing this evidence could possibly conclude that Capies and Morrison were somehow involved in a separate assault. To the contrary, the overwhelming evidence indicates that they were inextricably involved in the very assault that led to Davis' death. The undisputed evidence is that Capies struck the first blow hitting Davis in the face with a bottle. Capies then held Davis while Morrison and Plater, among others, viciously beat him. After Davis was originally knocked to the ground, he attempted to flee but got no further than the other side of the street before the beating continued. The entire episode lasted no more than twenty minutes. The evidence in this case clearly and unequivocally establishes that the beating of Davis was "a continuing course of assaultive conduct, rather than a succession of detached incidents," In Re T.H.B., 670 A.2d 895, 900 (D.C. 1996) (citation and internal quotation marks omitted), and in this jurisdiction it is well settled that an assault that results in a death is a homicide. See Hebron v. United States, 625 A.2d 884 (D.C. 1993). Both Capies and Morrison participated in the assault that resulted in Davis' death and as a matter of law, they were not entitled to a jury instruction on any charge other than the homicide charge.
The alternative argument raised by Capies and Morrison that they withdrew from the assault before the decedent was killed and thus were entitled to a lesser-included assault instruction is equally without merit. Legal withdrawal has been defined as "(1) repudiation of the defendant's prior aid or (2) doing all that is possible to countermand his prior aid or counsel, and (3) doing so before the chain of events has become unstoppable." 2 LaFave & Scott, Substantive Criminal Law § 6.8 (d), at 162 (2d ed. 1986). In Harris v. United States, 377 A.2d 34, 38 (D.C. 1977), this court expressed that to withdraw from a criminal venture a defendant charged as an aider and abettor "[m]ust take affirmative action to disavow or defeat the purpose, or definite, decisive and positive steps which indicate a full and complete disassociation." (citations omitted). The defendants' fleeing of the crime scene after participating in the assault does not constitute legal withdrawal. See LaFave and Scott, supra, § 6.8 (d) (commenting that "simple flight from the crime scene is not enough"); Harris, supra, 377 A.2d at 38. There is no ...