Before Farrell, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeals from the Superior Court of the District of Columbia Criminal Division (Hon. Henry F. Greene, Trial Judge)
Appellant Eugene Busey appeals from his convictions for first degree felony murder while armed,*fn1 first degree premeditated murder while armed,*fn2 armed robbery,*fn3 possession of a firearm during a crime of violence,*fn4 and carrying a pistol without a license.*fn5 Busey raises four issues for our review: whether the evidence supported his convictions for premeditated murder, felony murder, and armed robbery; whether the admission of prior bad acts evidence and the trial judge's failure to instruct the jury regarding that evidence was prejudicial error; whether the trial court erred in admitting evidence of five cartridges found in Busey's apartment; and whether the trial court should have granted a new trial for newly discovered evidence. We affirm.
Busey's convictions arose out of the shooting of Michael Dickens on December 10, 1993. Government witnesses testified that early that morning, Busey had sold drugs to Dickens, who was sharing his purchases with them in an apartment rented by Carletta Inman. The first transaction involving Busey took place in the hallway of a nearby apartment building. Pamela Jones, who lived across the hall from Busey, gave him a twenty dollar bill and asked for "a twenty rock of cocaine." Busey went into his apartment and did not come out. While Jones was waiting for him outside of his apartment door, she asked Karen Brooks, who witnessed their exchange, to go to Carletta Inman's apartment and "watch Mike" (Dickens). Brooks did so, and returned several minutes later because Dickens wanted to know why Jones was taking so long. After some thirty minutes, Busey still had not emerged from his apartment, so Jones went back to Carletta Inman's apartment. At that time, Carletta Inman, her siblings Jennifer Inman and Russell Inman, Michael Dickens, David Robinson, and Karen Brooks were all in the apartment.
At some point, Busey, whom witnesses referred to as "Geno," arrived at Carletta Inman's apartment, and Pamela Jones asked him about the twenty dollars she had paid him earlier. Busey denied ever receiving the money. Dickens heard this conversation and said not to "worry about it." Pamela Jones then left Carletta Inman's apartment and went to wake her sister, Brenda Jones, who was sleeping in a nearby apartment. Brenda Jones and Dickens had a close relationship, and Pamela told Brenda that Dickens was being generous, giving his money away and buying people drugs. Brenda and Pamela then went to Carletta Inman's apartment. Busey was no longer there. Pamela Jones smoked some cocaine there, left to visit another friend's house in the vicinity for about five minutes, and then returned to her mother's house and went to sleep.
Meanwhile, upon arriving at Carletta Inman's apartment, Brenda Jones initially went into the bathroom where Dickens was sitting, and then she and Dickens moved to the "first bedroom" (the bedroom closest to the front door of the apartment). There Dickens gave her two twenty dollar bills and asked her to go purchase two rocks of cocaine. Brenda Jones testified that Dickens removed the money from his right sock. She also testified that after Dickens gave her the forty dollars, he put approximately three hundred dollars back in his sock. Brenda went out to the apartment building next door, bought two "twenty bags" of cocaine, and returned to Carletta Inman's apartment where she gave the drugs to Dickens, who was still in the first bedroom. Dickens shared the drugs with the other people in the apartment.
Dickens then sent Brenda Jones out again to purchase drugs, giving her two more twenty dollar bills from out of his sock. Brenda left the apartment, bought two twenty bags of cocaine, and returned. When she arrived back at Carletta Inman's apartment, she found Busey had returned and was talking with Dickens in the first bedroom. The two men were sitting on the bed, and Dickens had a twenty dollar bill in his hands, which he handed to Busey. Busey then left the apartment, and Brenda Jones closed the bedroom door to express her anger at Dickens for showing Busey where Dickens kept his money. After that, Dickens and Brenda Jones smoked some of the cocaine that she had just purchased. While they were still in the bedroom, Jennifer Inman knocked at the door and said that "Geno wants to know is Mike all right." Busey, who had returned to the apartment,*fn6 then knocked on the door and said he wanted to "holler at Mike." Brenda Jones opened the door, and Busey asked to speak to Dickens alone. Dickens consented, Brenda Jones left the room, and the door closed. Witnesses heard voices coming from the first bedroom, but they heard nothing that suggested that Dickens and Busey were arguing. Jennifer Inman heard Busey ask Dickens how much money he usually spent when he came in the area. Dickens answered six to seven hundred dollars. The next thing witnesses heard was a gunshot coming from the first bedroom.*fn7
Less than one minute later, the door to the first bedroom opened, and Busey emerged. Witnesses reported that he said something like "I don't fuck with you all like that, anyway" or "If any of you all mother fuckers say anything, I'll kill you." Busey then left the apartment and saw David Robinson, who had run out of the building upon hearing the gunshot, in his car. Busey stated that "if anybody says anything they are going to get the same thing," and then asked Robinson for a ride. Robinson asked what had happened, and Busey responded, "[I]t's best for you not to know anything anyway." Robinson testified that Busey appeared calm and did not seem excited. Robinson dropped him off at East Capitol Street and Benning Road at approximately 6:00 a.m.
After the shooting, Brenda Jones and Russell Inman went into the first bedroom and saw Dickens lying on the bed with a gunshot wound to the head. Brenda Jones testified that as soon as she walked into the room she saw that Dickens no longer had his money in his sock because his pant leg was pulled up and his right sock was down. After staying a few minutes to ascertain whether Dickens was still alive, Brenda Jones ran out of the apartment and went to her mother's house. She woke up her sister, DeAngela Jones, shaking and crying, and told DeAngela to call an ambulance. DeAngela Jones testified that when she asked her sister, Brenda, what was wrong, Brenda said "that Geno had killed her friend Mike." Pamela Jones testified that she too was awakened by her sister, Brenda, and that Brenda was in a state of "nervous shock . . . crying, trembling, holding her head, stretching her head like she was going out of her mind." Pamela Jones stated that Brenda told her "[t]hat Geno had just shot Mike in the head."
After being dropped off by Robinson on Benning Road, Busey paged his girlfriend's brother, Cedric Gordon, and told Gordon to stay away from Elvans Road, the location of Carletta Inman's apartment. Later that evening Busey asked Gordon to retrieve some clothes for him from Gordon's sister's apartment on Elvans Road. Gordon complied and brought the clothes (which were already packed in a bag in his sister's apartment) back to Busey. Gordon also told Busey that he could stay in Gordon's apartment. A couple of days later, Gordon came home to find Busey there.
A medical examiner testified that the cause of Dickens' death was a single gunshot wound to the head. According to a police firearms expert, the slug recovered by the medical examiner was fired from a revolver and was either a .38 caliber special or a .357 caliber magnum bullet.*fn8 A police evidence technician testified that he recovered five .38 special bullets from Busey's apartment during the execution of a search warrant there later on the morning of the shooting.
DeAngela Jones and Pamela Jones also testified that two days before the shooting, they were in the hallway of their apartment building and saw Busey holding a silver-colored revolver*fn9 with a barrel length of eight to ten inches. In accordance with a pretrial in limine ruling by the trial judge, the government initially did not attempt to bring out the circumstances under which DeAngela and Pamela saw Busey with the gun. However, after defense counsel cross examined DeAngela Jones regarding her veracity on this point, focusing on her inability to remember the details of what she saw, the trial judge ruled that defense counsel had opened the door to further testimony on redirect examination about the details of the incident. DeAngela Jones then testified that two days before the murder of Dickens, Busey had pointed the gun she described at her head in the presence of Pamela Jones and demanded that she admit she and Busey had engaged in certain specific sexual acts. When DeAngela Jones refused to admit this, Busey pulled the trigger, but the gun did not fire. Pamela Jones testified to essentially the same facts regarding this event.
Lynette Hill was the only witness for the defense at trial. Ms. Hill testified that she lived directly below Carletta Inman's apartment on Elvans Road and did not hear a gunshot in the apartment above her on December 10, 1993.
On June 16, 1994, a jury found Busey guilty of armed robbery, first degree felony murder while armed, first degree premeditated murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Busey was sentenced on August 18, 1994.
On March 25, 1998, Busey filed a motion for new trial on grounds of newly discovered evidence. The basis for this motion was Busey's proffer of a newly discovered witness who had allegedly "observed what appeared to be an attempt to throw a body over an apartment balcony where the murder occurred." Busey's counsel had located the witness, a Mr. Brown, with the help of an investigator. The investigator supplied an affidavit stating that Mr. Brown had told her that he witnessed "the disposal or attempted disposal of a man's body in the early morning hours of December 10th, 1993." Mr. Brown was not willing, however, to provide an affidavit or written statement himself. Busey requested a hearing so that Mr. Brown could be subpoenaed to give more detailed testimony and the court could determine the credibility and impact of his statement. In a written memorandum and order issued on June 22, 1998, the trial judge denied the motion for a new trial without a hearing, on the grounds that ...