Before Terry, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge.
Appeal from the Superior Court of the District of Columbia (Hon. Herbert B. Dixon, Jr., Trial Judge)
David Q. Black was found guilty by a jury of assault with intent to kill while armed, *fn1 first degree murder while armed (premeditated), *fn2 two counts of possession of a firearm during a crime of violence or dangerous offense, *fn3 carrying a pistol without a license, *fn4 and threatening to injure a person. *fn5 Black raises several issues on appeal: 1) that the trial court erred in denying his motion for judgment of acquittal on the charge of first degree murder; 2) that the trial court erred in denying his motion to suppress in-court and out-of-court identifications by an eyewitness, 3) that the Double Jeopardy clause bars his conviction for assault with intent to kill, and 4) that the government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963). We remand this case for further proceedings on the Brady issue.
The government's evidence at trial showed that on February 2, 1997, at approximately 1:30 p.m., Black was arguing with a man named James Smith (Junebug) in the 400 block of K Street, N.W. Black grabbed a gun from his car nearby and fired twice across a busy street at Smith, instead striking and killing an innocent bystander, Alice Chow. Two eyewitnesses, Larry Johnson and Barbara Marshall, testified that they knew Black and Smith and that they both saw Black and Smith arguing in a parking lot on K Street. Johnson and Marshall testified that they saw Smith run from the parking lot and that they saw Black retrieve a gun from a car and shoot twice at Smith, who was running away towards a church. Mrs. Chow, who was walking home from the church service, was struck by one of the two bullets fired by Black.
Black argues that the trial court erred in denying his motion for judgment of acquittal on the charge of first degree premeditated murder. Black specifically contends that the evidence was insufficient to support his conviction because the government failed to prove that he had acted with the intent to kill. *fn6 In reviewing a denial of a motion for judgment of acquittal, this court must "view the evidence in the light most favorable to the government, giving deference to the fact finder's right to weigh the evidence, determine the credibility of the witnesses, and draw inferences from the evidence presented. We can only reverse a conviction on this ground if there is no evidence upon which a reasonable mind could infer guilt beyond a reasonable doubt." Patton v. United States, 633 A.2d 800, 820 (D.C. 1993).
D.C. Code § 22-2401 states in pertinent part: "Whoever . . . kills another purposely . . . of deliberate and premeditated malice . . . is guilty of murder in the first degree." Therefore, to prove first degree premeditated murder, the government must show that before acting the accused "gave thought to the idea of taking a human life and reached a definite decision to kill." Ruffin v. United States, 642 A.2d 1288, 1291 (D.C. 1994) (quoting Mills v. United States, 599 A.2d 775, 781 (D.C. 1991)) (internal citation omitted). Deliberation requires a showing that "the accused acted with consideration and reflection upon the preconceived design to kill." Id. Both premeditation and deliberation may be inferred from the surrounding facts and circumstances, and may occur in a period "as brief as a few seconds." Harris v. United States, 668 A.2d 839, 842 (D.C. 1995) (quoting Ruffin, 642 A.2d at 1291).
Black's claim that the trial court erred in denying his motion for judgment of acquittal has no merit. The government established at trial that Black and his intended target, Smith, were engaged in a heated argument immediately prior to the shooting. As Black walked to a nearby car, Smith started to run. Black retrieved a gun from the car, pointed his arms while reaching over the car, and fired the gun twice at Smith at relatively close range. Black subsequently fled the scene. Based on this evidence, the jury could reasonably infer premeditation and deliberation. Therefore, viewing the evidence in the light most favorable to the government, the trial court did not err in denying Black's motion for judgment of acquittal. *fn7
Black also argues that the trial court's denial of his motion to suppress his identification by Barbara Marshall was error. He contends that the circumstances under which Marshall made her identification were coercive, and therefore, the functional equivalent of undue suggestivity. In addition, Black posits that Marshall's identification of him was not sufficiently reliable to overcome the alleged coercion. The trial court found that Marshall's identification of Black was not subject to undue suggestivity or coercion, and that her identification of Black was, in any case, reliable. We need not determine whether the identification was unduly suggestive in this case, as the trial court made a finding that it was reliable. See Fields v. United States, 698 A.2d 485, 490 (D.C. 1997) (citing Greenwood v. United States, 659 A.2d 825, 828 (D.C. 1995) (expressing that "if an identification is reliable it is admissible even if suggestive")).
"This court is bound by the trial court's findings on whether identification procedures were impermissibly suggestive and whether an identification was reliable if they are supported by the evidence and in accordance with the law." Turner v. United States, 622 A.2d 667, 672 n.3 (D.C. 1993) (internal quotation marks and citation omitted). In determining whether an identification was sufficiently reliable, this court has articulated five factors to be considered: "(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witnesses' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation." Long v. United States, 687 A.2d 1331, 1337 (D.C. 1997) (citation omitted). In this case, Marshall already knew Black, and she was certain that she observed him shoot at Smith.
With respect to the first factor, Marshall observed Black for a significant amount of time. She was able to observe Black arguing with Smith. *fn8 She saw Smith run away from Black. She then saw Black reach in a car and pull out a gun. Marshall then observed Black lean over the car, point the gun in Smith's direction, and fire two to three shots at Smith. Finally, Marshall saw Black drive away from the scene five or six minutes later. Furthermore, Marshall's attention was so focused on the incident that she testified that she knew the men were fighting because she observed the anger expressed on both men's faces. Because Marshall actually knew Black, she did not give a physical description of him, but was able to positively identify him by name. *fn9 Moreover, after being shown the photographs of both men, Marshall admitted that she knew both men; thus, she was certain that Black was the shooter. Accordingly, the record supports the trial court's determination that Marshall's identification of Black was reliable.
Black also asserts on appeal that the Double Jeopardy Clause bars his convictions for assault with the intent to kill James Smith, and the murder of Alice Chow. He argues that multiple convictions for different statutory offenses cannot arise out of one assaultive act unless both of the victims have been physically injured. Specifically, he contends that because he was convicted of the murder of Chow, and because his assault conviction with respect to Smith was based on an intent-to- frighten theory, the Double Jeopardy Clause precludes the assault conviction. We review claims of the violation of the Double Jeopardy Clause and the merger of convictions de novo. Maddox v. United States, 745 A.2d 284, 294 (D.C. 2000). Under the Double Jeopardy Clause, a person cannot receive multiple punishments for the same offense. See Williams v. United States, 569 A.2d 97, 98 (D.C. 1989). To determine whether "the same act or transaction constitutes a violation of two distinct statutory ...