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Boone v. United States

March 29, 2001

MICHAEL E. BOONE AND HAROLD A. STONE, APPELLANTS
v.
UNITED STATES, APPELLEE



Before Terry, Farrell, and Glickman, Associate Judges.

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

Appeals from the Superior Court of the District of Columbia

(Hon. Susan R. Winfield, Trial Judge)

Argued September 16, 1999

After a jury trial, both appellants were convicted of first-degree murder while armed and two related firearms offenses. The charges arose from the murder of Carlos Kemper in the early morning hours of December 20, 1992. In these consolidated appeals, appellants contend: (1) that the trial court abused its discretion by admitting evidence of other crimes and by denying appellant Stone's motion for severance; (2) that the government failed to disclose Brady material *fn1 early enough to enable the defense to make effective use of it; (3) that the court violated appellant Boone's Sixth Amendment right to confront witnesses; and (4) that the court erred in failing to give a limiting instruction concerning certain hearsay testimony. We reject all of these arguments and affirm all of the convictions.

I.

A. The Government's Evidence

Rufus Mayfield, a crack cocaine dealer who worked primarily in the 1500 block of Seventh Street, N.W., testified that he and both appellants were members of a drug syndicate known as "1512." According to Mr. Mayfield, Ronald "Poo" Nicholes was "the man that people purchased the drugs from" and was the principal supplier of crack for the enterprise. Mayfield also testified that in addition to selling crack for Nicholes, both appellants acted as enforcers for the 1512 organization. "As enforcers . . . if somebody else came there and tried to hustle or started a beef or something, they were the ones that were going to take care of it."

At approximately 1:00 a.m. on December 20, 1992, Ronald Nicholes and his girl friend, Sophia Wright, were having a conversation outside 1516 Seventh Street. As they were chatting, a man with "a black mask over his face with his eyes showing" started to walk past the couple and then suddenly grabbed Ms. Wright, placing a gun against her back. The gunman forced Nicholes and Wright into a nearby parking lot, then took their money and told them to run. Ms. Wright testified that during the course of the robbery the assailant's mask slipped off, and when it did, she recognized his face. Although she could not recall his name, Ms. Wright said she had seen him with appellant Boone earlier that week in the Seventh Street area.

After the robbery, Ms. Wright and Mr. Nicholes went to the front of 1512 Seventh Street. A crowd of about eight people, including both appellants, also gathered there to discuss the incident. According to Ms. Wright, a man named Norris, who had witnessed the robbery from across the street, identified the masked gunman as Carlos Kemper and stated that he had been seen earlier with Boone and Stone. Mr. Nicholes testified that Norris told him that it was Carlos who had robbed him and that Boone had "set that up." Nicholes, not knowing what to believe, retreated with Boone and Stone to the hallway of a building to discuss the accusations away from the crowd. In private, Boone denied being involved in the robbery and told Nicholes, "If you pay me, I'll go kill [Carlos] for you . . . ." Apparently, Boone was upset about being accused of assisting in the robbery and "wanted to prove that he [had] nothing to do with it." Upon hearing this, Stone said, "I don't like [Carlos] anyway, I'll kill him." Nicholes then agreed to pay Boone $500 to kill Carlos; Stone added that he would "do it for free." *fn2 Boone then removed a nine-millimeter pistol from his waistband, inspected its clip, and returned it to his waistband. Stone, however, did not have a gun with him and left to get one.

Approximately forty-five minutes later, Boone and Stone lured Carlos Kemper to the house at 1512 Seventh Street in order to execute their plan. Mayfield testified that Boone and Stone told Kemper that Nicholes "was going to kill him for robbing him," but that the three of them would kill Nicholes instead before Nicholes had a chance to act. The three men - all armed - then left the house and went out into the alley behind the building. According to Mayfield, once the three were together in the alley, Boone took Kemper's gun and shot him in the stomach. When Kemper turned and started to run, Stone shot him in the back. Kemper fell to the ground. Boone later told Mayfield that Stone then "stood on top of [Kemper] and started shooting him." *fn3 Ms. Wright testified that she heard gunshots at about this time and that she and Nicholes then drove away in a car. *fn4

Over the next few days, Boone and Stone revealed various details of the shooting to three different people: Mayfield, Nicholes, and Durrell Wheeler. Some time thereafter, Nicholes paid Boone $300 of the $500 he had promised him for the murder.

According to Mayfield, the weapon used by Stone to shoot Kemper was a Glock nine-millimeter pistol which he had obtained from Mayfield in an exchange a couple of weeks earlier. Within a week or two after the murder, Stone returned the gun to Mayfield, who in turn sold it to Nicholes for a half-ounce of crack cocaine. *fn5 Later, however, Mayfield went back to Nicholes with Anthony Irving, who demanded and received the weapon from Nicholes. According to Mayfield, Irving "told [Nicholes] that that was his gun" and that he wanted it back.

B. The Defense Evidence

Maurice Wilkes testified that he had been gambling with Stone, Boone, and others at 1514 Seventh Street when they learned that Nicholes had been robbed. According to Wilkes, after learning the news, he and his companions simply resumed their gambling with no discussion of Carlos Kemper or of any "set-up." Adrian Green testified that he told Boone the next day that Kemper had been murdered. According to Green, Boone "was very upset and started crying" when he heard the news. Lorren Leadmon, a detective with the Metropolitan Police, testified that Nicholes told him that on December 20, shortly before the shooting, Boone "didn't have a gun, he had to go get one." Anthony Irving denied having had a conversation with Nicholes after the shooting and denied obtaining a gun from him. Finally, Danette Wade testified that she was in Stone's presence before and during the early morning hours of December 20. When she heard gunshots, Stone, who had been walking with her, suddenly ran down the street. She said she did not hear any conversations among Stone, Boone, and Nicholes about any plan to kill Kemper.

Neither Stone nor Boone testified.

II.

A. "Other Crimes" Evidence

Appellants argue that the trial court erred in admitting testimony that they both had been involved in Nicholes' drug distributing enterprise before the night of the shooting and that both had acted as enforcers for this operation. Prior to trial, the government gave notice of its intention to present evidence that both Boone and Stone regularly sold crack cocaine, armed themselves with firearms, and served as enforcers for Nicholes' drug business, and that Stone had borrowed a Glock semi-automatic pistol approximately two weeks before the murder and also had it in his possession after the murder. In support of its position ...


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