Appeals from the Superior Court of the District of Columbia (F-5403-94) (F-5225-94) (Hon. Judith Retchin, Trial Judge)
Before Farrell, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Isaac Burgess and James Waddell were indicted for first degree premeditated murder while armed, see D.C. Code §§ 22-2401, -3202 (1996 Repl.), assault with intent to kill (AWIK) while armed, see D.C. Code §§ 22-501, -3202 (1996 Repl.), possession of a firearm during a crime of violence (PFCV), see D.C. Code § 22-3204 (b) (1996 Repl.), and carrying a pistol without a license (CPWL), see D.C. Code § 22-3204 (a) (1996 Repl.). Albert Quiovers was also named a defendant; he entered a plea to a lesser-included conspiracy charge and testified for the government at appellants' trial. A jury acquitted both appellants of first degree murder and AWIK, but convicted them of the lesser included offenses of second degree murder while armed, assault with a dangerous weapon (ADW), and the weapons offenses. Appellants were sentenced to fifteen years to life for second degree murder while armed, forty to hundred-twenty months for ADW, five to fifteen years for PFCV, and one year for CPWL, to run consecutively.
On appeal, Burgess claims that the court plainly erred when it permitted evidence of an uncharged crime, i.e, that he and a group of friends had initially agreed to mislead the police about their involvement in the murder, and when it failed to intervene sua sponte in the prosecutor's closing argument. He also claims the trial court abused its discretion in admitting a hearsay statement made by Quiovers presented during the testimony of Eric Cloyd, another government witness. Waddell appeals the trial court's denial of his collateral challenge that he was denied the effective assistance of counsel, which is based on Burgess' claims on direct appeal. We see no merit to Burgess's claims (and, thus, to Waddell's collateral challenge).
Waddell's claims on direct appeal are more substantial. He argues that the trial court abused its discretion by excluding a photograph of Eric Cloyd posing with the murder weapon that was central to his defense and that the jury selection process used by the trial court impaired his right to the use of peremptory challenges. Although Waddell's argument that the voir dire and selection process in this case could have infringed on the full exercise of peremptory rights potentially raises a serious concern, the record shows that his right to peremptory challenges was not, in fact, impaired. We agree with Waddell's claim that the trial court erred in excluding the photograph, but conclude that the error was harmless. Therefore, we affirm.
Isaac Burgess, James Waddell, Albert Quiovers, Aaron Byers, and Eric Cloyd were friends who had known each other for many years. The five of them frequently socialized with one another. On the night of July 8, 1993, at 11:30 p.m., the five young men were together when two of them murdered Fred Pass and shot Donald Reeves twice in the leg. The government's case rested primarily on the testimony of Quiovers, Byers and Cloyd, who testified that several hours after Quiovers got into a heated argument with Pass, Burgess and Waddell shot and killed Pass and wounded Reeves. The defense theory was that the shooters were not Waddell and Burgess, but Cloyd and Byers.
The afternoon before the murder, Quiovers and Aja Pass, Fred Pass' daughter, were talking outside of the Pass home on Morris Road, in Southeast Washington, D.C., when Mr. Pass joined them. Ms. Pass testified that her father and Quiovers began to argue because Mr. Pass did not want her to spend time with Quiovers, but also admitted the two men argued over money that apparently Quiovers owed to her father. Quiovers later testified that he owed Mr. Pass $20.00 because he had sold fake crack cocaine to Mr. Pass. The argument went on for about five minutes, during which each man threatened the other.
Twenty minutes after this argument, appellant Waddell arrived at Quiovers's house with Byers and Cloyd. Quiovers told his friends about his argument with Mr. Pass over the debt and that Mr. Pass had threatened him. According to Cloyd and Byers, Quiovers seemed agitated and scared of Mr. Pass. The group tried to pacify Quiovers and they discussed what he planned to do about the threats, to which he responded that he would talk to Mr. Pass to see if he was serious.
The four friends went to Fort Stanton Park where they met up with appellant Burgess and watched a basketball tournament. The five then left together in a four-door Chevrolet Impala which belonged to Burgess' girlfriend. They drove to Gainesville Street to buy marijuana, went to a liquor store to buy beer and fortified wine, and then stopped at a fast food restaurant. They proceeded to Hains Point where they smoked marijuana, drank beers, and talked to some girls for a few hours. While there, Quiovers started to talk again about his encounter with Fred Pass, according to Cloyd, "complaining, whining, whatever," and in response, the group "basically didn't say anything," or "[told] him anything, basically, just to shut him up."
Cloyd drove the group back in the Impala to the Morris Road area. Waddell rode in the front passenger seat, Burgess sat behind Waddell in the back on the right, Byers sat in the back on the left behind the driver's seat, and Quiovers sat in the middle of the back seat. As they drove along Morris Road, Quiovers pointed out Mr. Pass. Burgess then asked, "Y'all trying to get him?" No one responded.
Cloyd stopped at the apartment building where he and Waddell lived. They got out of the car to get weapons and returned to the same seats in the car; Cloyd had with him a .22 automatic handgun, and Waddell had a .32 or .38 caliber revolver. Cloyd admitted that he owned the .22 automatic "for protection" and had allowed others to handle his gun. According to Cloyd and Quiovers, Waddell had owned the revolver for a few months prior to the night of the murder.
Once back in the car, Cloyd drove the group to the parking lot of Our Lady of Perpetual Help church. The witnesses's testimony differed on precisely what was solid during the conversation, but Byers testified that Quiovers and Burgess were arguing about who was going to shoot Mr. Pass. Cloyd eventually left the parking lot and drove toward an alley adjacent to Morris Road where the Passes lived. Quiovers, Cloyd and Byers testified that Burgess left the car with Cloyd's .22 pistol and Waddell left carrying his own revolver, and that none of the others left the car. Cloyd drove the car down an alley and waited for Burgess and Waddell to return. Several minutes later, the men in the car heard gunfire.
Gary Johnson, a neighbor, testified that he saw the car in the alley from his front porch, saw a man exit the front passenger side of the car and another exit the rear passenger side while the other three remained in the car. Reeves testified that he had noticed two black males turning the corner onto Morris Road, but "really wasn't paying them that much attention." They greeted him with "Hey, dude," and "then one of them said, `Are you ready?' and they just turned around and started firing." He estimated they fired about a dozen shots. Reeves dove out of the way of the gunfire but was shot twice in his left leg. The Deputy Chief Medical Examiner testified that the autopsy report on Mr. Pass revealed that he had suffered seven bullet wounds which caused his death.
After Cloyd, Byers and Quiovers heard the gunshots, Burgess and Waddell ran to the car and got in as Cloyd rapidly drove away. They went to Gainesville Street where everyone exited the car. The witnesses differed as to what happened next. Quiovers told the jury that Burgess wrapped the guns in a jacket and looked for someone to hold them. Byers testified that Burgess and Waddell both went to hide the guns behind a building while he, Quiovers and Cloyd stood on the corner. Cloyd said that the entire group first gave the guns to someone named "Scoop" in Gaithersburg, Maryland. After Byers became nervous about leaving the guns there, Cloyd, Waddell and Byers retrieved the guns from Scoop, and Byers took the weapons to someone named Jerome Silver who agreed to hold them. The weapons were never recovered.
Burgess drove his girlfriend's car home, leaving the others, who walked to Cloyd's apartment. Quiovers went home shortly thereafter when he learned the police were at his house.
The next day, Quiovers met Cloyd and Waddell at the Public Service Commission, where Cloyd and Waddell worked. Cloyd testified that Waddell was "sad and down" and said "what we did was wrong" and that he "should have turned [himself] in." Cloyd described what Waddell told him:
he walked down Morris Road. He got around Fred [Pass] and he said [there] was another dude outside with him. He said he kind of hesitated when they walked past him and Fred looked like what's up, like, addressed it, like hey, and he said he did it back. . . . took a few more steps like he had hesitated and walked past him. And then turned around and started shooting.
Quiovers told Cloyd and Waddell that he had been questioned by the police about the shooting and had told the police everything about that evening except the events that transpired after the time the five men returned from Hains Point. He led the police to believe that they all went home after leaving Hains Point. The group decided that if any of the others were questioned, they would all tell a story consistent with Quiovers's statement to the police.
The five continued to socialize throughout that summer. During the course of the summer, Cloyd heard Burgess acknowledge that he shot Fred Pass. Byers overheard Burgess "saying they let one get away," to which appellant Waddell replied, "My fault."
Waddell testified in his own defense that after the group left Hains Point, he asked Cloyd to drop him off at his friend Philip Glover's house. After a time, he walked home and did not learn of the shooting until the next day when he spoke with Quiovers and Cloyd at work. Waddell also denied possessing a gun on the night of the murder or owning a gun.
Two eyewitnesses testified describing the appearance of the shooters. Donald Reeves testified that one of his assailants was a black male, 18-20 years old, heavy-set, with a dark complexion, close-cropped hair, and thick lips. He testified that the second man had a slim build and had a lighter complexion. Johnson, the neighbor, testified that he saw two men emerge from the car, one skinny and the other darker and heavy-set. At trial, defense counsel pointed out that Waddell was heavier, but had a lighter complexion than, Burgess. Byers was heavy and had a dark complexion. Cloyd was thinner than Byers and had the lightest complexion ...