Appeals from the Superior Court of the District of Columbia (F-7686-96) (Hon. Reggie B. Walton, Trial Judge)
Before Terry, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
After a ten-day trial, appellant was convicted of voluntary manslaughter while armed and possession of a prohibited weapon (PPW). *fn1 The court sentenced him to concurrent prison terms of fifteen years to life on the manslaughter conviction and one year on the PPW conviction. After he was sentenced and noted an appeal, appellant filed a motion to reduce his sentence under Super. Ct. Crim. R. 35 and a motion seeking recusal of the trial judge from consideration of the Rule 35 motion. Both of those motions were denied, and appellant noted a second appeal, which we consolidated with the first.
Before this court appellant asserts that there was insufficient evidence to convict him of voluntary manslaughter and that the verdict of one juror was the product of intimidation. In addition, he argues that the trial court abused its discretion by denying his motion for reduction of sentence and his motion for recusal. We hold that the evidence was sufficient and that the intimidation claim is without substance, but that the motion for recusal should have been granted. We therefore affirm the conviction on the merits, but remand the case for resentencing.
A. The Government's Evidence
On September 1, 1996, a fight erupted inside the Ibex night club on Georgia Avenue, Northwest. Present at the club, among others, were Tauhid Byrd, Darone Derricott, Austin Etheridge, and appellant. After being in the club for approximately a half-hour, Darone Derricott got into an altercation with another man, and a fight ensued. The club's security guards, some of whom were off-duty police officers, intervened and escorted two groups of people, who appeared to be involved in the fight, out of the club through its front and rear exits. Byrd and Derricott were in the group that left by way of the rear exit, which led to a fire escape. At the bottom of the fire escape, Byrd and Derricott encountered some of the same people they had seen earlier inside the club, and another fight broke out.
At about the same time, Officer Warren Mayo of the Metropolitan Police was driving along Georgia Avenue in a police cruiser. He was stopped at an intersection, waiting for a traffic light to change, when he heard the sound of loud voices coming from behind the Ibex night club. Officer Mayo pulled his car onto Colorado Avenue, the street in back of the club, and parked near the entrance to the club's parking lot. He then noticed a group of about five men talking loudly at the top of the fire escape and got out of his car to investigate.
Officer Mayo walked underneath the fire escape and shined his flashlight toward the top of the stairs. When the men on the stairs did not respond, the officer went back to his car to wait and "monitor the situation." A few minutes later the men came down from the fire escape into the parking lot, where Officer Mayo heard one of them say, "There's one of those [men] *fn2 right there." The group then ran behind the police car and "began to attack what [Mayo] perceived as a lone male" who was lying on the ground. Officer Mayo picked up his baton and got out of the car, and as he did so, he saw appellant wildly swinging a knife at the group attacking the man on the ground. *fn3 When they saw him wielding a knife, the other men began to run south on Colorado Avenue along the sidewalk. Appellant ran after them, "continuing to swing wildly, making striking motions toward the individuals," and Officer Mayo followed with his gun drawn. After a short distance, the men attempted to hurdle a parked car that was blocking their path. Four of them jumped over the car to safety, but the last man, Austin Etheridge, was caught by appellant, who proceeded to "stab him one time in the upper right portion of his back." Etheridge exclaimed, "You shanked me," and arched his back to the side.
After stabbing Etheridge, appellant stood with his arms at his sides and began to look around. Officer Mayo, who by now had caught up with appellant, ordered him to drop the knife, but appellant did not drop it and instead turned his back. The officer then heard the blade of the knife close, and appellant started to run away. Officer Mayo gave chase and again ordered him to drop the knife. At first he did not comply, but eventually he threw the knife between two parked cars as he continued to run. The officer reholstered his gun and grabbed appellant by his shirt collar, and appellant tripped and fell. Officer Mayo tackled him and radioed for assistance, noticing for the first time that appellant had a cut on his left arm. While the officer waited, some of the men that had been chased, including Etheridge - who by this time was showing signs of "distress" - approached appellant and began yelling at him. Because it was a "busy night," it took a few minutes for other officers and an ambulance to arrive, but once they got there, Mayo was able to retrieve the knife from the place where appellant had thrown it. *fn4
Other witnesses provided further details of what happened both inside and outside the Ibex night club. Tauhid Byrd testified that he had gone to the Ibex that night with Darone Derricott, Bernard Derricott, and John Doswell after drinking and smoking marijuana. After they had been there for about a half-hour, Darone Derricott got into an argument with another man. Club security officers escorted the group out through the back door onto the fire escape. While the others argued with the security officers at the top of the fire escape, Byrd walked down to the bottom. There he saw "a group of guys" whom he had seen in the club earlier and said, "There they go." Another fight erupted between the two groups, during which appellant stabbed Byrd in the stomach. Bernard Derricott then drove Byrd to the Washington Hospital Center, where he remained for eight days.
Darone Derricott testified that while he and his friends were inside the Ibex night club, someone threw a drink in his face and punched him in the stomach. Derricott then left through the back door with four or five of his friends. Then, as he was walking down the fire escape, a fight broke out at the bottom of the stairs between Tauhid Byrd and another man. Derricott joined the brawl and started fighting with appellant because Byrd said that appellant had just stabbed him. After appellant also stabbed Derricott in the right arm, Derricott fled with Etheridge down Colorado Avenue, hurdling a parked car to avoid being stabbed again. Derricott stated that appellant grabbed Etheridge as he was trying to climb over the car and stabbed him in the back. *fn5 After the police arrived on the scene, Derricott identified appellant to them as the man with the knife who had chased him and Etheridge down Colorado Avenue, and he also identified appellant in court.
The medical examiner testified that Austin Etheridge suffered a single stab wound to his right lung, and that he later died ...