Appeals from the Superior Court of the District of Columbia (F-2349-96) (Hon. Mary Ellen Abrecht, Pre-Trial Motions Judge) (Hon. A. Franklin Burgess, Jr., Trial Judge)
Before Terry, Schwelb, and Reid, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Argued September 20, 2001
Appellant was convicted of first-degree premeditated murder while armed, first-degree felony murder while armed, armed robbery, possession of a firearm during a crime of violence, and carrying a pistol without a license. On appeal from the judgment of conviction, he contends that he was prejudiced when the trial court improperly admitted evidence of other crimes and when a government witness revealed during cross-examination that he had taken a polygraph test. Appellant also filed a post-trial motion to vacate his sentence under D.C. Code § 23-110 (2001), contending, among other things, that his trial counsel was ineffective because he failed to notify the court of a sleeping juror. The § 23-110 motion was denied after a hearing on the sleeping juror issue, and appellant noted a second appeal, which we consolidated with the direct appeal from his convictions. We now affirm the judgment of conviction on the merits, and also affirm the denial of the § 23-110 motion. We remand the case, however to enable the trial court to vacate certain merging convictions and resentence accordingly. *fn1
Appellant Welch was charged with murdering Michael Tyson and stealing Tyson's Nissan Pathfinder truck during the early morning hours of February 27, 1996. The government presented its case mainly through two key witnesses and DNA evidence. *fn2
Donna Belton, the first witness, was a cousin of the decedent. She testified that on the day he was killed, Mr. Tyson visited her at her home in the early morning, and the two of them smoked crack cocaine. Afterwards Ms. Belton went to a nearby gas station to buy some cigarettes, and while she was there, she met appellant, whom she knew to be a drug dealer. When he complained that "business was slow" in his area, Ms. Belton invited him back to her home in order to sell his drugs there. Because appellant did not have any drugs with him, Ms. Belton also offered to ask her cousin to give him a ride to pick them up. During a conversation on the way back from the gas station, Ms. Belton and appellant agreed that Ms. Belton would have sex with him in exchange for $8.00.
After Ms. Belton and appellant had sex, Mr. Tyson agreed to give appellant a ride in return for some of his drugs. Tyson left with appellant, and Ms. Belton never saw him alive again. Appellant, however, returned about an hour and a half later along with another man named Antwone Andrews. Appellant told Ms. Belton that Tyson had dropped them off at a Safeway store and that they had walked back to her home from there. Andrews was carrying a T-shirt that appeared to have blood on it. When Ms. Belton asked about it, appellant said that the T-shirt belonged to him and that it was "dirty" because he had blown his nose on it. Appellant then gave Ms. Belton some drugs, and he and Andrews left together. Andrews later returned by himself and had sex with Ms. Belton in exchange for drugs.
Antwone Andrews, the other principal government witness, had pleaded guilty to being an accessory after the fact of murder and testified at appellant's trial pursuant to his plea agreement. He said that appellant and Tyson had picked him up in a Pathfinder truck so that he could sell drugs in order to raise money to buy a gift for his daughter's birthday. Tyson drove them all to the corner of First Street and Rhode Island Avenue, Northwest. There appellant got out of the truck, supposedly to retrieve his drugs from a hidden location behind a sign. Instead of getting drugs, however, appellant returned to the truck with a gun, said, "Man give that [expletive] up," and shot Tyson three times in the head. Appellant and Andrews then placed the body in the back seat, drove to a nearby Safeway parking lot, and buried the body in a snowbank, where it was discovered several days later. Andrews and appellant returned to Ms. Belton's home for a short time, then went to the home of appellant's girl friend. There they all "got high" on "some weed," and Andrews fell asleep in a chair and spent the night. The next day Andrews and appellant went to the home of appellant's father. They stayed there for a while, and then appellant gave Andrews the keys to Tyson's truck. Andrews took the truck and drove to the home of his girl friend. *fn3
The government also presented evidence that appellant, after learning that Andrews had implicated him in the crime, directed Andrews to write a letter to the government exculpating him; that appellant had telephoned a friend from prison and said that Andrews had "snitched on him"; that two of the bullets fired into Tyson's head had come from the same gun; *fn4 that bloodstained jeans were recovered from appellant's home; and that DNA testing showed that the blood on the jeans and blood found in the Pathfinder truck matched that of Mr. Tyson.
The defense sought to implicate Mr. Andrews as the actual murderer. Appellant's father and stepmother testified that Andrews had come to their house approximately two weeks before appellant's arrest and dropped off a plastic bag which may have contained clothing. *fn5 The defense theory was that the bag contained the jeans that were stained with Tyson's blood. Two other defense witnesses denied having seen appellant and Andrews in a Pathfinder truck at First Street and Rhode Island Avenue, contrary to the testimony of Andrews placing those witnesses there. Appellant did not testify.
Appellant argues that the trial court erred in two respects -first, by improperly admitting evidence of other crimes, and second, by allowing the jury to hear testimony that a government witness took a lie detector test - and that the cumulative effect of these errors warrants ...