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Samad v. United States

December 12, 2002

MATEEN ABDUS SAMAD, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (Cr. No. F2573-97) (Hon. Harold L. Cushenberry, Jr., Trial Judge)

Before Steadman, Ruiz and Glickman, Associate Judges.

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

Argued December 12, 2000

Mateen Abdus Samad appeals his convictions after a jury trial of voluntary manslaughter while armed and possession of a firearm during a crime of violence. Samad contends that the trial court plainly erred in failing to investigate reports that a juror had slept through critical parts of the government's case-in-chief. Samad also complains of two evidentiary rulings at trial, one limiting his co-defendant's cross-examination of the main prosecution witness about his activities as a drug dealer, and the other precluding Samad from introducing a redacted portion of his videotaped statement to the police under the rule of completeness. We conclude that Samad's assignments of error do not entitle him to relief, and we affirm his convictions.

I.

The indictment on which he was tried charged Samad and his co-defendant Darold Watson with first degree murder while armed for the shooting death of William Peterbark, assault with intent to kill while armed for the shooting and wounding of Vernon Ham, and associated weapons offenses. The shootings were a result of neighborhood violence that Ham himself had initiated, and Ham was the government's most important witness at trial.

According to Ham, the precipitating incident was a fight he had with his girlfriend. Ham hit her. She retaliated by hitting him with her car and driving away. Ham could not catch her, so he tracked down her brother and beat him up instead "to give his sister the message." Some of the brother's friends came to his aid as others, including Samad and Watson, looked on. Ham left the battle to retrieve his gun and ran into his friend Peterbark, who drove him back to the scene of the fighting. Ham announced his return by firing his weapon into the crowd. After a shootout in which, remarkably, no one was hit, Ham and Peterbark drove away.

Two days later, Ham and Peterbark were driving again through the neighborhood in which the melee had occurred. They stopped so that Ham could get out of the car to speak with an acquaintance on the street. Peterbark remained in the vehicle. At this moment, Ham testified, he saw Samad and Watson approaching him on foot with guns in their hands. Samad walked up to the car and fired several shots directly at Peterbark. Watson shot at Ham, who fled. Peterbark was severely injured and died within minutes. Ham was wounded in his arm and managed to escape.

Testifying as the only witness in his defense, Samad described the confrontation differently. Samad said that he happened to be walking to the store with Watson when they came upon Ham unexpectedly. Seeing Ham reach for something in his belt, Samad feared that Ham was about to pull out a gun and begin firing the way he had two days earlier. Samad backed up and began to run away. As he did so, he pulled out a handgun of his own and fired several shots in self-defense in Ham's general direction. Samad denied shooting at Peterbark. *fn1

The jury acquitted Samad of assaulting Ham and murdering Peterbark, but convicted him of the lesser included offense of voluntary manslaughter while armed and the associated firearm possession offense. *fn2

II.

Samad argues that the trial court abused its discretion and violated his Fifth and Sixth Amendment rights, as well as Superior Court Criminal Rule 24 (c), *fn3 by failing to investigate or take other action after being informed that juror eleven had been asleep during key parts of the trial.

When the jury was excused for lunch on the second day of trial with Ham still on the witness stand, one of the two Assistant United States Attorneys presenting the case reported to the court that juror eleven appeared to have been sleeping during "pretty essential testimony to the case." *fn4 The judge said that he would keep a close watch on the juror. Neither government nor defense counsel requested the judge to do anything else.

No more was said about the matter until the end of the day, when the second Assistant United States Attorney reported that juror eleven had been asleep that afternoon during the testimony of both the detective who described Ham's out-of-court identifications of the shooters and the medical examiner who described the autopsy of Peterbark. *fn5 The judge responded that he had watched juror eleven and "thought he did better this afternoon than he has on other occasions." The judge said that although he "did see [juror eleven] close his eyes," he needed to have "more direct evidence" to conclude that the juror had been sleeping. Adding that he was more ...


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