Appeal from the Superior Court of the District of Columbia (F-748-97) (Hon. Frederick H. Weisberg, Trial Judge)
Before Schwelb, Ruiz and Washington, Associate Judges.
The opinion of the court was delivered by: Associate Judge Ruiz
Concurring opinion by Associate Judge SCHWELB, at page 18.
Michael Plummer appeals from his conviction of first-degree, premeditated murder while armed, *fn1 and related weapons offenses *fn2 arguing that a "pervasive, prejudicial atmosphere infected his trial." Specifically, he claims that the trial court erred in allowing the jury to speculate, without a firm evidentiary basis, that this and another shooting were gang-related and that appellant had confessed to the crime to a person who did not testify at trial. Appellant also claims that the judge improperly allowed irrelevant and inflammatory testimony and argument urging conviction on the basis of community sentiment and sympathy for the murder victim's relatives and friends. We hold that any error in this case was harmless, and affirm.
The government's evidence
On July 2, 1996, at approximately 11:00 p.m., in the unit block of O Street, N.W., Washington, D.C., sixteen-year-old Dennis Hines was shot twice, at close range, in the head and back. He subsequently died from those gunshot wounds.
After Dennis Hines's death, rumors began circulating that appellant, also a sixteen-year-old young man from a nearby neighborhood, had been the shooter. In January of 1997, six months after the shooting, the police arrested appellant. He was indicted on first-degree murder and related weapons offenses in August of that year after three eyewitnesses testified before the grand jury and identified appellant as the shooter. When appellant was first brought to trial, in February of 1998, the government presented the testimony of three eyewitnesses; the testimony of Calvin Gaither, the best friend of the murder victim and a government informant, who claimed that appellant had confessed to killing Dennis Hines; and the testimony of William "Jeff" Mitchell, a neighborhood resident whose daughter, Tia, had been killed shortly after Dennis Hines, and who had testified at the grand jury, but subsequently recanted at trial, that appellant had apologized for setting off the cycle of violence that resulted in the death of his friend Tia. The government also presented the medical examiner, who testified that two shots had been fired causing four wounds to Dennis Hines's head, ear, shoulder and ribs. Although police recovered a bullet, there was no physical evidence linking appellant to the shooting. After deliberating for three days, the jury deadlocked on all counts.
In June of 1998, appellant was tried before a second jury and a different judge. This trial featured the same three eyewitnesses, informant and medical testimony presented in the first trial, but did not include Jeff Mitchell. The evidence demonstrated that before he was shot, Dennis Hines had been sitting in front of 18-A O Street, N.W., between 1st Street and North Capitol Street, speaking with Natalie Burks, Nichole Burks, and Larry Morgan. *fn3 Natalie testified that she noticed a young man emerge from an alley near North Capitol Street, and recognized him as someone she had seen in the neighborhood. Natalie saw the young man approach Dennis Hines, pull a gun from his waistband, and point it at Dennis Hines's head. He pulled the trigger, but the gun did not fire. Then, he pulled it again and shot Dennis Hines four times. Natalie grabbed her daughter, Nichole, who had been sitting nearby, and ran with her toward North Capitol Street. As they ran, Natalie looked back and saw the gunman fire another shot at Dennis Hines as he was trying to get up off the ground. In court, Natalie identified appellant as the shooter and testified that she saw appellant fire five or six shots at Hines from a distance of a couple of inches.
Larry Morgan testified *fn4 that he had been drinking alcohol that night with Dennis Hines, but was not drunk, and had left the group and begun to walk up O Street, N.W., toward 1st Street. As he was about three or four houses away, he heard five or six gunshots from behind him, turned around, and saw appellant, whom he knew from the neighborhood, shooting at Dennis Hines.
Following the shooting, neither Natalie Burks, her daughter, Nichole, nor Larry Morgan informed the police of what they had witnessed. One year later, in July, 1997, they were subpoenaed to appear before the grand jury, at which time Detective Timothy Doughty met individually with each one. Natalie and Nichole Burks identified appellant from an array of photographs of young men. Larry Morgan told Detective Doughty that he knew the shooter as "Michael Plummer,"and also identified appellant from an array of photographs.
Testimony of Calvin Gaither
Calvin Gaither, a convicted felon and local drug dealer who had been a good friend of Dennis Hines, testified that the previous summer appellant had confessed to him in the D.C. Jail to shooting Dennis Hines, by apologizing for "what he had done" and by saying that he "had acted too fast." Gaither further testified that appellant asked if they could "squash the beef," apparently referring to a feud between the Sursum Corda neighborhood and the 1st and O Street neighborhood. *fn5 According to Gaither, by "squash[ing] the beef," appellant meant that "he didn't want no more violence going on." When the prosecutor then asked if there had been other violence between the two groups, defense counsel objected. At the bench, a colloquy took place in which the prosecutor said he wanted to refer to the retaliatory killing of appellant's friend, Tia Mitchell, which had followed shortly after the shooting of Dennis Hines. When defense counsel argued that the Tia Mitchell killing and "the beef" were not relevant to any issues at trial, the prosecutor agreed that he would withdraw the question concerning Tia Mitchell. As the prosecutor asked Gaither a follow-up question about how he responded to appellant's request that he "squash the beef," Gaither referred to the gang violence by stating that he told appellant, "we lost one; they lost one. Yeah, let's squash it." The prosecutor then approached the bench and asked the judge if he could ask the witness what he meant by "we lost one; you lost one." Over defense objection, the trial judge permitted the additional question reasoning that "since they don't know what it's in reference to, it could be misunderstood as a reference to a killing by Dennis Hines for which Mr. Plummer is retaliating and that would not be reasonable." The following questioning by the prosecutor and testimony by Gaither ensued:
Q: Mr. Gaither, when you told Mr. Plummer "Yeah, we lost one; you lost one, let's just squash the ...