Appeals from the Superior Court of the District of Columbia (F5769-94), (F6369-94), (F6370-94) (Hon. Susan R. Winfield, Trial Judge)
Before Wagner, Chief Judge, Farrell, Associate Judge, and Ebeker, Senior Judge.
The opinion of the court was delivered by: Wagner, Chief Judge
Appellants, Rhasaan Alston, Donnell Porter and Norvelle Nelson, were indicted on multiple counts related to the robbery of two men and the murder of one of them during the course of the robbery. Following a jury trial, each of the appellants was convicted of two counts of armed robbery (D.C. Code §§ 22-2901,*fn1 -3202*fn2 (1994));first degree murder while armed (premeditated) (D.C. Code §§ 22-2401,*fn3 -3202 (1994));first degree felony murder while armed (D.C. Code §§ 22-2401, -3202 (1994)); and assault with intent to kill while armed (AWIKWA) (D.C. Code §§ 22-501,*fn4 -3202 (1994)). Each of them was also convicted of possession of a firearm during the commission of a crime of violence (PFCV) (D.C. Code § 22-3204 (b)*fn5 (1994)) and carrying a pistol without a license (CPWL) (D.C. Code § 22-3204 (a)). The following issues are raised on appeal by one or more of the appellants: (1) the evidence was insufficient to support Alston's murder conviction; (2) the trial court erred in an evidentiary ruling involving prior descriptions and identifications of Alston; (3) the prosecutor made improper rebuttal argument and argued facts not in evidence; (4) Porter's trial counsel was ineffective; and (5) the trial court abused its discretion in denying motions by Porter and Nelson for a new trial based upon newly discovered exculpatory evidence which Alston is now willing to provide. Finding no reversible error, we affirm, but remand for the trial court to vacate the merged offenses.
The charges arose out of the armed robbery of Modibo Hylton and Mamadou Mbaye and the murder of Mbaye during the course of the robbery. The evidence showed that Mbaye, sometimes assisted by Hylton, sold marijuana. About a week or two before the offenses took place, Alston approached Hylton about arranging a drug sale. The day before the shootings, Hylton saw Alston at the Giant supermarket, and Alston asked him what was the "verdict." Hylton told Alston that he had to talk with his friend, referring to Mbaye, and gave Alston his pager number so that he could contact him later. On June 5, 1994, Alston paged Hylton about the deal, and Hylton and Mbaye went to Kennedy playground to meet Alston. Alston was there when they arrived, but he said that he had to leave to get money for the deal. Alston returned with Porter, and they conversed at a picnic table. Alston left again and returned with Nelson, who was to check the quality of the drugs. Mbaye showed Alston and Nelson the marijuana. When Alston asked Nelson what he thought of the "weed," Alston, Porter and Nelson pulled out guns. Hylton testified that Alston took a pager from him, obtained the marijuana from Mbaye and ordered both men to lie down. Nelson hit Mbaye with his weapon, and Mbaye fell. Hylton had his hands in the air when he heard a shot, looked up and saw Alston and Porter pointing guns at him. Hylton testified that Alston fired at him, and the bullet grazed his face and ear. Hylton went under a bench where he saw Mbaye, who had a gunshot wound to the head from which he later died. Hylton saw Porter point his weapon at him and fire, hitting him in the side and shoulder.
One witness, Ms. Williams, who was sitting outside her apartment complex near the Kennedy playground, testified that after hearing what she thought were firecrackers, she saw Alston, Porter and Nelson, whom she knew from the neighborhood, run past her. Another witness, Ms. Fletcher, who was also there, testified that after hearing the shot, she saw Porter, whom she knew, and a man with plats running away. Officer Darrelle Crandall, a Metropolitan Police officer, was in the area, heard the shots, and arrived at the scene in about thirty seconds. He testified that he saw three people running from the scene, "going over the hill." Officer Crandall found a gun in the area where he had seen the men. The weapon was examined for fingerprints, and Porter's right thumb print was found on the gun.
II. Sufficiency of the Evidence
Alston argues that the evidence was insufficient to show that he aided and abetted or intentionally participated in Mbaye's murder or that it was a probable consequence of the robbery. He contends that the evidence points to Nelson as the person who shot Mbaye. Further, he argues that there was insufficient evidence to show that Mbaye's murder was in furtherance of the drug sale and robbery or that he had any knowledge that the killing would occur.
In reviewing a claim of evidentiary insufficiency, we view the evidence in the light most favorable to the government, recognizing the right of the trier of fact to resolve issues of credibility and to draw justifiable inferences. Zanders v. United States, 678 A.2d 556, 563 (D.C. 1996) (citing (Duane) Dyson v. United States, 450 A.2d 432, 436 (D.C. 1982)(other citation omitted)). This court will reverse only where the government has failed to present evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt.
In re M.I.W., 667 A.2d 573, 575 (D.C. 1995). Applying that standard, we conclude that the evidence was sufficient to support Alston's convictions.*fn6
To obtain a conviction of premeditated murder, the government must prove that the defendant acted with premeditation and deliberation, which may be inferred from the circumstances surrounding the killing. Thacker v. United States, 599 A.2d 52, 56-57 (D.C. 1991) (citations omitted)). "Premeditation requires proof that the defendant gave 'thought before acting to the idea of taking a human life and [reached] a definite decision to kill.'" Id. (quoting Watson v. United States, 501 A.2d 791, 793 (D.C. 1985) (other citations omitted)). Proof of deliberation requires a showing that the defendant acted with "'consideration and reflection upon the preconceived design to kill, turning it over in the mind, giving it second thought.'" Id. To prove premeditation and deliberation, it is not necessary that the evidence show that a particular period of time elapsed between the formation of the design to kill and the actual killing. Watson, 501 A.2d at 793 (citing Frendak v. United States, 408 A.2d 364, 371 (D.C. 1979)). The time involved may be minutes or just a few seconds. Id. (citing Hemphill v. United States, 131 U.S. App. D.C. 46, 48, 402 F.2d 187, 189 (1968)). However, the time lapse is important because it can show an opportunity for deliberation. Id. (citation omitted). The evidence must be sufficient to show that the accused did not act impulsively or in the heat of passion. Id. (citing Frendak, 408 A.2d at 371).
The government argues that the evidence clearly established that Alston aided and abetted Mbaye's murder. A defendant may be convicted of the principal offense if he aids and abets its commission. Although mere presence at the scene is not enough to establish guilt under an aiding and abetting theory, the additional proof of "conduct which designedly encourages or facilitates a crime will support an inference of guilty participation in the crime as an aider and abettor." Jefferson v. United States, 463 A.2d 681, 683 (D.C. 1983) (citing Quarles v. United States, 308 A.2d 773, 774-75 (D.C. 1973)). To prove aiding and abetting, the government had to prove that: "(a) a crime was committed by someone; (b) the accused assisted or participated in its commission, and (c) his participation was with guilty knowledge." Id. (citing Byrd v. United States, 364 A.2d 1215, 1219 (D.C. 1977)). To be an aider or abettor in the commission of a charged offense, the accused "must be concerned in the commission of the specific crime with which the [principal] defendant is charged, he must be an associate in guilt of that crime, a participant in that offense as a principal or accessory." Roy v. United States, 652 A.2d 1098, 1104 (D.C. 1995) (quoting Risinger v. United States, 236 F.2d 96, 99 (5th Cir. 1956)) (emphasis deleted).
Viewed in the light most favorable to the government, the evidence was clearly sufficient to support Alston's conviction of murder on an aiding and abetting theory. The evidence showed that Alston was a central figure in the overall criminal venture. It was Alston who arranged the meeting with Hylton, ostensibly to make a marijuana purchase. He came to the meeting with his gun.*fn7 Alston introduced Nelson and Porter into the situation under circumstances suggesting that the group had a prearranged plan. After asking Nelson what he thought of the "weed," all three appellants pulled their weapons as if on cue. There was evidence that, during the robbery, Alston took the marijuana from Mbaye, the murder victim, and the pager from Hylton. There was also testimony that Alston shot at Hylton, from which the jury could infer reasonably that the plan included killing both victims and that Alston's actions facilitated one of the others killing Mbaye. Such evidence is sufficient to establish that Alston aided and abetted the commission of Mbaye's murder and the robbery upon which the felony murder count is based. See Jefferson, supra, 463 A.2d at 683 (proof of presence at the crime scene and conduct that "designedly encourages or facilitates a crime will support an inference of guilty participation in the crime as an aider and abettor").
III. Claim of Improper ...