Appeals from the Superior Court of the District of Columbia Criminal Division (F-7628-96) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before Steadman, Schwelb and Ruiz, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Following a jury trial, appellant was found guilty of first-degree murder while armed (premeditated) *fn1 and related weapons offenses. On appeal, he contends that the jury was misled when, in response to a jury note, the trial court reinstructed the jury on the element of premeditation, but without mentioning the element of deliberation. Appellant also asserts that the trial court abused its discretion when, after a post-trial hearing, the trial judge found that a juror was not biased against a defense witness and dispensed with appellant's request to voir dire other jurors. We disagree with the contention that the trial court plainly erred when it instructe d the jury solely on the element of prem editation. We agree, however, that given the limited record before it, the trial court co uld not meaningfully exercise discretion committed to it in considering the motion for a new trial without further inquiry into the claim of juror bias. Accordingly, we vacate the order denying the motion for a new trial and remand the case for further proceedings on that issue.
In the early morning hours of August 30, 1996, Gregory Miller was shot multiple times outside Dino's Metro Club in Northeast, Washington, D.C. He subsequently died from those gunshot wounds.
At trial, the govern ment's evidence showed that Miller, accompanied by three friends, arrived at Dino's Metro Club at approximately 11:00 p.m., on August 29, 1996. A security guard testified that patrons of the club were unarmed as they had to clear a security check at the entrance. Antoine Wright, a friend of Miller who was with him that night, testified that at approximately 2:00 a.m., about 30 minutes before he was fatally shot, Miller exchanged words with appellant, whom he believed was repeatedly "elbowing him." *fn2 As a result, security personnel asked appellant to leave the club. Some time later, outside the club, Miller saw the appellant and asked him why he had "elbowed" him. Appellant responded that he was not "beefing" with Miller, pulled his car keys out of his pocket, and, as Miller continued to ask for an explanation, walked backwards in the direction where his car was parked. Miller followed appellant. According to eyewitnesses, when appellant reached the passenger side of his car, he unlocked the door and removed a gun from the glove compartment. He then stooped over, as if he was putting a clip in the gun, and made a slapping motion, as if to ensure the clip was secure. Miller turned and began to run down Bladensburg Road when he saw appellant raise his gun. Appellant got out of the car and began to chase Miller and fired two to three shots at him. Miller continued to run from appellant, ducking behind cars as appellant continued the chase, shooting at him. At one point, Miller jumped out from behind a parked car and ran onto Bladensburg Road, where he collapsed face-up on the street. Appellant ran to Miller, stood directly over his prone body, and with his gun a distance of less than two feet from M iller's body, fired nine to ten bullets into Miller's face and chest, emptying his gun. A police officer *fn3 on duty outside the club also witnessed appellant point his gun in Miller's direction and fire approximately ten or eleven shots. When his gun stopped firing, appellant turned and ran, with the gun still in his hand. Police officers pursued appellant and apprehended him.
Appellant testified that he was acting in self-defense. He claimed that shortly after he arrived at the club, the band announced that "CT is in the house," meaning that someone from the Condon Terrace crew was in the club. As appellant was listening to the band, Miller, who was standing in front of him, stepped backwards. Appellant put his hand out to stop Miller, but Miller turned and slapped appellant's hand away. When appellant apologized, Miller replied, "I'm going to start killing th ese mother fuckers, you know." Appellant was "scared to death" because he knew that Miller was a member of the Condon Terrace crew, which had a reputation for violence.
Once outside the club, appellant testified, he heard Miller behind him saying, "there go that mother fucker right there," "I'm going to bust his ass." Appellant turned to Miller and said, "look man, I said my fault," and walked toward his car. As appellant neared his car, he saw Miller run across the street toward another car. Thinking that Miller was going to get a gun, appellant decided to leave, but realized that his car was blocked. *fn4 Remembering that he had a loaded 9 mm gun in his glove compartment, he removed the gun, got out of the car and began to run down Bladensburg Road. When he saw M iller run into the street, pull a gun from the waistband of his pants, and point the gun at him, appellant believed that Miller was going to kill him, and fired at Miller. After the first shot, appellant "totally, like, blanked out for a while." He did not recall shooting Miller in the back or shooting him numerous times in the front when he was lying on the ground. When his gun stopped firing, appellant ran down Bladensburg Road, unaware the police were chasing him. He believed that the shots being fired at him were coming from members of the Condon Terrace crew, and only realized that it was the police who were chasing him when a police car cut off his flight.
On cross-examination, appellant admitted that he never communicated his fear of the Condon Terrace crew to the bouncer at the club or any of the police officers who were positioned directly outside the club on their regular "beat," but said it was because members of the Condon Terrace crew were near the officers. Calvin Antoine Wright corroborated that appellant was afraid; he testified that he witnessed the altercation outside the club between Miller and appellant, and that appellant had a "scared" look on his face. Appellant conceded that his account did not explain the location of shell casings that the police found a distance away - about 106 feet- from where Miller was killed, in the route of the chase, or the bullet wounds in Miller's back.
A defense witness, Marlo Chaney, who had been at Dino's Metro Club the night of the shooting, testified that after the shooting she saw a man run up to Miller's body and take something. She could not identify exactly what was taken, nor could she give a description of the man; she admitted that she never informed the police or the prosecutor that she had seen someone near Miller's body.
During closing arguments, the prosecutor argued that there was no evidence that supported appellant's claim of self-defense. Emphasizing that appellant had brought a gun with fourteen rounds of ammunition to a club which appellant frequented regularly and knew would not permit him to enter with weapons, the prosecutor asked the jury to infer that appellant had ill-intent before he arrived at the club. As appellant failed to ask for assistance from any of the police officers or security personnel, and multiple witnesses saw appellant chase Miller and shoot him in the back, and then approach him and shoot him repeatedly as he lay on the ground, the prosecutor contended that appellant had "an appreciable time to reconsider, an appreciable time to reconsider and he took action" - sufficient to form the intent required for first-degree premeditated murder. He stressed it was "106 feet from the first shell casings" to Miller's body. This physical evidence corroborated eyewitness testimony that appellant first fired two shots at Miller and then ran another 106 feet to shoot him again. That distance, the location of shell casings and bullet wounds showed that it was appellant who pursued Miller, and not vice-versa. The prosecutor argued that a reasonable person in this situation w ould not have felt at risk of immediate life-threatening harm and used deadly force.
The defense stressed in closing that appellant's self-defense claim was consistent with evidence that demonstrated that Miller was the aggressor, and that appellant's actions were reasonable because he believed that Miller had a gun and was going to shoot him. He pointed to the testimony of Chaney, who saw someone pick up an object (presumably, a gun) from Miller's body after the shooting. Defense counsel noted that Wright, a government witness, testified that appellant had a "scared" look on his face and "backed" away from Miller towards his car outside the club. Defense counsel also argued that the location of the bullet casings was not to be relied upon because they had been strewn all throughout the road as numerous people exited the club and scattered all over after the shooting. He concluded that because appellant ...