Appeals from the Superior Court of the District of Columbia (F-7359-98). (Hon. Robert E. Morin, Trial Judge).
Before Terry and Ruiz, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Nebeker, Senior Judge
George West was convicted after trial by jury of first-degree murder while armed, assault with intent to kill while armed (AWIKWA), two counts of possession of a firearm during a crime of violence (PFCV), and carrying a pistol without a license (CPWL). D.C. Code §§ 22-2401, -3203, -501, -3204 (b), and -3204 (a) (1996). He raises numerous claims of error on appeal, including: the validity of the trial court's transferred intent instruction, sufficiency of the evidence as to the first-degree murder and the AWIKWA counts, alleged prosecutorial misconduct, denial of his motion for a mistrial, failure to suppress identification testimony, the denial of his D.C. Code § 23-110 motion, and merger of the two PFCV counts. We affirm as to all counts but remand for re-sentencing on the merged PFCV counts.
On August 6, 1998, Carolyn Wade, Albert King, and George West were at an outdoor cookout between apartment buildings in the 700 block of Brandywine Street in the Southeast quadrant of the District of Columbia. West and a man named Michael Green stood next to Wade, who had known them since they were children because they were friends of her brother. While the three stood together, King approached their location; suddenly, shots rang out from where West was standing. As Wade started to run to her apartment, she looked down and realized she had been shot in the leg. Wade was taken to D.C. General Hospital and treated for two gunshot wounds to her left leg. King was killed, an autopsy revealing he was shot four times in the chest.
In addition to Wade's trial testimony, Vinetta Logan testified that, after the first shots rang out, she saw one of the men standing next to Wade running toward her while firing back in Wade's direction. Logan saw King fall to the ground and she saw the other man who had been standing next to Wade run off in a different direction. Other evidence at trial included the testimony of Louis Saunders, who knew West from growing up in the same neighborhood and who was incarcerated with West in the same cell block while West awaited trial. Saunders testified that West told him he got into a fight with King at some point and that, when he heard King was at the cookout, West went and "did him," and that he shot a girl at the same time. The defense presented no witnesses at trial, but did enter into evidence excerpts of Wade's grand jury testimony that it argued were inconsistent with her trial testimony.
On September 14, the morning after the trial had concluded and the first full day of deliberations, the juror assigned to jury seat number 12 (juror number 493) informed the courtroom clerk that the day before she saw someone she knew in the courtroom. The trial judge directed the jury to suspend deliberations and conducted a voir dire in chambers of juror 493 with the prosecutor and counsel for West present. Juror 493 claimed that this person, Marcus Brooks, whom she knew from elementary and junior high school, saw her and then covered his mouth with his hand and appeared to speak to the person next to him about her. Juror 493 was afraid because she believed Brooks to be a friend of West, and because Brooks knew where she lived. She informed the judge that she had mentioned her concern to three other jurors on the morning of the fourteenth, and that she continued to be concerned about her ability to decide the case.
At the joint request of the parties, the court struck juror 493. West moved for a mistrial, which the trial court took under advisement pending a voir dire of the remaining jurors. After receiving suggestions and proposed questions for the voir dire, the court's voir dire revealed that four other jurors had noticed juror 493 was upset and spoken with her about it. Of those four, one juror knew only that juror 493 had seen someone she knew in the courtroom; the other three knew both that she had seen someone and that he appeared to have whispered something about her, and that juror 493 was upset and afraid. Of those three jurors, juror 765 stated that she speculated that Brooks might be a friend of the appellant.
In addition to instructing all of the jurors that they were not to draw any inferences from the excusal of juror 493, who the court informed had been excused for personal reasons, the trial judge cautioned each juror that he or she was to decide the case based solely on fair consideration of the evidence. Each of the four jurors who spoke with juror 493 averred he or she would follow this instruction. Following this voir dire, the trial judge concluded that none of the jurors exhibited any bias and denied West's motion for a mistrial.
After his conviction on all charges, West filed a § 23-110 motion alleging ineffective assistance of trial counsel for failing to object to admission of Saunders' testimony on the ground that it violated West's Sixth Amendment right to counsel. The trial judge denied the motion without a hearing after ruling that Saunders was not acting as a government agent and thus West's constitutional rights were not violated by the conversation. We consolidated West's appeal of the denial of his § 23-110 motion with his direct appeal.
II. Transferred Intent Instruction
West argues, for the first time on appeal, that the doctrine of transferred intent is inapplicable to an assault with intent to kill charge when the victim was not actually killed. West contends, therefore, that the trial court erred when it gave the jury the following instruction for the AWIKWA charge:
Specific intent to kill in this context means purposely or a conscious intention to cause death. You are further instructed on this offense that when an individual intends to kill one person, but mistakes [sic] or inadvertently injures another person who may not be the intended target, the law ...