Appeal from the Superior Court of the District of Columbia (F-6468-97). (Hon. Rufus G. King, III, Trial Judge).
Before Terry, Farrell and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appellant Marcellus Taylor was indicted on a charge of first-degree premeditated murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1996),*fn1 but was convicted of the lesser-included charge of second-degree murder while armed, and two weapons offenses. He contends on appeal that the trial court erred in (1) in admitting prior consistent statements and other testimony from government witnesses, (2) giving the jury a "reasonable efforts" instruction over his objection, despite his initial selection of an "acquittal first" instruction, and (3) reminding the jury that the District of Columbia does not have a death penalty. We affirm the trial court's judgment of conviction.
The government presented evidence showing that sometime in June 1997, Phillip Richardson pistol-whipped Mr. Taylor because he suspected that Mr. Taylor had stolen his marijuana and gun. During the pistol-whipping, the gun discharged but no one was hit by the bullet. Efforts on the part of others to settle the differences between Mr. Richardson and Mr. Taylor failed and tensions between the two men increased.
Several weeks after the pistol-whipping incident, on the evening of July 31, 1997, Mr. Richardson, Bernard Adolphus (who also was known as "Killer"), and Thaddeus Mason were engaged in selling drugs on Second Street in the Southeast quadrant of the District of Columbia. Mr. Richardson and Mr. Adolphus were stationed at Wayne Place and Second Street, while Mr. Mason was positioned several blocks away at Wilmington and Second Streets. Mr. Mason's role was to direct potential buyers to Mr. Richardson and Mr. Adolphus. When Mr. Richardson suspected that Mr. Mason might be cheating on him by not directing potential buyers to him, Mr. Richardson walked to Wilmington and Second Streets to complain that he was not receiving potential buyers. He proceeded to direct the drug traffic, and to sell marijuana while sitting on the curb with Felicia Johnson, a resident of the neighborhood, who often obtained drugs from Messers. Richardson, Mason or Adolphus.
Although Ms. Johnson admitted that she had taken cocaine during the day on July 31, 1997, she claimed that she was not high in the evening, but she admitted that she had spoken with Mr. Richardson "to get some money [to] get [drugs]." She testified that approximately thirty minutes before Mr. Richardson was fatally shot, she saw Mr. Taylor exit a red Ford Escort, and proceed into a building with a pistol in hand. Later, she sat outside with Mr. Richardson; Mr. Mason also was present, sitting in front of his residence. Soon she saw a red Ford Escort slowly approaching. The streetlight was on and Ms. Johnson could see Mr. Taylor behind the wheel. Mr. Richardson got up, crossed the street, and the car pulled up to him. Ms. Johnson observed Mr. Richardson's face. He looked as though "he was going to die or something." Ms. Johnson saw and heard gunfire coming from the driver's side of the red Ford Escort, and the passenger in the car, whom she did not recognize, also appeared to be firing shots while leaning over the driver. After about five or six shots, Mr. Richardson began to run. Ms. Johnson thought more than one firearm was in use -- a revolver and an automatic gun. Ms. Johnson got down on the ground, looked back and saw gunfire, and then crawled away to the side of a building. She went to a friend's house "for a couple of minutes," but left there when she heard the sound of an ambulance. She went to her home where she saw her mother, Gwendolyn Johnson, and Linda Sellers standing out front. That same evening, she talked with Mr. Adolphus and Ms. Sellers about what had happened.
The next day, Felicia Johnson was questioned by the police. She gave a false name "because [she] did not want to get involved and be labeled as a snitch and [she] was scared. . . . for [her] life," even though she did not receive any such threats.*fn2 After the police discovered Ms. Johnson's real name, Ms. Sellers took her to the police station. Ms. Johnson told the police what she had seen on July 31, 1997. The police took her statement which she signed. Although Ms. Sellers was at the police station when Ms. Johnson gave her statement, the women were not in the same room. In response to a question from the prosecutor, Ms. Johnson stated that Ms. Sellers told her, after she gave her statement but before she signed it, that she would give her some money. Government counsel asked Ms. Johnson whether her statement "change[d] at any point." She replied, "no it did not." Defense counsel objected "on hearsay grounds as a prior consistent statement." Ms. Johnson later spoke with Assistant United States Attorney Patrick Rowan and told him what she had seen, but when an investigator for the Public Defender Service ("PDS") interviewed her, she declared that she did not know Mr. Taylor, had seen nothing, and was "high all day, all night." She explained that she lied to the PDS investigator because she "didn't want to testify . . . [and]
[b]ecause [she] was scared for [her] life." Ms. Johnson revealed that she had testified in an earlier proceeding in Mr. Taylor's case and claimed that part of the testimony she had given was true and part was not. She asserted that she was "confused" and "scared." And in response to the government's question as to whether she still was on drugs, she insisted that she was not and in fact had not taken any within the past six months. The trial judge again instructed the jury that Ms. Johnson's assertions as to why she earlier told lies was addressed to her "motive" and not to what Mr. Taylor did.
Mr. Mason also witnessed the red Ford Escort as it drove into the area. He saw the profile of the driver who was wearing a brown "jungle" hat with a brim and a string. He identified the driver as Mr. Taylor, but could not identify the person in the passenger seat. Contrary to Ms. Johnson's account, Mr. Mason stated that the gunfire came from the passenger window. After he was shot, Mr. Richardson ran down the street. The red Ford Escort followed him and Mr. Mason heard more shots. He watched as Mr. Richardson fell down, and Mr. Adolphus ran up the street from his location, shooting at the red Ford Escort.
Mr. Adolphus testified that he heard gunshots, saw Mr. Richardson run down the hill followed by the red Ford Escort, and more gunshots were fired from the vehicle. He maintained that he saw Mr. Taylor in the driver's seat when the car drove by him. Mr. Adolphus was "a few feet" from the car at the time. He ran to the home of Gwendolyn Johnson and asked her to call the police. Another neighbor, Linda Sellers, who had witnessed the June 1997 pistol-whipping of Mr. Taylor by Mr. Richardson and had tried to get the two men to reconcile their differences, saw Mr. Richardson on the ground following the shooting. Mr. Mason, Ms. Felicia Johnson, and Mr. Adolphus were on the scene. Mr. Adolphus took money from Mr. Richardson's pocket. At the sound of an ambulance, Mr. Adolphus, Mr. Mason and Ms. Johnson fled the scene.
Mia Lawrence, who admitted that she smoked marijuana, testified that she saw Mr. Taylor twice after he was pistol-whipped by Mr. Richardson; the first time, Mr. Taylor had a revolver, and the second time an automatic weapon.
Two to three weeks after the fatal shooting of Mr. Richardson, the police took Ms. Sellers to the police station. She was paid $100, which she later shared with Felicia Johnson. The police recovered cartridge casings from the scene of the shooting. The casings came from a .9mm automatic gun. Of the three bullets extracted from Mr. Richardson's body, two were made of lead and probably came from a revolver. After Mr. Taylor's arrest on August 10, 1997, keys to his apartment were found on his person and ...