Appeals from the Superior Court of the District of Columbia. (Nos. F6714-99, F2377-00, F2378-00 & F1260-00). (Hon. Russell F. Canan, Trial Judge).
Before Reid and Washington, Associate Judges, and Steadman, Senior Judge.*fn1
The opinion of the court was delivered by: Steadman, Senior Judge
On August 5, 1999, one man was fatally shot and another man was stabbed during an early morning break-in at a house at 1303 T Street Northwest. The four appellants, William Baker, Eric Franklin, Jamal Sampson, and Bryant Woodland, who together entered the house that night while heavily armed, were tried jointly before a jury and all convicted of first-degree burglary while armed, first-degree felony murder while armed, first-degree premeditated murder while armed, assault with intent to kill while armed, aggravated assault while armed, and two counts of possession of a firearm during a crime of violence (PFCV) (one relating to the burglary and one relating to the murder).
In these consolidated appeals, appellants make eight distinct arguments, none of which requires reversal. The two major arguments are: (1) the indictment for burglary while armed was constructively amended by the trial court's instructions on intent in response to a jury note, requiring a new trial for all four appellants; and (2) Franklin, Sampson, and Woodland argue that introduction of an inculpatory statement Baker made to police violated their Confrontation Clause rights. Additional arguments are: (3) a jury instruction on co-conspirator liability was unconstitutional because there was no indicted conspiracy charge; (4) there was insufficient evidence to support convictions based on aiding and abetting or a conspiracy; (5) there was insufficient evidence of premeditation and deliberation for first-degree murder; (6) evidence that the individual who was stabbed suffered serious bodily injury was insufficient for the aggravated assault convictions; (7) the trial court erred in admitting expert testimony about DNA evidence from blood samples; and (8) certain convictions merge for purposes of double jeopardy, namely first-degree murder and felony murder as well as the two convictions for possession of a firearm during a crime of violence. The government concedes that the convictions for first-degree murder and felony murder cannot both stand. In all other respects, we affirm the convictions.
At three o'clock in the morning on August 5, 1999, Baker, Franklin, Sampson, and Woodland entered the house at 1303 T Street from an alley while heavily armed to steal drugs and money from Gary Lyles, a drug dealer who lived there. Lyles and three other residents of the house were inside at the time. Lyles eventually escaped unharmed and his housemate John Glenn was likewise not injured. Donald Pinkney was shot and killed near the back door. On the second floor, David Buford was stabbed. Robert Dockery, who lived across the street from 1303 T Street, testified that on August 4, 1999, he worked the 8 p.m. to 5 a.m. housekeeping shift at Howard University and drove his Nissan Pathfinder truck home for a lunch break around midnight. Dockery stated that after he went into his apartment, a man named Joe, later identified as Joe Gaither, who lived in the apartment downstairs knocked on his door. Dockery testified that Gaither asked him to try to convince some people Dockery knew not to kill a friend of Gaither's known as "Don Juan" -- later determined to be Donald Pinkney -- who lived across the street at 1303 T Street. Dockery declined, in part because he "didn't really believe it, but then again, you can't tell what's gonna happen," but Dockery did go outside.
Dockery testified that when he came outside onto his front porch, he saw four men standing outside Gaither's basement apartment. Dockery made in-court identifications of all four appellants, whom he had known growing up in the same neighborhood, as the four men he saw downstairs. Dockery testified that the appellants all had guns, except for Woodland, who had a knife, and that Baker also had a knife. Dockery further testified that when he saw the four men standing outside, Baker was telling Sampson and Woodland to go upstairs in the house across the street while Baker and Franklin would be going downstairs. Dockery described the guns as follows: Baker had a ".45," Franklin had a "nine," and Sampson had a "Tec." Dockery also said that after he went back inside his apartment, he saw the four men run across the street to an alley behind 1303 T Street, getting within 10 feet of the back door, before Dockery left to go to his truck and head back to work.
Shortly thereafter, when Dockery was pulling off in his truck to return to work, he saw Baker, Franklin, Woodland, and Gaither in the alley where Dockery had been parked behind his own apartment. Gaither asked Dockery if he could take Baker to the hospital. Baker was holding the right side of his neck and Dockery believed he had been shot. Dockery testified that he saw Woodland discard a white mask before running out of the alley. Baker and Franklin got in the truck and on the way to the hospital, Franklin twice stated that his gun got jammed, and both Baker and Franklin threw guns out of the windows of the truck. After Dockery pulled up to the emergency room and reached over and opened the passenger door, Baker "fell out" of the truck, and Franklin climbed out and left. By this time, it was approximately 3:30 a.m. on August 5 and Dockery went back to work. On cross-examination, Dockery testified that he believed Gaither had something to do with the plan and may have been the "mastermind."
Gaither also testified for the government. Gaither previously lived in the basement of 1911 13th Street N.W., below Dockery's apartment, and Gaither kept a key and continued to use the apartment after he moved out and stopped paying rent in December 1998. At around 11 p.m. on August 4, 1999, Gaither went to the basement apartment on 13th Street and, sometime after midnight, the four appellants came up to his porch and talked with him for about an hour, primarily regarding their plan to rob a drug dealer named Gary Lyles who lived at 1303 T Street. Gaither "really didn't know what was going to go down" and could not determine from the men's behavior whether anything was going to "go down that night" but his "main concern was Donny." According to Gaither, Baker asked him if he wanted to take part, but Gaither declined because "a buddy of mine's was in there." Gaither further testified that he told the appellants "you do what you do, just leave my friend alone." Gaither had previously testified that a "good friend" of his named Donald Pinkney lived at 1303 T Street. At that point, Gaither went upstairs to ask Dockery, who had grown up with and knew the four men, to talk with them to prevent any harm coming to Pinkney. Contrary to Dockery's testimony, Gaither stated that Dockery came out and spoke with the men for about twenty minutes but Gaither was not entirely sure what Dockery was saying -- "word for word I don't know exactly what he said." During that time, Sampson said to Gaither and Dockery "fifteen years later, don't say nothing about this." Gaither denied seeing any weapons in possession of the four appellants.
Gaither testified that he asked Dockery for a ride home and, as he was walking to Dockery's truck, Gaither saw the four appellants walk across the street and disappear into the dark alley that abutted the rear of 1303 T Street, but he never saw them enter the house. Shortly thereafter, Baker ran back toward the truck, breathing hard, and told Dockery to take him to the hospital. Gaither also saw Woodland and Franklin and heard Woodland say to Franklin, "what you do that for." Franklin and Baker got in Dockery's truck. Gaither left through the closest alley and never returned to the neighborhood.
Two residents of 1303 T Street, Gary Lyles and David Buford, also testified at trial. David Buford testified that he was in his second floor bedroom at around 3:15 a.m. on August 5 when he heard what sounded like gunshots, which prompted him to go down the hall to his housemate John Glenn's room. While Buford was in the hallway walking back to his own room, a man who Buford described as about six foot or six foot one inch tall, slender, wearing dark clothing and a ski mask came at him with a knife and what looked to Buford like an automatic weapon. Buford was ordered to get on the floor but instead reached for the assailant's gun and knocked it down the stairs. At that point, Buford was stabbed five or six times. At trial, the government argued that Buford's assailant was Jamal Sampson. Buford was hospitalized for five days, had 40 staples in his left arm and 35-40 staples in his stomach, and was stabbed three times in the head.
The first responding police officer on the scene testified that Buford was calling for help from the upstairs roof when he entered the house and appeared to be in a lot of pain. That officer's partner testified to seeing a large amount of blood running down the stairs to the first floor. One of the paramedics who transported Buford to Howard University Hospital testified that there was so much blood upstairs that he was "slipping and sliding." The paramedic further testified that Buford was alert and oriented when they carried him out the front door of the house. Anthony Onorato testified as a DNA expert concerning the blood evidence collected at the scene and blood samples taken from appellant Baker's clothing at the hospital. Onorato testified that none of the appellants' blood was found at the crime scene and only Baker's blood was recovered off his clothing.
Gary Lyles testified that in August 1999 he occupied the front bedroom on the first floor of the house at 1303 T Street and made a living selling large quantities of cocaine, which he sometimes stored at the house.*fn2 On the night of the break-in, Lyles returned home at about 1:30 a.m. after a night out with his girlfriend, Regina Curtis, also known as Shorty, and went into his bedroom and shut the door. His roommate Donald Pinkney, who Lyles testified was also a drug dealer, was watching TV in the dining room, and his other housemates John Glenn and David Buford were upstairs sleeping.
Sometime later Lyles was getting ready for bed when he heard "a large bash" from "the rear of the house" and then the "pop, pop, pop" of several gunshots. Lyles grabbed his .380 gun from under his mattress and crouched between the bed and the dresser when the door, which had window panes in it that he could see through, began to open and he saw a gun coming around the door with a person peeking into his bedroom. Lyles fired two or three rounds toward the door before hearing someone stumble down the hallway away from his door saying, "Mal, I'm hit, Mal, I'm hit." Lyles testified that the person who appeared at his bedroom with the gun was wearing a ski mask, but he could still see various parts of that person, whom he later identified as Baker. Then another man with a larger weapon opened Lyles' door and started firing, at which point Lyles fired back, crawled to the door, shoved a chair against it and moved away while the shooter kept firing through the door. When the house quieted down, Lyles left with his gun, which he threw down a sewer hole in Maryland. Lyles later identified Baker and Sampson as the first and second individuals who assaulted him. Lyles knew Baker, whom he believed he had shot, as Shorty's "play son" or adopted son. Lyles had also met Sampson three to five times prior to August 5. Sampson's left thumbprint was recovered from the brass doorknob of an iron gate on the back door of the 1303 T Street house.
Lyles also testified that as he left the house after it got quiet, he saw "a body laying on the floor" that he believed was Donald Pinkney. A D.C. medical examiner testified that Pinkney died from heavy bleeding due to gunshot wounds, including three to the back, one to the front torso, one to the side torso, and one to the right arm, caused by four bullets that entered his body. Several .45-caliber cartridge casings were found alongside Pinkney, consistent with the .45-caliber handgun that Dockery saw Baker carrying.
Detective Lazaro Gonzalez testified over objection that Baker made a statement to police after his arrest on September 10, 1999 that Baker "had spoken with a person, a female named Shorty, who told him that at 1303 there was somebody there that had a lot of drugs and money, and she wanted them to go ahead and take it. I believe she mentioned it to him twice, the second time he said we knew what to do from there." Previous conflicting statements of Baker's that were made to police were also introduced, including Baker's first account that he was shot by two men with guns at 11th and V Streets and taken to the hospital by a stranger and Baker's second account that he and Pinkney were playing video games at 1303 T Street when they were taken into the backyard by some guys and made to get on their knees and then Baker was shot in the neck as he fled after hearing gunshots inside the house.
For the defense, only Franklin put on evidence. Franklin called Detective Linda Wingate, who testified that Lyles did not initially claim to recognize anyone in the house that night and that she initially believed Lyles did the shooting inside the house. On cross examination, Wingate testified that she had never spoken to Lyles, but had only spoken to his attorney.
The trial court instructed the jury over objection on aiding and abetting and vicarious liability of co-conspirators under Pinkerton v. United States, 328 U.S. 640, 647 (1980), informing the jury that "a conspirator is responsible for offenses committed by his fellow conspirators . . . if he was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of or as a natural consequence of the conspiracy."
The jury returned verdicts of guilty on all counts for all four appellants.
II. Constructive Amendment of the Indictment
All four appellants argue that the indictment was constructively amended by an instruction that was given in response to a jury note. The indictment charged appellants with armed burglary "with intent to assault Donald W. Pinkney, III."*fn3 The jury sent out a note during deliberations asking:
Do we have to find that Donald Pinkney was specifically targeted for the charge of first-degree burglary while armed, or that someone, ...