Appeals from the Superior Court of the District of Columbia (F-504-00 and F-505-00). (Hon. Russell F. Canan, Trial Judge).
Before Wagner, Chief Judge, and Schwelb and Reid, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Argued September 28, 2004
Following a jury trial, Lakeisha Wilson-Bey and Sckeena Marbury, who are sisters, were both convicted of first-degree premeditated murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1996).*fn1 The two women were also found guilty of several other offenses stemming from the same homicide.*fn2 The prosecution's theory at trial was that Ms. Wilson-Bey was the principal in the premeditated murder of Tomika Blackwell and that Ms. Marbury participated as an aider and abettor.
On appeal, both women raise a number of issues, but only one claim -- the contention that the trial judge instructed the jury erroneously with respect to the "intent" element of "aiding and abetting" first-degree premeditated murder -- requires extended discussion. The parties disagree over the question whether this claim has been preserved. The government points out, correctly, that neither appellant asserted in the trial court that the Redbook Instruction No. 4.02 (aiding and abetting),*fn3 which the trial judge included with one modification in his charge, should not be given in premeditated murder cases. The appellants point out, also correctly that, in its initial brief, the government did not argue that appellants had waived the issue, or that a plain error standard of review should be applied. According to appellants, the government has therefore "waived the waiver."*fn4 We need not resolve the dispute over the applicable standard of review because, assuming, arguendo, that we should treat appellants' claim as having been preserved, we are compelled by controlling case law, and in particular Daniels v. United States, 738 A.2d 240, 246--47 (D.C. 1999), and Byrd v. United States, 364 A.2d 1215, 1219 (D.C. 1976), to reject that claim on the merits. Accordingly, we affirm appellants' convictions.
On the evening of January 16-17, 2000, several young women were playing cards and drinking in an apartment in southeast Washington, D.C. An argument broke out between the decedent, Ms. Blackwell, and appellant, Sckeena Marbury, who was quite inebriated. After the women left the apartment, the dispute escalated from words to blows. Much to Ms. Marbury's chagrin, Ms. Blackwell easily bested her in the fight that followed. At the conclusion of the encounter, Ms. Marbury was lying on the ground with a bloody nose and with a knot on her head. Rankled by defeat and humiliation, with her judgment perhaps affected by the consumption of an immoderate amount of alcohol, Ms. Marbury wanted revenge.
In the hours after the fight, Ms. Marbury related to a few of her friends that she had been "jumped" by Tomika Blackwell and two of Tomika's friends. Appellant Lakeisha Wilson-Bey, who had previously clashed with Ms. Blackwell, was notified of her younger sister's beef, and eventually a group of eight young women, including both appellants, armed themselves with knives and baseball bats and set out in a van for Ms. Blackwell's apartment. Their ostensible plan was to find out why Ms. Marbury had been beaten up and to avenge Ms. Marbury by fighting and vanquishing Ms. Blackwell and her friends. All of the women in the van were subsequently charged with first-degree premeditated murder while armed, but several of them agreed to cooperate with the government in exchange for comparatively favorable plea agreements, and three testified at trial against the appellants.*fn5 The facts described below are based largely on their testimony and that of Ms. Blackwell's boyfriend, Arnold Rucker.
The van in which the group of eight travelled to seek out Ms. Blackwell was owned and driven by appellants' friend, Angel Lewis. According to one of the participants in this ill-advised expedition, Ms. Wilson-Bey announced her intention to kill "that bitch," referring to Ms. Blackwell;*fn6 this threat was allegedly made in the presence of several of the young women, including Ms. Marbury. There was also testimony that Ms. Wilson-Bey later expressed the belief that she had in fact killed Tomika. Another witness, Teresa Brown, testified that Ms. Marbury had also stated her intention to kill Ms. Blackwell. The prosecution witnesses were all impeached, at least in some measure, but there was evidence which, if credited, would permit an impartial jury to find that both appellants set out deliberately to murder Ms. Blackwell in retaliation for her having beaten up Ms. Marbury, and that Ms. Wilson-Bey executed this premeditated plan.
When the van arrived outside Ms. Blackwell's apartment house, the two appellants and their friend Lashawn Miller ran up to Ms. Blackwell's unit, Apartment 304. According to prosecution witnesses, Ms. Wilson-Bey had a butcher knife in her hand, and Ms. Marbury was carrying both a bat and a knife. The other occupants of the van, several of them armed, followed the initial trio up the stairs.
At the time the revenge-seekers arrived on the scene, Ms. Blackwell was inside the apartment with her boyfriend, Arnold Rucker, and another woman. Rucker became aware of the commotion outside, and he heard someone calling for Ms. Blackwell. Rucker opened the door, and he observed what he described as "a rack of females" in the hall. He testified that several of the women were carrying weapons. Rucker did not know Ms. Wilson-Bey, but he recognized Ms. Marbury as the young woman whom Ms. Blackwell had fought and conquered earlier that night. According to Rucker, Ms. Wilson-Bey was at the head of the group, holding the butcher knife, and she asked for Ms. Blackwell. Ms. Blackwell walked to the door, stood behind Rucker, and announced: "I'm right here." Although she was not armed, Ms. Blackwell advanced on Ms. Wilson-Bey. Rucker tried unsuccessfully to restrain Ms. Blackwell, but while he was attempting to do so, Ms. Wilson-Bey swung the knife at Ms. Blackwell several times, inflicting a stab wound near her victim's right eye. Ms. Blackwell, bleeding profusely, nevertheless tried to fight her knife-wielding assailant. The two women struggled on the floor, and during the ensuing melee, Ms. Wilson (and perhaps others)*fn7 stabbed Ms. Blackwell several more times. One witness testified that Ms. Marbury struck Ms. Blackwell with a bat while Ms. Wilson-Bey was stabbing her; according to Rucker, however, Ms. Marbury, who by all accounts was very drunk, was just standing there, crying.
Unfortunately, Ms. Blackwell's injuries were fatal. At approximately 4:00 a.m. on the morning of January 17, officers from the Metropolitan Police Department arrived at the apartment. They found Ms. Blackwell unconscious and suffering from multiple wounds to the face and body. The officers transported Ms. Blackwell to D.C. General Hospital. At 4:30 a.m., Tomika Blackwell was pronounced dead.
Ms. Blackwell was not the only person who suffered injury to person or property as a result of the criminal activities of the appellants and of the other members of their group. Arnold Rucker was stabbed in the arm, and although he left the hospital before being treated,*fn8 he later testified that he suffered intense pain for two weeks. Moreover, after the appellants and their friends left Ms. Blackwell bleeding to death in her apartment, they proceeded to the home of Teresa Brown, Ms. Blackwell's friend; they did so because Ms. Marbury had stated that Ms. Brown had helped Ms. Blackwell to attack Ms. Marbury. Upon arrival at Teresa Brown's apartment house, the women tried to locate Ms. Brown's apartment, yelled at Ms. Brown to come out, and Ms. Wilson-Bey threatened to kill her. When Ms. Brown declined to come down, they took turns stomping on Ms. Brown's automobile and also shattered the car windows, inflicting over $700 worth of damage.
A forensic pathologist called by counsel for Ms. Wilson-Bey testified that Ms. Blackwell died as a result of a stab wound in the neck. The witness opined that the fatal injury had been inflicted by a small knife with a narrow blade, and could not have been caused by a large knife such as the one Ms. Wilson-Bey was carrying.*fn9 At the trial, Ms. Wilson-Bey's attorney contended that his client neither killed the decedent nor intended to do so. Abandoning his initial theory that Ms. Wilson was not present when the decedent was stabbed,*fn10 counsel also argued that Ms. Wilson-Bey was acting in self-defense. Ms. Marbury's defense was essentially that she was drunk and that she took no part in the armed assault on Ms. Blackwell. Neither appellant testified.
II. THE AIDING AND ABETTING INSTRUCTION
Although, at trial, the government identified Ms. Wilson-Bey as the principal in the armed premeditated murder of Ms. Blackwell, the prosecutor contended that, as an aider or abettor, Ms. Marbury was guilty of the same offense. The prosecutor asked the court to make it clear to the jury that Ms. Marbury did not have to go with the specific intent to commit the ultimate crime, which in this case would be the killing. [A]ll [that] would be necessary was that she participate in some unlawful manner while present and that she have some desire to participate and to make whatever the unlawful purpose was to succeed in this case.
Subsequently, the prosecutor added:
[O]ur concern is that the jurors would think that the crime in this case is the ultimate crime which was the murder, as opposed to the defendant being guilty if they [sic] participated in any unlawful way at the scene, whether there was the intent to kill, which was the crime, or merely participated in the assault.
. . . I want the jury . . . to be clear that as long as they're there and participating [in] the assault, what's going on on that platform, then [all] the defendants can be found guilty [of premeditated murder]. This all goes to foreseeability, natural and reasonable consequences of the acts. I just don't want them to hold the defendants to the commission of the murder.
In order to accomplish the goal of making it clear to the jury that Ms. Marbury could properly be convicted of premeditated murder without intending that Ms. Blackwell be killed, the prosecutor asked the trial judge to modify Instruction 4.02 (Aiding and Abetting) of the 1993 Redbook*fn11 by making intentional participation in a "criminal venture" (and not merely in a crime) a sufficient basis for conviction. The judge expressed agreement ...