Appeals from the Superior Court of the District of Columbia (F3590-00 & F3591-00). (Hon. Russell F. Canan, Trial Judge).
Before Glickman and Washington, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Nebeker, Senior Judge
Opinion concurring in part and dissenting in part by Associate Judge GLICKMAN at p. 20.
At the conclusion of a jury trial, appellants were convicted on several counts, stemming from the events of June 12, 2000, in which appellants Roy and Settles opened fire on one another on a public street, resulting in the death of an innocent bystander, Grace Edwards. Appellant Settles was convicted of second-degree murder (D.C. Code §§ 22-2403, -3202 (1981)), two counts of assault with a dangerous weapon (ADW) (D.C. Code § 22-502 (1981)), one count of possession of a firearm during the commission of a crime of violence (PFDCV) (D.C. Code § 22-3204 (b) (1981)), and carrying a pistol without a license (CPWL) (D.C. Code § 22-3204 (a) (1981)). Appellant Roy was also convicted of second-degree murder (D.C. Code §§ 22-2403, -3203 (1981)), four counts of ADW, five counts of PFDCV (D.C. Code § 22-3204 (b)(1981)), one count of CPWL (D.C. Code § 22-3204 (a) (1981)), and one count of simple assault (D.C. Code § 22-504 (1981)). Both appellants timely noted appeals of these convictions, asserting error as to severance of the defendants, the jury instructions on causation, exclusion of evidence and merger of multiple PFDCV and ADW convictions. We affirm all of the convictions with the exception of appellant Roy's multiple PFDCV convictions.
We set forth here a general overview of the facts of this case. Those more detailed facts which may be relevant to a specific issue will be presented more fully in the subsections addressing those issues.
The appellants had a common acquaintance in Nacheta Harris. Harris had been Roy's girlfriend and is the mother of his child. Upon her break up with Roy, Harris began dating Settles. On the fateful morning, Harris and Settles arrived at her cousin's house on Valley Avenue. Settles had his motorcycle. Roy was waiting in the alley behind Valley Avenue for Harris and Settles and began running toward them. Settles, seeing Roy, dropped his motorcycle and began running away. Roy stopped where Harris was standing, punched her in the face, then ran after Settles, firing three or four shots from his gun. Settles did not return gunfire, but rather was able to escape. Roy gave up the chase at that point, returned to Harris, who he again punched in the face, and then went to a field leading to Tenth Place.
Settles, after running from Roy, arrived on Valley Avenue and met Ralph Faulkner who was sitting on his porch. Settles told Faulkner what had happened and asked him if he would retrieve his motorcycle and cell phone from the alley. Faulkner went to the cycle and saw a man, matching Roy's description, standing in the field across the street from the alley, watching him. He dropped the motorcycle and returned to his apartment. From his apartment building he could still see Roy. He was then standing near the footbridge to Tenth Place.
Settles proceeded to the apartment of a friend, Andre Brown, who was keeping Settles' gun under a mattress in the apartment. Brown retrieved the gun and gave it to Settles who left the apartment, calling for Brown to come with him. Outside, another friend, Bernard James, was encountered. Settles asked Brown to drive him to Tenth Place, which he did, accompanied also by James. Settles was in the front passenger seat with the window down and his gun in his lap when the car entered Tenth Place.
As the car entered Tenth Place, another witness, Charles Reeves, was sitting on the porch of his apartment building*fn1 and Grace Edwards was taking her morning walk. Some evidence reflected that Roy then came up out of a nearby stairwell, pointing a gun at the car. Settles fired three shots at Roy, who returned fire with several shots of his own. Witness Reeves had already run inside his building as the car continued up Tenth Place. Grace Edwards screamed and fell to the ground having been fatally hit by a stray bullet.
Having missed Roy, Settles told Brown to circle around, but while doing so, Brown noticed two police officers, in an unmarked car, driving behind him. Accordingly, instead of driving back to Tenth Place, Brown parked the car on Valley Avenue and the three men entered Brown's apartment building. Approximately five minutes elapsed from the time the men left for Tenth Place and the time they returned to the apartment.
Meanwhile, the officer had noticed Brown and the other men in the vehicle as well, and was about to check the car's tags in the computer, when he received a call for the shooting on Tenth Place. Upon his arrival on Tenth Place, he heard someone say that shots had been fired from a four-door Dodge Intrepid with three occupants. He broadcast a lookout for the vehicle he had previously seen. The car was later located parked on Valley Avenue. Ballistics evidence recovered from the scene showed that two guns were fired on Tenth Place, a 9 mm semiautomatic and a .380 caliber firearm.
Both appellants challenge their convictions on a number of grounds. Some of the arguments are identical for both appellants, some are merely related and finally some are unique to one appellant or the ...