Appeal from the Superior Court of the District of Columbia. (F9479-97). (Hon. Rufus G. King, III, Trial Judge).
The opinion of the court was delivered by: WAGNER,Chief Judge
Before WAGNER, Chief Judge, and GLICKMAN, Associate Judge, and STEADMAN, Senior Judge.*fn2
Appellant, Vonn Washington, was charged with one count of first-degree premeditated murder (D.C. Code §§ 22-2401, -3202 (1996)),*fn3 two counts of assault with intent to kill while armed (AWIKWA) (D.C. Code §§ 22-501, -3202 (1996),*fn4 three counts of possession of a firearm during a crime of violence (PFCV) (D.C. Code § 22-3404 (b) (1996),*fn5 and one count of carrying a pistol without a license (CPWL) (D.C. Code § 22-3404 (a) (1996)).*fn6 Following a jury trial, appellant was found not guilty of premeditated murder and AWIKWA, but convicted, respectively, of the lesser-included offenses of involuntary manslaughter while armed and assault with a deadly weapon (ADW). He was also convicted of CPWL and all three counts of PFCV. He argues for reversal on the grounds of: (1) improper and prejudicial prosecutorial argument; (2) exclusion from evidence of a learned treatise; and (3) conviction of CPWL, which he contends is unconstitutional under the Second and Fifth Amendments. Appellant also argues, and the government concedes, that his three PFCV convictions merge. Finding no reversible error related to appellant's first three arguments, we affirm the convictions, and we remand to the trial court with instructions to vacate two of the PFCV convictions.
The government presented evidence showing that on July 10, 1996, appellant, intending to shoot Kevin Jackson, shot and killed his best friend, Kenneth Anderson. At about this time, there were two rival groups in the area of Wayne Place, Southeast, and the shooting arose out of a feud between them. Kevin Jackson testified that he associated with a group which included Antonio West and his friends, Aaron and "Poo." Appellant and Anderson were a part of another group. Jackson testified that about a week before Anderson was killed, he was in the area with West, Aaron, Poo and Shawn when shots were fired. Poo and Aaron returned the fire, and Aaron was hit in the leg. Jackson said that his car was torched after the shooting on Wayne Place.
According to Jackson, the night that Anderson was killed, Jackson was at home with his little brother, Poo, Antonio, and others. He went outside to meet a friend, Mike Ko, who parked his Land Cruiser right in front of Jackson's house. Jackson entered the vehicle, and while they were talking, Anderson drove up in a white automobile. Appellant was in the front passenger seat. Jackson testified that he saw Anderson and appellant raising their pistols, heard gunshots, ducked and started firing back. Jackson said that the vehicles were only a couple of feet apart and facing in the opposite directions. Jackson testified that he fired his .38 revolver basically out of the window, but Ko, who also had a weapon, did not fire at all. Jackson said that he did not shoot downward because he was firing over Ko's back, and he was afraid of hitting him. Jackson further testified that the Land Cruiser was taller than the car in which Anderson and appellant were sitting, with the top of the smaller car's roof reaching only up to the mirror of the Land Cruiser. The Land Cruiser's driver's side window and front passenger side window were shattered. Jackson said that glass from the vehicle went into his eyes, causing him to believe that he had been shot. After emptying his five-shooter revolver, Jackson and Ko jumped out of the car, ran around the corner, and hid behind a building. According to Jackson, Anderson's car drifted off slowly. Frightened, Jackson and Ko ran back to the house and told the people there that Anderson and appellant had tried to kill them. Jackson testified that he did not call the police because he hoped that those involved would reach an understanding, since they had all grown up together.
Jackson testified that he got rid of the .38 revolver. In searching Jackson's house pursuant to a warrant, the police found a .25 caliber gun, bullets of the same caliber and .9mm ammunition, which he said he had kept because he was told they might fit a .380 weapon that he had owned. Jackson also acknowledged having .45 and Mac-90 shells, although he denied ever having weapons of that make.
Appellant testified that he was not involved in the feud because he considered Jackson and the others to be friends. According to appellant's testimony, the night of the shooting, Anderson asked him to go with him while he attempted to "squash" the differences between the two feuding groups. Anderson was driving his white 1986 Grand Prix, and appellant was in the passenger seat. When they arrived at the corner of 25th and Savannah Street, S.E., they spotted Ko and Jackson. Anderson handed appellant a .9mm Smith &Wesson handgun, and Anderson was armed with a .9mm pistol manufactured by Ruger. Appellant testified that Ko rolled down his window until about four inches remained up, and Anderson started talking to Ko and Jackson. He said that he saw a burgundy Jetta automobile behind the car, and turned the rearview mirror toward him to the point that Anderson could not use it.*fn7 Appellant testified that Aaron and "Pooh" got out of the Jetta, and he told Anderson to pull off. According to appellant, shots were fired, and he returned the fire. Appellant testified that he had turned his upper body to the left, where the Land Cruiser was, and shot out "through the back" of that vehicle. When he told Anderson to drive away, he realized that the car was "coasting." He saw Anderson "slumped over," with blood coming from the back of his head. While still in the passenger's seat, appellant drove the car to Southeast Community Hospital. He described how he was trying to hold Anderson's head up while driving. Appellant parked the car at the hospital and ran away, leaving his friend in the vehicle.
Appellant testified that he did not call police. Six or seven days after the shooting, however, he was contacted by prosecutors and eventually spoke to them. He testified before the jury that he told the prosecutors that he had a .357 revolver because he knew that the .9mm would leave shell casings in the car, whereas the .357 would not. He also told the prosecutors that he was not in the car and did not see anything.
Dr. Jacqueline Lee, deputy chief medical examiner for the District, who qualified as an expert in forensic pathology, testified that Anderson's death was a homicide caused by a gunshot wound to the head. A .9mm Luger, Winchester Western, silver-tipped, metal jacket bullet and fragments were recovered from Anderson's brain. Based on Dr. Lee's review of the autopsy, she concluded that the bullet had a "very tight spin," meaning that it was unlikely that it made contact with any object before hitting Anderson in the head. She testified that the trajectory of the bullet was upward, traveling from the back to the front of the head and upward. She testified that the circumstances were consistent with a shot fired by the passenger (appellant) and hitting the driver, Anderson, if the driver was looking out of the window.
Dr. Lee testified that the photograph of the decedent and autopsy report show an absence of stippling which could indicate that the muzzle of the gun was twenty to twenty-four inches away from the body, or that it was closer and something blocked the gunpowder from being deposited.*fn8 She indicated that her estimates were based on the type of gun powder, as well as the type of gun and that the distance at which stippling would occur depends upon several variables, such as the type of gun, type of gun powder, and length of the gun. She said that hair around the wound would impact the presence of gun powder and that any soot could have been washed away when Anderson's wound was cleaned at the hospital. However, she stated that while soot can be washed away, stippling cannot because it is a burn to the skin. Dr. Lee acknowledged that although hair can affect the amount of visible stippling, Anderson had closely cropped hair, making the scalp visible at some points. Dr. Lee testified that the decedent's wound was not consistent with the bullet passing through a door panel of a car or glass because the bullet would have been deformed.
Mr. Leon Krebs, who qualified as an expert on gunshot residue, firearms and ammunitation identification, and trajectory analysis, testified that the .9mm cartridges in question are loaded with disk or flake powder. He stated that in the case of flake powder, stippling would occur if the muzzle of the gun was within twelve inches of the victim's skin. Krebs also testified that Anderson's wound was consistent with a shot being fired from the passenger seat of the car striking the driver in the head. Krebs testified that, considering that the .9mm silver-tipped bullet in this case was propelled by flake or disk powder, one would expect to see stippling only if the gun had been fired within a distance of twelve inches of the decedent. Krebs testified that since the decedent's wound had a fairly round margin of abrasion, it was most likely caused by an intact bullet passing through the skin. He testified that a regular or circular wound and the lodging of the core and jacket of the bullet inside the decedent's brain, as the evidence showed in this case, indicates that the bullet had not passed through any intermediate targets before striking the victim.*fn9
Appellant argues that the prosecutor's closing argument was improper and prejudicial in that it: (1) appealed to the sympathy of the jury, and (2) included facts not in evidence. The government responds that the challenged argument was based properly on the evidence or reasonable inferences therefrom. The ...