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Brisbon v. United States

March 23, 2006


Appeal from the Superior Court of the District of Columbia (F-2555-00) (Hon. Wendell P. Gardner, Jr., Trial Judge).

The opinion of the court was delivered by: Terry, Senior Judge

Argued March 2, 2005

Before REID, Associate Judge, and BELSON and TERRY, Senior Judges.*fn1

Appellant was indicted for first-degree murder while armed, possession of a firearm during a crime of violence ("PFCV"), carrying a pistol without a license ("CPWL"), possession of an unregistered firearm ("UF"), and unlawful possession of ammunition ("UA"). A jury acquitted appellant of firstand second-degree murder while armed and UA, but found him guilty of the lesser included offense of voluntary manslaughter while armed, as well as the other three weapons offenses. On appeal from the judgment of conviction, appellant presents two claims of error. We reject one but find partial merit in the other. We hold that the trial court erred in refusing to admit the testimony of a defense witness, Calvin Brown, about an excited utterance made by appellant. Because this error was not harmless, we reverse the judgment and remand the case for a new trial.


On February 1, 2000, police officers found Michael Butler lying dead in an alley with a gunshot wound to the back of his head. Appellant was arrested several weeks later and charged with his murder.

A. The Government's Evidence

At approximately 8:00 p.m. on February 1, 2000, Charlene Smith was standing on the sidewalk in the 4600 block of Hillside Road, Southeast, conversing with appellant.*fn2 The only other person in sight at the time was Bernard "Pee-Wee" Coleman, who stood nearby but did not participate in the conversation. While Ms. Smith and appellant were talking, Mr. Coleman alerted them to the fact that "somebody was out back," whereupon appellant unzipped his coat, adjusted a gun at his waistband, and walked into a nearby alley. Coleman and Smith remained where they were. Ms. Smith then heard "more than two" gunshots, but she did not hear anyone screaming, arguing, or running before or after the shots were fired. Appellant then returned from the alley and said, "Ha, ha, now you know what happened. It might could happen to you and your kids."*fn3 Ms. Smith testified that appellant's demeanor was the same before and after he went into the alley. After appellant returned, she left him standing outside and went into her home across the street.*fn4

Cynthia Tate testified that she was at James McBride's apartment on Hillside Road when she heard gunshots shortly after 8:00 p.m. She went outside and, from a distance of about twenty-five feet, saw appellant*fn5 standing in the alley with a gun in his hand, approximately two feet from a body which was lying on the ground.*fn6 Ms. Tate said she did not hear anyone arguing or see anyone else nearby. She then went back inside Mr. McBride's apartment. On cross-examination, Ms. Tate admitted that she was under the influence of crack cocaine on the night of the shooting. She said she had smoked "a lot" of crack, but claimed it made her "more alert."*fn7

When Officer Paul Riggins arrived on the scene a few minutes later, he found Michael Butler lying face down on the ground and called an ambulance. The officer did not see anyone else in the vicinity. When the ambulance arrived, the emergency medical technicians examined Butler's body and determined that he was dead. Riggins then searched the body and found a gun in Butler's right coat pocket, which he left there.

Officer Dwayne Mitchell, a crime scene technician, processed the scene and found four latex gloves: two in a dumpster in the alley,*fn8 one on the ground next to Butler's left hand,*fn9 and one in Butler's left coat pocket. He also removed from Butler's right coat pocket a nine-millimeter semi-automatic handgun with one round in the chamber.*fn10 In addition, he seized a black knit cap and a grey hooded sweatshirt which Butler was wearing, both of which bore bullet holes. The next day Mitchell returned to the alley and found a spent cartridge*fn11 and a set of keys.

The medical examiner, Dr. Marie Lydie Pierre-Louis, conducted an autopsy and concluded that Butler died from a single gunshot wound to the back of his head. She recovered a bullet from Butler's brain.*fn12 She also opined that Butler's death was "quick," and that it would have been a "great miracle" if he had been able to walk after being shot. Dr. Pierre-Louis noted an abrasion above Butler's right eyebrow, which she said was consistent with an unbroken fall. In addition, she found that Butler had both alcohol and PCP in his system. Finally, the doctor testified that there was no evidence indicating that Butler had been shot at close range.*fn13

Finally, Detective Michael Baylor testified that, when he arrested appellant for Butler's murder on April 28, almost three months later, appellant said that he knew nothing about the shooting and was not there when it happened.

B. The Defense Evidence

The defense offered a significantly different version of events.

Testifying on his own behalf, appellant presented a claim of self-defense. On the evening of February 1, he said, he was visiting Quantrese Jones, who also lived in the 4600 block of Hillside Road. At about 8:00 p.m. he went to get his car, which was parked nearby on Easy Place. After leaving Ms. Jones' apartment, he took a shortcut to Easy Place through the alley behind Ms. Jones' building. His friend Bernard Coleman was entering the building just as appellant came out, but Coleman did not tell him anyone was in the ...

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