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Gardner v. United States

May 4, 2006

IVERY Y. GARDNER, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (No. F-1482-95) (Hon. Reggie Walton, Trial Judge) (Hon. Harold Cushenberry, Judge Receiving Verdict) (Hon. Herbert B. Dixon, Jr., Remand Judge).

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

Argued June 17, 2003

Before GLICKMAN, Associate Judge, and KING and TERRY,*fn1 Senior Judges.

On February 14th, 1995, Razell McCoy, Charles Johnson, and Tayron Fleming were shot and killed while seated in a burgundy Nissan Maxima parked near the intersection of Georgia Avenue and Buchanan Street, in the northwest quadrant of the District of Columbia. In November 1997, a jury convicted appellant Ivery Gardner of three counts of second-degree murder*fn2 as lesser included offenses of first-degree murder,*fn3 possession of a firearm during a crime of violence or dangerous offense,*fn4 and carrying a pistol without a license.*fn5 Gardner claims that the trial court committed several procedural errors warranting a reversal of his convictions. We affirm.

I.

Within an hour of the shooting, police apprehended Gardner on a nearby street based on several eyewitness descriptions of the gunman's physical characteristics and clothing. Police found a box of ammunition in the pocket of the coat that Gardner was wearing. That ammunition matched both the bullets found in the murder weapon (recovered on another street several blocks away) and the bullets recovered from the bodies of the decedents.

At trial, several police officers testified as to the physical and ballistic evidence, and to the details of Gardner's apprehension and arrest. The government mainly elicited its theory of the case through the testimony of Charles Walker and Victor Drummings. Walker testified that he was close friends with the three decedents, and that they all knew Gardner from the neighborhood. Walker made a living as a drug dealer, and in early February 1995, he bought a white Cadillac DeVille with the proceeds of his sales. At the time, Walker owed Gardner $600 from a transaction in which Walker had obtained drugs from Gardner.

According to Walker, at about 6 p.m. on the evening of the murders, Gardner and a friend, Walter Deal, saw Walker in the Cadillac. Gardner hailed Walker to the side of the street, and Gardner requested the $600. When Walker replied that he did not have the money, Gardner ordered him out of the Cadillac at gunpoint, and drove off in the Cadillac after informing Walker that he would return the car once Walker had paid his debt. Walker then met with a friend, Michael Hunter, who drove Walker to a motel where Walker spent the night.*fn6 Walker intended to earn enough in drug sales the following day to recover his car from Gardner, but by the next morning his three friends had been murdered and Gardner was in police custody.

Victor Drummings testified that on the evening of the 14th at around 9 p.m., he and the three decedents McCoy, Johnson, and Fleming were driving in Fleming's Nissan when they stopped at a gas station where Drummings used the public telephone. Gardner then pulled into the station driving Walker's Cadillac. Johnson asked Gardner where Walker was, and Gardner replied that he had dropped Walker off at Walker's girlfriend's house. As the group left the gas station, they agreed that it was unlikely that Walker would allow anyone else drive his new Cadillac, so they returned to the station and maneuvered the Nissan so as to block the Cadillac from exiting. Johnson went to speak with Gardner while Drummings used the pay phone again. Although Drummings could not hear what was said, it appeared to him that Johnson and Gardner were arguing. Shortly afterward, Gardner left the gas station lot in the Cadillac.

Within minutes, however, Gardner returned, parking the Cadillac so that the Nissan was trapped. Angered, Johnson went over to speak to Gardner, and again, it appeared to Drummings that the two were arguing. Eventually, Johnson and Gardner shook hands, and Johnson returned to the group, explaining that Gardner had Walker's Cadillac because Walker owed Gardner money. According to Drummings, Johnson also reported seeing a pistol in Gardner's waistband.

Thereafter, according to the testimony of eyewitnesses Joyce Hebron, Vonderleria Butler, Willie Kennedy, and Portia Brown, the three decedents had another encounter with Gardner at approximately 2:30 a.m. A man matching Gardner's description was seen near the intersection of Georgia Avenue and Buchanan Street. That man leaned into the driver's side window of a dark-colored car, and several gunshots were fired. The testimony further indicated that, while carrying an object that appeared to be a gun, the man went around to the passenger's side of the car, opened the door, reached into the back of the car, fired several more shots, and then fled in a white Cadillac.*fn7

Finally, Clinton Reid testified that he had been a fellow inmate of Gardner's at the D.C. Jail, and that the pair met while Gardner was awaiting trial. Reid testified that Gardner said that he "did it in self-defense."

Gardner testified on his own behalf, admitting that he was present during the shooting, but claimed that Walker was the actual gunman. According to Gardner, he and Walker had spent much of the night together, first at a high school basketball game, and later at a strip club called the Penthouse. After the club closed, the pair encountered the decedents on the street, and Walker unexpectedly killed the three men as a result of a debt which Johnson owed to Walker. Gardner testified that after the shooting, Walker got into the back seat of the Cadillac and ordered him to drive away. Gardner complied, and a few minutes later, the pair abandoned the vehicle and parted ways. Because the February night was cold, Gardner grabbed a coat that was in the back of the Cadillac; he denied, however, that the coat was his or that he knew it contained the box of ammunition.*fn8 On cross examination, Gardner conceded that his appearance that evening matched the eyewitness descriptions of the gunman.*fn9

The jury deliberated for several days, ultimately returning the guilty verdicts. Gardner timely appealed, but we remanded the record on June 18, 2003, for further findings on the question of whether the transcript of Gardner's testimony, which the jury had requested, was actually received by the jury during their deliberations. Following supplemental findings of fact by the trial court and supplemental ...


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