Appeal from the Superior Court of the District of Columbia (No. F-2334-97) (Hon. A. Franklin Burgess, Jr., Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before FARRELL, RUIZ and GLICKMAN, Associate Judges.
Appellant Denon Kitt was charged as one of two participants in the armed robbery, abduction and murder of Jesse Lee Baker. Tried separately from his alleged accomplice, Kitt was convicted of one count of first-degree premeditated murder while armed, three counts of first-degree felony murder while armed, the three predicate felonies of armed robbery, kidnapping and carjacking, and possession of a firearm during a crime of violence. Although Kitt challenges his convictions on a variety of grounds, we affirm all but two of them. Our recent en banc decision in Wilson-Bey v. United States, No. 01-CF-293 (D.C. July 20, 2006) requires us to reverse Kitt's premeditated murder and felony murder (carjacking) convictions (but not his two other felony murder convictions) for lack of proof that he had the requisite mens rea to commit those two offenses.
Jesse Lee Baker, the decedent, was the landlord of an apartment building complex located in the 3700 block of First Street, S.E., in the District of Columbia. When Baker made a visit to the complex to receive a $300 money order from a tenant, Kitt and a second man, who was later identified as Steven "Sweets" Crockett, were there waiting for him.*fn1 The two men accosted Baker as he was about to leave, frisking him and pushing him onto the hood of his car. Witnesses who knew and recognized Kitt saw him remove Baker's car keys from Baker's pants pocket and heard him ask Baker "What you got, what you got?" The two men then forced Baker into the back of his car and drove off, with Kitt at the wheel and Crockett in the front passenger seat. They were gone by the time the police arrived.
That evening, police officers responding to a report of a shooting in the 2200 block of Prout Street, S.E., came upon Baker's stolen car in an alley. Baker's body, clad only in a T-shirt, was lying in the back seat. Baker had been shot in the right side of his head and shoulder, and also in his wrist and hand.*fn2 Kitt had been observed in the vicinity of Prout Street earlier that evening by a witness who knew him from the neighborhood. This witness testified at trial that he saw Kitt removing his coat and "running fast" down R Street, away from Prout Street and toward his grandmother's house.
Another prosecution witness, Kitt's close friend Tom Catlett, testified that Kitt came to him and said that "he had got into a situation that he wasn't supposed to be in" with Crockett -- "a murder situation." Kitt told Catlett that "Sweets" unexpectedly shot someone with whom they were riding in a car: "He [Kitt] said he took his eyes off the scene for a minute and a gun went off."*fn3
To the detectives who arrested him, Kitt denied being present when Baker was killed but admitted being in Baker's car afterward. Describing himself as a car thief, Kitt said that he happened upon the car on Prout Street, saw that its door was open, got in, and looked around for the keys in order to steal the vehicle. Upon glancing in the back seat, however, he saw Baker's dead body. Immediately, he said, he jumped out of the car, slammed the door and ran.*fn4
II. The Murder Convictions
A. First-degree Premeditated Murder
First-degree premeditated murder is murder committed with the specific intent to kill after premeditation and deliberation. Williams v. United States, 858 A.2d 984, 1001 (D.C. 2004). "Premeditation means that the defendant formed the specific intent to kill the victim for some length of time, however short, before the murderous act." Id. (internal quotation marks and citations omitted). Deliberation, "which is separate from premeditation, requires that there was the reflection and turning over in the mind of the accused concerning his existing design and purpose to kill." Id. (internal quotation marks and citation omitted). Thus, in order for a charge of first-degree premeditated murder to be sustained, "the evidence must demonstrate that the accused did not kill impulsively, in the heat of passion, or in an orgy of frenzied activity." Frendak v. United States, 408 A.2d 364, 371 (D.C. 1979).
Kitt's argument that there was insufficient evidence of premeditation, deliberation or even a specific intent to kill on his part is well-taken. As a general rule, the requisite mens rea may be inferable from the facts and circumstances surrounding a murder, Ruffin v. United States, 642 A.2d 1288, 1291 (D.C. 1994), but it is difficult to draw that inference in this case because the circumstances of Baker's killing remain shrouded in mystery. The only eyewitness account of the shooting presented at trial was Kitt's version as reported by Catlett. According to that truncated account, Kitt neither anticipated nor intended the shooting. While the jury was free to disregard Kitt's account as self-serving and unreliable, it had no other direct evidence of exactly what occurred when Baker was killed. Arguably, as the government contends, there was sufficient evidence of premeditation and deliberation (and more than sufficient evidence of a specific intent to kill) on the part of the shooter, given that he brought the murder weapon to the scene, had ample time in which to contemplate and plan the shooting, fired more than one shot, and had a motive to eliminate Baker as a witness.*fn5 Cf. Baker v. United States, 867 A.2d 988, 1008 (D.C. 2005); Busey v. United States, 747 A.2d 1153, 1161-62 (D.C. 2000). But there was no proof that Kitt was carrying a handgun or that he was the shooter; the only evidence was that it was Crockett.*fn6 That Kitt carried out a preconceived plan to rob and abduct Baker certainly supported Kitt's conviction for felony murder, but it did not establish that Kitt also premeditated and deliberated Baker's slaying.
Kitt was prosecuted on the theory that he would be guilty of Baker's premeditated murder as an aider and abettor even if he did not intend it, so long as it was a "natural and probable consequence" of the other crimes (robbery, kidnapping, carjacking) he did intend to commit. Over Kitt's objection, the jury was instructed in accordance with that theory,*fn7 which did have support in our case law at the time of Kitt's trial. See, e.g., Morriss v. United States, 554 A.2d 784, 789 (D.C. 1989). More recently, however, in Wilson-Bey, supra, this court sitting en banc disavowed both the "natural and probable consequence" theory of aiding and abetting liability for premeditated murder and the jury instruction embodying that theory. We explained that the "natural and probable consequence" theory and instruction are erroneous and, indeed, unconstitutional, precisely because they purport to authorize a jury to find a defendant guilty as an accomplice to a crime without proof -- required by both that crime and the aiding and abetting statute -- that the defendant himself had the essential mens rea to commit that crime. The correct rule with respect to premeditated murder, we held, is ...