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Freeman v. United States

December 21, 2006


Appeal from the Superior Court of the District of Columbia (F-8272-02) (Hon. Russell F. Canan, Trial Judge).

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

Submitted January 19, 2005

Before KERN, FERREN, and TERRY, Senior Judges.*fn1

Appellant was convicted of assault with intent to kill while armed ("AWIKWA"), aggravated assault while armed ("AAWA"), assault on a police officer with a dangerous weapon, and related weapons offenses, including three counts of possession of a firearm during a crime of violence ("PFCV").*fn2 On appeal he seeks reversal of the AWIKWA and AAWA convictions, along with their related PFCV convictions, arguing that the evidence was insufficient to support them. We affirm.


A. The Government's Evidence

At about 10:30 a.m. on December 26, 2002, Dawn Gibson, who lived in an apartment building at 5012 H Street, S.E., left her apartment to use a nearby pay telephone. She was wearing a pink ski jacket. On her way to the phone, she passed Rodney Tolbert and another man she knew only as "Bean" inside the gated area in front of the building.*fn3 When she returned a few minutes later, Bean was leaving, and Mr. Tolbert was standing inside the gate with another man whom Ms. Gibson later identified as appellant. Mr. Tolbert was backing up the front steps away from appellant and holding his empty hands in the air, repeatedly saying he did not "have anything." Appellant, however, advanced toward Mr. Tolbert with his hand in his pocket, saying, "Give me everything."

As Ms. Gibson started to walk past appellant, he said, "Move out of the way, sweetheart, I am about to blast his ass." Hearing this, Ms. Gibson ran into the building and headed upstairs to the second floor, where she stood in the hallway, next to a window above the front door. She looked out the window and saw appellant and Mr. Tolbert "tussling" at the gate, which Tolbert was trying to hold shut from the outside while appellant was attempting to open it from the inside. Appellant then pulled out a gun and shot Mr. Tolbert once. Ms. Gibson ran into her apartment, and from there she heard several more shots. When she looked out her apartment window, she saw appellant running between two apartment buildings.

By happenstance some officers from the Metropolitan Police Focus Mission Team were in the same neighborhood conducting a "buy/bust operation" directed toward illegal sales of marijuana. Two undercover officers, Mustafa Hammid and Angelo Battle, were part of the operation. Officer Battle was driving an unmarked pickup truck, and Officer Hammid was in the passenger seat. As they passed 5012 H Street, S.E., they saw a group of three or four men standing in front of the building.*fn4 Seeing nothing of concern, they drove around the block. When they returned to the same place a few minutes later, there were only two men in front of the building, appellant and Mr. Tolbert. Appellant was inside the gate, and Tolbert was standing outside.

Officer Hammid testified that the two men were having a "tug of war" with the gate, and that Tolbert was pulling on it from the outside, apparently in an effort to open it.*fn5 He did not see appellant draw a gun because he was looking the other way, but as soon as he heard shots, he looked back and saw appellant shoot Mr. Tolbert. Officer Battle also saw appellant pull a gun from his waistband and fire at Mr. Tolbert as Tolbert was walking away from the gate, and appellant was inside the gate on the landing.*fn6 Both officers then saw appellant take a few steps away from Mr. Tolbert, come back, and fire more shots.

Officer Hammid immediately got out of the truck, exclaimed "Police," and fired his gun several times in appellant's direction. None of those shots hit appellant, who then ran to the rear of the building toward Hanna Place, S.E., which runs parallel to H Street. Hammid attempted to cut him off by running toward 51st Street, while Officer Battle radioed an account of what was happening and requested help.

Four other officers involved in the buy/bust operation - Ronald Royster, Dion Smith, Peter Sheldon, and Michael Mudd - were sitting in a parked car in a nearby alley and heard the gunshots. Officer Royster, the driver, activated the car's emergency lights and pulled out into the intersection of Benning Road and H Street. From there, they saw Officer Hammid shooting toward appellant.

Officer Royster, who was familiar with the neighborhood, attempted to intercept appellant as he ran toward Hanna Place. When appellant ran in front of the officers' car with a black gun in his hand, Officers Mudd, Sheldon, and Smith got out of the car and began to chase appellant on foot. As they pursued him, Officers Mudd and Sheldon repeatedly yelled, "Stop. Police. Drop the gun."*fn7 Appellant turned, however, and pointed his gun at Officer Mudd, whereupon Mudd fired one shot toward appellant. Although the shot did not hit him, appellant stumbled, then dropped his gun*fn8 and continued to run. He was eventually stopped and arrested by Officers Smith and Mudd.

During the course of the pursuit, Officer Battle, who was also a trained emergency medical technician, stayed at the site of the shooting to assist Mr. Tolbert. The officer quickly found that Tolbert had multiple gunshot wounds to his torso and back.*fn9 He was moaning, confused, and non-responsive, and did not look directly at Officer Battle. Because Tolbert appeared to be losing consciousness, Officer Battle employed a medical technique called a "sternum rub" to keep him awake. In addition, Officer Battle determined that Mr. Tolbert was unable to push down with his right foot. Ms. Gibson, meanwhile, approached Officer Battle as he was attending to Mr. Tolbert's injuries and recounted what she had seen.

Mr. Tolbert was transported by ambulance to Washington Hospital Center, where he was treated by Dr. Dennis Wang, a trauma surgeon and the director of trauma services. Tolbert was alert and awake when he arrived at the hospital, but complained of back pain and weakness in his lower right leg. According to Dr. Wang, Mr. Tolbert was not in danger of losing consciousness on account of blood loss. He did not receive a blood transfusion; he was not placed in intensive care; he was not paralyzed; and he did not receive emergency surgery. In short, he was stable, although he did receive "emergency care." The ...

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