Appeals from the Superior Court of the District of Columbia (F5243-00 & F5460-00) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Schwelb, Senior Judge
Before FARRELL andRUIZ, Associate Judges, and SCHWELB, Senior Judge.
Patrick F. Andrews and Randall C. Mack were both convicted by a jury of first-degree premeditated murder while armed,*fn1 possession of a firearm during the commission of a crime of violence (PFCV),*fn2 and two counts each of three weapons offenses: carrying a pistol without a license (CPWOL),*fn3 possession of an unregistered firearm (UF),*fn4 and possession of ammunition for an unregistered firearm (UA).*fn5 The charges against the two men arose from the shooting death of Deyon Rivers on July 7, 2000. On appeal, Andrews contends that the trial judge erred in denying his motion to suppress a loaded pistol recovered from an automobile allegedly owned by Andrews; that the evidence was insufficient as a matter of law to establish that he constructively possessed the pistol and ammunition at the time of their recovery by the police; and that his convictions for CPWOL, UF, and UA violate his individual right to bear arms, which right, he asserts, is protected by the Second Amendment. We are unpersuaded by these contentions and affirm all of Andrews' convictions.
Mack's sole contention on appeal is that the trial judge erred by admitting into evidence inculpatory parts of his statement to the police (in which Mack admitted that he possessed one of the loaded murder weapons on the day of his arrest, July 21, 2000), but excluding the exculpatory portion (in which Mack claimed that he had not received the pistol until two or three days before his arrest, and in which he thus denied that he possessed the weapon on July 7, 2000, the date of the decedent's murder). Mack contends that the exclusion of the portion of the statement which explained his possession of the murder weapon two weeks after the commission of the crime violated the "rule of completeness." See, e.g., Henderson v. United States, 632 A.2d 419, 424 (D.C. 1993); Reams v. United States, 895 A.2d 914, 918-19 (D.C. 2006); Cox v. United States, 898 A.2d 376, 381-82 (D.C. 2006). The government acknowledges that the exclusion of the exculpatory portion was erroneous and contrary to our decisions in Henderson, Reams, and Cox, but it contends that the error was harmless. We conclude that the error was prejudicial, and we therefore reverse Mack's convictions for armed premeditated murder, PFCV, and the weapons offenses alleged to have been committed on July 7, 2000. We affirm Mack's convictions for the weapons offenses committed on July 21, 2000.
A. The murder of Deyon Rivers
The prosecution's theory at trial was that Andrews and Mack shot and killed the decedent, Deyon Rivers, in Rivers' car near the corner of 18th and C Streets, N.E. at approximately 2:25 a.m. on July 7, 2000. The shooting occurred in the wake of an altercation on the previous day between Rivers and David Braddy, who was a friend of both Andrews and Mack. Braddy had complained to Andrews and Mack that Rivers, who did not live in the neighborhood, but who was apparently keeping company with a young woman who did, had shot "bottle rockets,"*fn6 one of which had almost hit Braddy's girlfriend. Braddy was angry about the incident,*fn7 but his girlfriend told him to "leave it alone," and the altercation ended without immediate violence.
At the time of the confrontation between Rivers and Braddy, the latter was in the company of Morris Jones, then fifteen years old. Jones, who suffered from a learning disability as well as low intellectual functioning and substance abuse, was a principal prosecution witness at the trial. He testified that at the time of the murder, he was on a "home visit" from a Pennsylvania institution for juvenile delinquents to which he had been committed following his involvement in several armed robberies. According to Jones, he and Braddy spoke with Andrews and Mack shortly after Braddy's encounter with Rivers, and Braddy told the two defendants what had occurred. Jones did not assert, however, that Braddy asked Andrews or Mack to harm Rivers.
Later in the evening, well after midnight, Jones and Braddy were sitting on the porch of Braddy's home, drinking and smoking marijuana. Jones acknowledged that while the two young men were engaged in this activity, he had consumed four or five cups of liquor and had shared a "dime bag" of marijuana with Braddy. According to Jones, Braddy received a telephone call and went into the house, leaving Jones alone on the porch. After Braddy's departure, Jones saw a car pull up to the corner of 18th and C Streets. He recognized the driver as the individual who had fired the "bottle rocket" near Braddy's girlfriend. At this point, according to Jones, Andrews and Mack, each of whom he knew well, came out of an alley and fired handguns multiple times into the vehicle. Jones further testified that he and Braddy encountered Andrews on the following day and inquired about the events of the previous night. Andrews told them that he had seen "a suspicious car coming down the street," that he had become "paranoid or something like that," and that he had shot at the car.
Jones did not report the shooting to the police, but investigating officers apparently learned that he may have been a witness. On August 22, 2000, while Jones was on another "home visit" from the juvenile institution in Pennsylvania, the police brought him to the United States Attorney's Office for questioning. By this time, Andrews and Mack were the prime suspects, for the police had recovered the two pistols with which the decedent had been shot to death, and each weapon had been in the possession of one of the two defendants. Jones initially told the police that he knew nothing about the shooting, but after being questioned for approximately three hours, Jones identified Andrews and Mack as the shooters. He was immediately taken before the grand jury, where he repeated his identification of the defendants.
A second prosecution witness, Courtney Burley, was also a juvenile with a history of delinquency. Burley testified that on the night of the shooting, he saw Mack in a concealed position in an alley near 23rd and C Streets, N.E. Burley approached Mack, who told him that it was "about to get hot out there" because of "some gangster shit." Despite this warning of impending violence and danger, and although he lived only a short distance away, Burley called his brother to come and pick him up. His brother arrived approximately fifteen minutes later, and as they drove away, Burley heard the sound of shooting.
On the following day, Burley encountered Mack again in front of a store. In response to Burley's inquiry regarding what had occurred the previous night, Mack allegedly stated that he had been "shooting." Burley provided this information to the police on August 12, 2000, after he had been arrested on a custody order for violation of the conditions of his probation. He originally denied, but subsequently admitted, that he hoped to receive lenient treatment in return for his cooperation. Burley was also impeached, inter alia, with statements he made to the police to the effect that the fireworks incident occurred several days before the shooting.
Andrews presented alibi evidence, principally from his former girlfriend.*fn8 Mack presented the testimony of James Braddy, David Braddy's father. According to James Braddy, he, his wife, and his son were inside the house watching television for a "couple of hours" prior to the shooting. When he heard shots, James Braddy went to the porch to investigate, and Morris Jones was not there. Indeed, Mr. Braddy had not seen Jones anywhere, either that night or on the previous day. Mr. Braddy confirmed that his son had been involved in an incident relating to fireworks.
B. The recovery of the Glock 17 from Andrews' Cadillac
On July 21, 2000, at approximately 11:00 a.m., Officer Michael Dean of the Metropolitan Police Department observed an unoccupied burgundy-colored Cadillac in the 300 block of 17th Place, N.E., with an expired rear paper license tag. There was no corresponding license tag on the front of the car, but a crumpled paper tag was inside the vehicle, near the right side of the windshield. Officer Dean opened the door of the Cadillac, (which, remarkably, was unlocked) for the purpose, inter alia, of checking the tag against the VIN number. Inside the vehicle, he observed, in plain view, a black ammunition magazine protruding beneath the driver's seat. Dean called for Crime Scene Search Officers, and police subsequently recovered a Glock 17 semi-automatic pistol loaded with a single round of ammunition, as well as a clip containing 26 rounds.
Inside the car, the police found a number of items linking it to Andrews. These items included (1) a vial of prescription medicine in Andrews' name; (2) an envelope addressed to Andrews; (3) several traffic citations for moving violations, all issued to Andrews; and (4) an empty bottle of Vodka with Andrews' right palm print on it. The registration was in the name of Deon Long. Ms. Long, who was the girlfriend of a friend of Andrews, testified at the trial that in June of 2000, Andrews had asked her to "sign for" a loan for a car that Andrews wanted to buy. Andrews promised to make the monthly payments. Ms. Long signed the paperwork, and Andrews took possession of the vehicle.
An MPD firearms examiner testified that fourteen of the sixteen cartridges recovered near the decedent's body on June 7, 2000, were fired from the Glock 17 pistol recovered from the burgundy-colored Cadillac.
C. The recovery of the Bryco possessed by Mack
On July 21, 2000 - the date on which the Glock 17 was recovered from Andrews' Cadillac - officers were in the area of 18th and D Streets, N.E., investigating the murder of Deyon Rivers and interviewing potential witnesses. Detective Michael Irving saw a man, later identified as appellant Randall C. Mack, who "looked like the individual we were looking for."*fn9 Irving directed Mack, who appeared to be reaching for a pistol in his waistband, to "stop for a second." Instead of stopping, however, Mack ran away. Irving and other officers pursued Mack, and they found him hiding behind a large trash can. Along the path of Mack's flight, the officers recovered a Bryco semi-automatic pistol. The MPD ballistics expert testified that two of the sixteen cartridges recovered from the scene of the murder were fired from the Bryco pistol which Mack had dropped while fleeing from the police.
Following his apprehension, Mack gave the police a 38-page statement in which he admitted that he was in possession of the Bryco pistol but denied any involvement in the murder. Mack told the officers that he had received the pistol from Andrews two or three days before he (Mack) was apprehended by the police. The government sought to introduce into evidence only that portion of the statement in which Mack admitted his possession of the Bryco on July 21, 2000. Mack's attorney contended that, under the rule of completeness, the jury should also learn of Mack's claim that he had possessed the pistol only for a couple of days. The trial judge agreed with the prosecution.
The portion of Mack's statement which the trial judge admitted into evidence reads, in pertinent part, as follows:
Detective Owens: Okay. Now let's talk about what happened today, okay, around 18th and D. Do you remember?
Owens: Okay, now, the police were in the area and then you had come to the corner of 18th and D?
Owens: You know, wearing the same clothing you're wearing now. And tell us ...