Appeal from the Superior Court of the District of Columbia (F-4870-01) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before RUIZ, GLICKMAN, and KRAMER, Associate Judges.
The appellant, Marquette Muschette, is challenging his convictions, following a jury trial, of second-degree murder, possession of a firearm during a crime of violence (PFCOV), and carrying a pistol without a license (CPWL). He asserts two main claims of error: (1) the trial court erred in finding that evidence of his prior bad acts was admissible and (2) the trial court erred in refusing to give the defense-of-a-third-party instruction. We affirm the appellant's convictions.
Muschette was indicted with his co-defendant Melvin Clark on charges of first-degree murder, felony murder while armed, attempted robbery while armed, CPWL and three counts of PFCOV. These charges stemmed from the July 30, 2001, shooting death of the decedent, Demetrius Cunningham, which occurred in the 2900 block of Eighth Street in the southeast quadrant of the District.
According to the government's evidence at trial, several weeks prior to the shooting, Jerome Proctor, Muschette's cousin, got into a fistfight in his neighborhood, the 2900 block of Eighth Street, Southeast, with a man named Rechard Waldo. After the fight was broken up, Proctor sought out Muschette's help in defending against Waldo.*fn1 Proctor got in his car and drove to where Muschette lived, near Park Road and Morton Street in the Northwest quadrant of the District. Proctor located Muschette, who agreed to help, and the two returned back to the area where the fight occurred. After Proctor identified Waldo, Muschette approached Waldo, pulled a gun*fn2 and warned Waldo not to mess with his family.
About a week and a half after the fight, Proctor and Waldo reconciled their differences and put an end to their conflict. Although Proctor agreed to stop feuding with Waldo and informed Muschette of this, Proctor was still angry at Waldo. As a result, Proctor informed Muschette that Waldo was a drug dealer, that he kept a lot of money on him, and that he was usually out on the street late at night. In response, Muschette allegedly told Proctor that he was "going to come around there and take [Waldo's] money."
A few weeks after Proctor and Waldo's fight, at approximately 10:30 p.m., Muschette was near Morton Street when he saw an acquaintance from the neighborhood, Robert Lewis, who gave rides in his van to people he knew in exchange for money. Muschette asked Lewis for a ride to the Southeast quadrant of the city, and Lewis agreed. Lewis had also agreed to give another person, Melvin Clark, a ride that night, and Clark was already in Lewis' van by the time Muschette got in.
Lewis drove to Martin Luther King Avenue, Southeast, and Muschette instructed him to turn off into an alley. Once there, Lewis stopped the van and Muschette and Clark exited. A few minutes thereafter, Muschette and Clark walked past Cunningham, Waldo, and Waldo's cousin, who were sitting in a car, smoking marijuana. Muschette walked up to the three men while Clark hung behind. Muschette approached Waldo's cousin first and asked if he had any marijuana to sell. He responded that he did not. Muschette then asked Cunningham and Waldo the same question, and they also said that they had no marijuana to sell. According to Waldo, after Muschette stepped away, he muttered an epithet and started shooting a gun at the men. Waldo dropped to the ground and saw Muschette and Cunningham exchanging gunfire.*fn3 After the firing ceased, Waldo discovered that Cunningham had been shot in the thigh and abdomen. Cunningham died later that night as a result of his wounds.
At trial, Muschette presented no evidence. Clark testified that he and Muschette separately asked Robert Lewis for a ride that night and that Clark wished to go to his mother's house off of Southern Avenue in Maryland. Once they had pulled into the alley at Muschette's direction, he said that he wanted Clark to meet his cousin, who allegedly lived in the neighborhood where the van was parked. Clark claimed that he was uncomfortable being in that area, so Muschette gave him one of the two guns he was carrying that evening for protection. The two men walked out of the alleyway where the van was parked and down the block, but Muschette was unable to find his cousin. On the way back to the van, Muschette stopped to purchase some marijuana. Clark testified that, at that point, he "turned to walk away . . . . [and] heard a shot. . . . [He] ducked down and turned around to see what was going on." What he saw was Waldo and Muschette exchanging fire. Clark ducked down behind a car and saw Cunningham "in the middle of the street pulling a gun out of his waist . . . . [and] [h]e started firing at [Muschette]." Moments later, Muschette turned and started running toward Clark and, as a result, Cunningham's fire became directed at Clark. When Clark saw that Cunningham "was firing towards [his] direction, [he] pulled the gun out and fired back."
Muschette and Clark ran back through the alley to the van where Lewis was waiting. Clark took his gun into the van with him, and Lewis threw it out of the driver's side window.*fn4 Muschette urged Lewis to depart quickly from the area, but they were stopped by police before Lewis could back the van out of the alleyway. Clark and Lewis exited the vehicle as they were instructed to do by a police officer, but Muschette ran from the van and fled. He was arrested several days later.
Muschette and Clark were tried together in a jury trial. At a pretrial hearing, the trial court heard argument on the government's notice to introduce evidence of Muschette's uncharged criminal conduct. The government argued that the evidence of Muschette's threats to Waldo following the fight with Proctor and his statement that he wanted to rob Waldo was necessary to provide context for the charged crimes and to disprove his self-defense claim. Defense counsel generally opposed the introduction of this evidence.*fn5 The trial court granted the government's request to admit this evidence, finding that it was relevant to meet Muschette's claim of self-defense.
The government put on several witnesses at trial, including several police officers, a medical examiner, Lewis, Proctor, and Waldo. After the government completed its case, defense counsel moved for a judgment of acquittal on all of the counts in the indictment. The trial court granted the motion with respect to the attempted robbery, ...