Appeals from the Superior Court of the District of Columbia (F-12246-94 & F-12247-94) (Hon. Colleen Kollar-Kotelly, Trial Judge) (Hon. Russell F. Canan, Motions Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before FARRELL and RUIZ, Associate Judges, and TERRY, Senior Judge. *fn2
Appellants Rodney Brown and Leonard Bishop appeal their convictions arising from a shooting which resulted in the death of Andre Newton and injuries to Carrington Harley, Keith Williams, Michael Toland and Joey Payne. Each appellant was convicted of one count of first-degree murder while armed, four counts of assault with intent to kill while armed (AWIKWA), one count of mayhem while armed, five counts of possession of a firearm during a crime of violence (PFCV), and one count of carrying a pistol without a license. Both appellants contend that the trial court abused its discretion by failing to balance their Sixth Amendment right to present a defense when it upheld the Fifth Amendment privilege against self-incrimination of a proffered defense witness, by failing to grant a mistrial after the jury twice announced its inability to render a verdict and the judge gave an anti-deadlock instruction, and by admitting a redacted version of appellant Brown's out-of-court admission rather than severing their trials. Appellant Bishop also argues that the trial court committed reversible error in (1) denying his motion for judgment of acquittal as to the charges of mayhem while armed and assault with intent to kill, (2) allowing the jury to hear evidence of appellant's drug possession prior to the shooting, (3) instructing the jury on aiding and abetting, and (4) denying his motion claiming ineffective assistance of counsel. We affirm.
The convictions in this case arose from a shooting that took place on November 25, 1994, in the 600 block of 46th Place, S.E., in Washington, D.C. (in an area known as "Simple City").
Andre Newton and Carrington Harley were close friends. Harley testified that in the summer of 1994, his friend Newton began to change, when Newton started selling drugs for Roy Tolbert. On November 25, 1994, Newton asked Harley to accompany him to a shopping mall, but instead of going to the mall, they drove to Tolbert's apartment in Maryland. While in the apartment, Newton told Tolbert that he did not "want to go up there by [him]self," and Tolbert gestured toward Harley saying, "He'll go with you." Tolbert then took Newton and Harley to 600 block of 46th Place, S.E., with two bags of drugs and two guns. When they arrived, Newton placed one of the bags near a trash can and the other one by an apartment building.
Three people approached Newton and asked him about Tolbert. Two of them bought what appeared to be marijuana from Newton. When another man drove up and announced that the police were nearby, Newton handed Harley his gun and Harley stashed the guns (the guns that Tolbert had given to him and Newton) behind a wall. They then began to walk away from the stash.
Keith Williams testified that he was friends with appellants Brown and Bishop from June 1989 until his incarceration in 1992, and then again after his release in 1994. He testified that on November 25, 1994, he went to Alabama Avenue after work to meet with two friends. His friends, however, were not there, so he went to 46th Place, S.E., where he met with Joey Payne, Michael Toland and "Deion." Williams testified that he saw appellants Bishop and Brown with drugs on the hood of appellant Brown's car, while Andre Newton and Carrington Harley stood nearby. Appellants then moved Brown's car, and, at Toland's behest, Deion moved his van which was parked nearby. Joey Payne insisted that they leave immediately and he, Williams, and Toland began walking towards Payne's car. According to Williams, as the group walked to the car, he turned to watch Newton and Harley, who were walking behind them. Williams also saw appellants run through a "cut" near the parking lot and begin shooting at Newton and Harley. Williams testified that appellant Bishop fired first with what appeared to be a .44 magnum revolver with a long barrel, with a booming noise. Brown's gun, which was not as loud, fired rapidly. Harley testified that at that point he and Newton began to run, with appellants pursuing them. Harley was hit in the chest and fell.
James Jones lived in an apartment at 620 46th Place, S.E. He testified that on November 25, 1994, at approximately 5:20 p.m., he and his wife were returning home, and as he parked his truck, he heard gunshots and saw appellant Brown standing in the parking area firing a pistol. He saw a man fall to the ground and then saw appellant Brown walk over to the man and fire several more shots into his body. Jones testified that he had known Brown for seven or eight years and identified him in court. Jones stated that he saw another man with Brown but could not identify him.
Carol Jeffries also lived in an apartment on the 600 block of 46th Place, S.E. Jeffries testified that she knew appellants from the neighborhood and identified them in court. She described how, immediately after she heard gunfire on November 25, 1994, appellants ran into her apartment. Brown was "very emotional, very nervous"; he hid a "square gun with a clip" under her sofa, and quickly left by jumping off her balcony. Bishop, who stood still and looked "shocked," ran out the front door. Jeffries further testified that several days after the shooting, she overheard appellant Brown say to a group (that did not include appellant Bishop): "Man, I punished them niggers, coming on my turf." (This statement had been redacted to eliminate a possible reference to appellant Bishop).
Forensic evidence included medical testimony and records of injuries to Harley's hip, stomach, prostate, rectum, groin and urethra. A bullet found in the sole of his boot months after the shooting was consistent with bullets used in a .44 magnum revolver. Newton, who died from multiple gunshot wounds, had been shot in the back of the leg (consistent with his having been running away from the shooters) and had a contact wound in the front of the neck (consistent with having been shot with the muzzle of the gun touching him).
A. Defense Witness's Fifth Amendment Privilege
Appellants argue that the trial court violated their Sixth Amendment right to present a defense when it upheld a defense witness's Fifth Amendment privilege against self-incrimination. One of appellants' theories proposed at trial was that someone else had shot and killed Newton and injured the others, in retaliation for a previous shooting. According to the defense theory, Roy Tolbert had shot at a car with two people from a rival group, known as the Alabama Avenue Crew, six weeks prior to the shooting in this case. In support of their theory, appellants proffered that Michael Raymond would testify that in the fall of 1994, he was riding in a car with two members of the Alabama Avenue Crew when Tolbert shot at them. Appellants asserted that Raymond and his fellow passengers would have been aware of the well-known association in the drug trade between Newton and Tolbert, leading members of the Alabama Avenue Crew to shoot Newton to get even. At trial Raymond asserted his Fifth Amendment privilege, stating that he had a pending case involving drug distribution and that he also was an identified target of an ongoing federal investigation involving the Alabama Avenue Crew, the Simple City Crew and related drug activity in the area. Raymond argued that the testimony appellants wanted to elicit from him would link him to people and places that could incriminate him in aspects of the government's ongoing investigation. Before trial, the court recognized the relevance and importance of the proffered testimony, see Winfield v. United States, 676 A.2d 1 (D.C. 1996), but it disallowed any questioning of Raymond as violative of his Fifth ...