Appeal from the Superior Court of the District of Columbia (FEL 4554-02) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
Appellant, Donte J. Kidd, challenges his conviction on the charge of first-degree premeditated murder while armed.*fn1 He mainly contends that the trial court's erroneous aiding and abetting jury instruction violated his constitutional due process right, because under our decision in Wilson-Bey v. United States, 903 A.2d 818 (D.C. 2006) (en banc),*fn2 and other cases, the trial court failed to properly instruct the jury on the mens rea element of the murder charge; that is, the government must prove premeditation, deliberation, and the specific intent to kill in an aiding and abetting case. He further argues that the trial court's error constituted a structural defect requiring reversal of his conviction because the error was not harmless beyond a reasonable doubt. We hold that although the trial court's aiding and abetting jury instruction was clearly constitutionally erroneous under Wilson-Bey,*fn3 the error was not structural; and since Mr. Kidd did not object to the instruction, the plain error standard of review applies. We affirm the judgment of the trial court.
The government presented evidence showing that on June 29, 2002, around 3:30 a.m., DeWayne Weaver was shot and killed in the 1400 block of Canal Street, in the Southwest quadrant of the District, near P Street and Fort McNair. Three eyewitnesses gave testimony at trial in behalf of the government. Rebecca Lindsay, who resided in the area of the shooting, was playing in the courtyard of the Canal Street apartment complexes*fn4 with her younger brother, Robert Lindsay. As the siblings bounced a basketball back and forth, the ball at one time veered toward Mr. Weaver. Mr. Weaver retrieved the basketball, returned it to Robert, and walked toward a clothesline pole. When Mr. Weaver was approximately twenty feet away from Ms. Lindsay, she saw Mr. Kidd emerge from a "cut" or alleyway. She knew Mr. Kidd because she had dated his brother. Nothing obstructed Ms. Lindsay's view. As Mr. Kidd emerged from the cut, he had a black gun in his hand. Mr. Weaver held his hands out and said, "What? You can't take a as* whipping?" Ms. Lindsay also saw a second man come out of the alleyway with a gun. Mr. Kidd stood on one side of Mr. Weaver and the second man on the other side; Mr. Kidd pointed his gun to Mr. Weaver's side. Ms. Lindsay watched as a third man arrived with a gun and walking fast, stood behind Mr. Weaver, pointed the gun close to the back of his head and shot him. Ms. Lindsay heard two shots. Mr. Weaver fell to the ground; the shooter ran away. Ms. Lindsay "hesitated," and ran into an apartment building (1414), but she went out again to get her brother. They went into the building. Ms. Lindsay heard several more shots, and after a "couple of seconds," she went outside again. She noticed that Mr. Weaver was dead, and that another person (Irving Winslow) had been shot, but she did not see that shooting. Because of her fear, Ms. Lindsay did not speak to the police until July 6, 2002, but she did tell Alicia Hawkins and Sharice Foxx on June 29, 2002, that she saw the shooting. She also reported to them that Mr. Kidd was at the scene of the shooting and had a gun. While speaking with the police on July 6, Ms. Lindsay identified Mr. Kidd as one of the individuals who pointed a gun at Mr. Weaver.
Robert Lindsay testified that Mr. Kidd was a friend, and that he knew Mr. Weaver through Mr. Weaver's brother. Mr. Weaver and Mr. Kidd did not get along. He had seen them fight and argue. On June 29, around 3:30 a.m., he was playing basketball with his sister, shooting the ball against the numbers on the apartment building. After Mr. Weaver returned the basketball to him when he lost control of it, Mr. Lindsay saw him walk over to a clothesline pole, and observed Mr. Kidd and someone else walk toward him. Mr. Kidd had a gun which he pointed toward Mr. Weaver's "lower stomach." The second person held a gun to Mr. Weaver's head. Mr. Weaver "mentioned something earlier about a fight," saying: "You can't take an as* whipping." Mr. Weaver did not have a gun in his hand. A third man "came out of the cut, [and] shot Mr. Weaver in the back of his head." Mr. Weaver "went limp." Mr. Lindsay was about fifteen feet away and had an unobstructed view of the shooting. His sister ran into the apartment building, but he "[s]tood there because [he] was shocked." Mr. Kidd and the second man ran. "The third individual picked up some silver things off the ground," and ran. Mr. Lindsay heard "multiple" shots as the perpetrators ran away. His sister came back, "grabbed" him, and they returned to the apartment. When he emerged from the apartment building, he saw Mr. Weaver on the ground. He also observed that Mr. Winslow had been shot in the leg. Mr. Lindsay did not speak with the police on June 29, 2002, but he spoke with a detective on February 13, 2003. He identified Mr. Kidd as one of the persons who held a gun to Mr. Weaver.
At the time of the shooting, Alicia Hawkins, who also lived in the neighborhood, was drinking beer with her friend Sharice Foxx, Irving Winslow, and others on the porch at the 1420 apartment building. She had consumed about four beers. When she left the porch to return to her apartment, located in the 1414 building, she saw Mr. Kidd and another man around Mr. Weaver. She noticed that Rebecca and Robert Lindsay also were in the courtyard. Ms. Hawkins knew Mr. Kidd and had been "intimate" with him "a few times." She also knew Mr. Weaver and the Lindsays. Mr. Kidd had "his arm out," but she could not see what was in his hand. Another man "[c]ame from 'round the corner, stuck his arm out, and [Mr.] Weaver fell." The man's arm had been pointing "from [Mr. Weaver's] head to [his] neck," and Ms. Hawkins had heard "about two" shots. Mr. Kidd and the other men "took off" after Mr. Weaver fell. Ms. Hawkins went back toward the porch on which she had been sitting and went into the building. She heard more shots, around two or three. Seconds later, she left the building and went to Mr. Weaver to see "where he had been shot at." She held his hand and was crying; there was no response from him. Soon she heard Irving Winslow "screaming" and walked across the street. Mr. Winslow had been shot "[i]n the legs." Ms. Hawkins went into the 1414 building and saw Rebecca and Robert Lindsay. Rebecca described what she had witnessed.
The prosecutor brought out on direct examination of Ms. Hawkins that she had lied to certain law enforcement officials about details she had not seen. Because she was "angry and upset," Ms. Hawkins went to Fort McNair and told a police officer that "Donte [Kidd] and his friends shot [Mr.] Weaver and shot [Mr.] Winslow." Although she did not see a gun in Mr. Kidd's hand, Ms. Hawkins reported that he had a gun when Mr. Weaver was shot, and she lied to the police about seeing Mr. Winslow shot. When Ms. Hawkins spoke with a police detective later that evening, she also lied about seeing both Mr. Kidd and the shooter with a gun. She said she was upset and repeated details mentioned by Ms. Lindsay. When defense investigators interviewed her, Ms. Hawkins said Mr. Kidd was dead, which was not true. However, Ms. Hawkins stated when she appeared before the grand jury, she only recounted what she actually had seen.
Sharice Foxx, who lived in the Southwest neighborhood, was drinking beer (and also a small cup of Hennessy) and sitting on the porch of the 1420 apartment building with Ms. Hawkins, Mr. Winslow, and others on the early morning of Mr. Weaver's murder. Ms. Foxx's best friend was Mr. Weaver's brother. She confirmed that Ms. Hawkins had left the porch that morning to go to the bathroom. Mr. Winslow received a telephone call and left the porch. As she was walking through the courtyard, Ms. Foxx heard two shots, followed by a "pause." She was "stunned." Ms. Hawkins returned and "pulled" her into the 1420 building. Ms. Foxx ran to the second floor and got down on the ground. She heard five more shots, but did not see the shooting. After the shots stopped, she looked out of the window and saw Mr. Winslow on the ground. When she heard Ms. Hawkins scream, "They shot Weaver," she went outside and over to Weaver who was on the ground, on his back, with blood coming from his head. She took his hand and asked him to squeeze her hand, but there was no response. She spoke with Rebecca Lindsay a little bit later, and Ms. Lindsay described what she had seen. Ms. Foxx recounted the details in court that Ms. Lindsay had given her.
Dr. Gertrude Juste, a District of Columbia medical examiner, performed an autopsy on Mr. Weaver's body. She explained that he died from "a gunshot wound to the head which perforated [his] brain." The wound was located "at the base of [his] skull." She recovered several bullet fragments from his head.
Detective Jeffrey Owens of the Metropolitan Police Department ("MPD"), the lead investigator assigned to Mr. Weaver's murder, informed the jury that he located three witnesses to the shooting -- Rebecca and Robert Lindsay and Ms. Hawkins. All three implicated Mr. Kidd as involved in the shooting. In addition to investigating Mr. Weaver's murder, Detective Owens was assigned to the shooting of Mr. Winslow. He interviewed Mr. Winslow's mother, who said Carlton Edwards shot her son. Detective Owens was unable to link Mr. Edwards to Mr. Winslow's shooting; Mr. Winslow refused to cooperate with the investigation. Detective Owens arrested Mr. Kidd in Southeast Washington on July 16, 2002, and spoke with him.*fn5 Mr. Kidd maintained that he was home in bed at the time of the Weaver shooting. But, he stated that he and Mr. Weaver had been "beefing" because Mr. Weaver had shot paint balls all over his blue Impala automobile. Detective Owens, MPD Investigator Kevin McConnell, and MPD Officer Dwayne Mitchell were part of a team which executed a search warrant at Mr. Kidd's Naylor Road Southeast residence on July 16, 2002. Investigator McConnell discovered a Brinks' home security black metal box in a trash can in the kitchen. The name "Tay" [Mr. Kidd's nickname] was "scraped into the top [of the box]." Officer Mitchell opened the black box and found inside Mr. Kidd's social security and health cards, a District of Columbia identification card bearing Mr. Kidd's name, and a loaded semiautomatic .45 caliber Colt pistol.*fn6
At the time of Mr. Weaver's murder, defense witness, Sergeant Anthony Weeda, was a military policeman stationed at Fort McNair, on guard in the guard's shack at the P Street gate.*fn7 He heard gunfire and screaming coming from apartments at P and Canal Streets on the early morning of June 29, 2002. He noticed a "[l]ot of people . . . exiting, running from the courtyard screaming"; and one individual was "kind of running backwards," but he was unable to see the individual's face. He saw "muzzle flashes [from the barrel of a gun] pointing into [the] courtyard along with the gunfire." Sergeant Weeda crouched down, but soon got up and went to the corner of P Street and Canal. There, he saw the same individual he had observed running backwards. The man was "running down Canal Street towards M Street," but Sergeant Weeda did not see a gun or the person's face. When he crouched down in front of a car, he heard "some ladies crying" and saw Mr. Winslow on the ground.
Primarily through the testimony of Mr. Winslow's mother, the defense sought to show that Mr. Kidd was not involved in the shooting of Mr. Winslow. Mr. Winslow's mother was awakened in the early morning on June 29, 2002, by the sound of gunfire -- two shots. After hearing more shots, she went to the window of her bedroom. She saw a man whom she had known for several years, Carlton, shoot ...