Appeal from the Superior Court of the District of Columbia (CF-4311-01) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and FERREN, Senior Judge.
Appellant appeals his conviction of first-degree premeditated murder and various weapons offenses for the shooting death of Devon Taylor. Appellant challenges the aiding and abetting instruction given to the jury, the admission of other crimes evidence, the court's failure to instruct the jury on the defense theory of the case, and the trial court's denial of appellant's motion for a mistrial due to improper comments during the prosecutor's closing argument. We affirm.
At trial, the government presented evidence that on February 7, 2000, appellant and Alvin Narce (who was tried separately), shot and killed Devon Taylor inside their friend Jermaine Gregory's second-floor apartment, located at 233 Florida Avenue, N.W. At the time of the murder, the three men were involved in a violent dispute with a group of young men, known as "LDP," from the Ledroit Park neighborhood. The dispute stemmed from the 1997 murder of an LDP member. The murder victim in this case, Devon Taylor, and his friend, Sean Walker, were alleged to have been involved in the 1997 murder.
Throughout the spring and summer of 1999, LDP members initiated a series of retaliatory attacks upon Jermaine Gregory, Alvin Narce, and others known to associate with Taylor. The timing of the attacks coincided with Taylor's release from custody after the 1997 murder charge was dropped. Associates of Taylor were attacked on several occasions, including one that resulted in a leg injury to Gregory that left him unable to walk without the assistance of a crutch, and, with the exception of trips to the doctor, kept him homebound. As a result, Gregory began running his drug operations out of his apartment, with frequent visits from friends and associates, including Narce and appellant.
Gregory testified that he kept several weapons in his apartment, including a "Tech 9" in his bedroom closet, and an inoperable "AR15" assault rifle in the common area. Gregory allowed appellant to keep a twelve-gauge shotgun in the closet; Narce also occasionally kept a 9mm. Smith and Wesson semi-automatic pistol at Gregory's apartment. According to Gregory, although he and Taylor remained friends after the LDP shootings, Narce and appellant objected to Taylor's "coming around" to Gregory's apartment.
On February 7, Taylor called Gregory and asked if he could come over with his friend Chris Handon later in the day. When Gregory told Narce that Taylor would be arriving, Narce said, "Good. We can get this shit -- we can talk about this shit what's going on." Gregory understood Narce to be referring to their problems with the LDP group. Sometime after 6:00 p.m., a group had gathered at Gregory's apartment, including appellant, Narce, Robert Wilson, William Sutherland, Nathaniel Smith, Daniel Bailey, Taylor, and Handon. Gregory testified that Daniel Bailey had come to buy crack from appellant. Everyone seemed to be getting along for a while, but at some point, Narce and Taylor became involved in a verbal dispute, which began when Narce confronted Taylor about when he was going to do something about LDP's attacks. Taylor responded that he would act when he got a "better gun." The two argued back and forth for a while, and the confrontation escalated. Gregory told Taylor to leave before something happened, and Taylor asked Narce if he could speak to him "outside." The two spoke outside the apartment for five to ten minutes, and when they returned, it seemed as if "everything had died down." While they were outside, Handon remarked that it was going to take Taylor being shot before he would do something, and appellant responded, "no bullshit." Tensions rose again once Taylor began to recount his conversation with Narce to Handon, causing Narce to say "it's stamped," which meant, according to Gregory, that Narce had decided to kill Taylor.
Taylor told Handon that he wanted to leave, and as they got up to do so, Narce said he would let them out. With his 9 mm. in hand, and the hammer already cocked back, Narce followed Taylor and Handon downstairs to the front door of the apartment building. Gregory testified that as the men headed down the stairs, appellant went to the closet to retrieve his shotgun and then, with shotgun in hand, followed Narce, Taylor, and Handon down the steps. When appellant reached the bottom of the steps, he said, referring to Narce, "if my dog rolling, I'm rolling." Appellant pointed his shotgun toward Handon and Taylor. The other men in Gregory's apartment stood at the top of the stairs to watch what would happen. Narce let Handon out the door, then locked it so that Taylor could not leave. Then Narce and Taylor began "tussling" with Narce's gun, and the gun went off, firing into the ceiling. Taylor ran back up the stairs, followed by Narce and appellant. Gregory headed to his bedroom, and Taylor followed him. When Gregory left the bedroom because he did not want to be shot, Taylor followed him into the living room. Narce had stayed behind Taylor with his gun pointed at Taylor, and appellant was in the living room with his shotgun. Narce began firing a series of 15-16 shots from his pistol, hitting Taylor in the legs three times, taking him down to the floor. Appellant then fired two shotgun blasts, at close range, hitting Taylor in the back. Gregory heard the blasts, turned around and saw Taylor collapsing on the floor, as appellant and Narce stood in front of Taylor with their guns.
Gregory got his Tech 9 out of the closet, put it in a laundry bag and gave it to Nathaniel Smith, along with several thousand dollars, to take the gun out of the apartment. Appellant left the apartment with the shotgun. Narce left his gun on the floor and Gregory threw it out the window into the yard of his next door neighbor's house. The rest of the men ran out the back door toward the alley and left the area. Gregory then yelled out of his window to his landlady, who was attending her first-floor grocery store, and asked her to call the police.*fn1
Two other witnesses, William Sutherland and Nathaniel Smith, testified that they saw appellant shoot Taylor with a shotgun. Another witness, Daniel Bailey, testified inconsistently about what he saw. He testified, first, that he did not see who shot Taylor; second, that when he was in the living room after the shootings, he saw appellant holding a shotgun; and finally, that he had left the apartment before the shootings.
The only defense witness, Robert Wilson, testified that he did not see who shot Taylor, but that, after the shooting, he saw William Sutherland with a shotgun in his hand. Wilson further testified that he did not see appellant with a shotgun at any time on February 7. Wilson also testified that three days after Taylor was shot, he went back to Gregory's neighborhood and heard people saying that "Meat done killed somebody." "Meat" was Gregory's nickname. A few days later, Wilson saw Sutherland and a man named Vance getting into an SUV, and he asked them to give him a ride home. Vance said he was about to take Sutherland to the Anacostia River, and Sutherland explained that he "got a body on the shotgun," and needed to get rid of the gun. Wilson understood that to mean that Sutherland had killed someone with the shotgun. Wilson did not go with them.
Also, Wilson admitted that he did not tell the grand jury what he testified to at this trial and at Narce's trial, but explained it was because he was scared of ...