Appeal from the Superior Court of the District of Columbia (F-2731-02) (Hon. John H. Bayly, Jr., Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before RUIZ, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
Appellant Keith Jackson argues that his conviction for manslaughter should be reversed based on what he contends was the trial court's error in denying his motion to conceal from jurors the teardrop-shaped tattoo beneath his left eye. For the reasons discussed below, we affirm the judgment of conviction.
On January 29, 2004, a jury found Jackson guilty of manslaughter (the shooting death of Clinton Hodges), possession of a firearm during a crime of violence (PFCV) (predicated on manslaughter), possession of a prohibited weapon, possession of an unregistered firearm, and unlawful possession of ammunition. The jury acquitted him on charges of first-degree murder, the lesser included offense of second-degree murder while armed, assault with a dangerous weapon (ADW, on James Hampton), a PFCV charge predicated on the ADW charge, and threats.
All of the charges arose out of incidents that occurred on May 1, 2002. The government's evidence was that on that day Jackson had sold some tires to Lorenzo Benning, who along with Hodges began changing the tires on his car in a parking lot. Jackson, Hampton and James Campbell were nearby in the parking lot area. Jackson sought assurance from Benning that he would pay the remaining amount he owed Jackson for the tires. Both Benning and Hodges, who had a tire wrench in his hand, assured Jackson that he would be paid. Jackson told Hodges to mind his own business. The two men exchanged words and Jackson then told Hodges, "I will get my gun and shoot you." Hampton tried to calm Jackson down and took him away from the immediate area. As Jackson was leaving, Campbell heard him say, "I will be back. It's not a game."
Several minutes later, Jackson returned carrying an assault rifle and, according to Campbell, aimed the gun as he walked toward the group of men. Campbell ran. Benning, under his car, saw Jackson shooting the gun from side to side. Hampton heard shots, turned, and saw Jackson shooting. After Jackson finished shooting and walked away, Hampton ran towards his girlfriend's home to call police. As Hampton was approaching his girlfriend's apartment, Jackson appeared, still holding the gun. Jackson pointed the gun at Hampton, asking him whether he was going to "snitch." Hampton backed into his girlfriend's apartment and slammed the door.
When police arrived, Benning identified Jackson as the shooter. Police found a duffle bag containing the murder weapon in Jackson's girlfriend's apartment. At the crime scene police recovered seven cartridge cases shot from Jackson's assault rifle. The medical examiner testified that Hodges was shot in the head at close range and was shot twice in the back.
Jackson took the stand in his own defense. He testified that while he and Hodges were arguing, Hodges (who in the past had robbed Jackson of his boots and pulled weapons on him) "bucked" as if he were going to hit Jackson with the tire wrench that he was holding. When Hampton pulled Jackson away from the argument, Hampton offered to buy back a gun that he had previously sold to Jackson. Jackson went to his nearby apartment to retrieve the gun. He covered the gun with his jacket and walked back toward the parking lot. As he aproached, Hodges threatened him and swung the tire wrench at him. Jackson testified that he started shooting "out of fear and shock," and then ran away, scared and nervous "because I just shot someone and I never shot anyone." Jackson saw Hampton near Hampton's girlfriend's apartment and tried to give him the gun, but Hampton told him to "get away."
II. The Ruling at Issue and Trial References to the Tattoo
On January 14, 2004, prior to jury selection, Jackson's counsel asked the court to permit the defense to apply cover-up makeup to Jackson's face to conceal his teardrop-shaped tattoo. Counsel explained to the court that "[i]n some circles, the presence of a teardrop tattoo means that the person wearing it has killed somebody. That is sort of gang understanding from the West Coast, and many people in the community are aware of that interpretation." He argued that the tattoo "pretty much amounts to testimony or to Drew*fn1 provided by my client that he has killed somebody, in the mind[s] of other people." Counsel acknowledged that "the other reason people wear teardrop tattoos is to mourn the loss of a loved one," but argued that "for those jurors who think that the presence of a teardrop tattoo is emblematic of having committed a homicide in the past, it's devastating." Counsel also reminded the court that the defense would be "proceeding on a self-defense theory" and had "conceded this is not a Winfield*fn2 case. So we're not going to say somebody other than Mr. Jackson" did it.
The prosecutor objected to Jackson's request to cover up his tattoo, stating that the tattoo "may form the basis of identification during the course of trial" and would likely be "significant for identification purposes." The prosecutor argued that the tattoo did "not constitute Drew evidence, evidence of other crimes," and that concealing the tattoo would amount to "impermissibly altering [Jackson's] appearance." Defense counsel responded that the government had asserted that its witnesses "have known Mr. Jackson for five years and up" and that the presence or absence of a tattoo would not make any difference to their ability to identify him. The prosecutor disputed the point, telling the court that "[u]nfortunately, defense counsel doesn't know our Government witnesses, and we know that that will be an issue." The prosecutor also argued that "we have no idea of knowing what jurors know [or] don't know" in relation to the tattoo's significance.
The trial judge reasoned that "it's dangerous for a defendant purposely to alter his appearance for any reason during trial unless there's a very good reason." The judge then stated that he did not see the tattoo as Drew evidence, but that defense counsel had stated a reason that was in "some respects compelling." The judge considered permitting Jackson to conceal the tattoo at the outset of trial and reserving a final ruling on Jackson's motion, waiting to see "as the case goes on [whether] some significance is attached to [Jackson's] appearance", but reasoned that what would be worst for Jackson ...