Appeal from the Superior Court of the District of Columbia (FEL819-03) (Hon. Rhonda Reid Winston, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Argued September 11, 2008
Before RUIZ and REID, Associate Judges, and FARRELL,*fn1 Senior Judge.
A jury found appellant, John Tyler,*fn2 guilty of first-degree murder while armed (Stephen Turner),*fn3 assault with intent to kill while armed (Teanne Miller),*fn4 carrying a pistol without a license,*fn5 and possession of a firearm during the commission of a crime of violence.*fn6 Appellant contends that the trial court (1) violated his Sixth Amendment right to confront witnesses by admitting a 911 recording that contained testimonial hearsay; (2) erred by giving the jury a first aggressor instruction; and (3) violated his due process right to a fair trial by failing to grant his motion for a new trial based on the government's withholding of Brady*fn7 evidence. Discerning no reversible error, we affirm the judgment of the trial court.
The government presented evidence*fn8 showing that the murder of Stephen Turner and assault of Teanne Miller, on January 18, 2003, stemmed from a fist fight between Mr. Miller and appellant Tyler over drugs. The fight had occurred approximately two days earlier.
After the fight, Mr. Tyler stated to a friend, Justin Femi, that if Mr. Miller or his companion "come stepping to him . . . he will do them . . . before they do him."
The critical events leading to the murder and assault took place late on January 18, 2003, and continued through the early morning of January 19, 2003. On the night of January 18, Mr. Miller told his friends, Mr. Turner and Ricardo Jackson, about his previous altercation with Mr. Tyler. The group decided to drive Mr. Miller's Ford Probe from Bladensburg, Maryland, to Dupont Circle, in the Northwest quadrant of the District of Columbia, so that Mr. Miller could fight Mr. Tyler.*fn9 Shortly after approaching the Dupont Circle area, the three men encountered Mr. Tyler's girlfriend, Candice Pollard, and her friend, Linda Jones, sitting in a white car. Mr. Jackson remained in the Ford Probe while Mr. Miller and Mr. Turner exited and walked towards the white car. Mr. Turner approached Ms. Jones on the driver side and Mr. Miller went to Ms. Pollard on the passenger side of the car. Mr. Turner said, "we want [Ms. Pollard to get] out your car." Ms. Jones stepped out of the car and asked "for what?" Mr. Turner stated "she knows what is going on." Meanwhile, Mr. Miller knocked on the passenger side window. Ms. Pollard was talking on Ms. Jones's cell phone. She did not respond to Mr. Miller.
Ms. Jones told Mr. Turner that she "didn't want to have anything to do with it" and requested that Mr. Turner and Mr. Miller wait until Ms. Pollard got out of her car to speak with her. Mr. Turner agreed, and the two men returned to the Ford Probe. Subsequently, Ms. Jones and Ms. Pollard drove off and at some point saw Mr. Femi (Mr. Tyler's friend) walking on Connecticut Avenue. At Ms. Pollard's request, Mr. Femi got into the white car to assist in finding Mr. Tyler. The Ford Probe followed Ms. Jones's car. Moments later, Ms. Pollard alerted Ms. Jones to the Ford Probe. To evade the Ford Probe, Ms. Jones made a right turn onto a one-way street and ran into traffic at the corner of 20th and N Streets. Almost simultaneously, Ms. Pollard ended the phone call she had been making on Ms. Jones's cell phone.*fn10 Mr. Tyler appeared at the intersection; Ms. Pollard and Mr. Femi stepped out of the car to speak with him.
Meanwhile, Mr. Turner parked the Ford Probe at 20th and N Streets. Mr. Miller saw Mr. Tyler and said "[t]here he go right there." Mr. Miller exited the passenger side of the car and walked towards Mr. Tyler. Mr. Turner exited the driver side and walked in front of the car while Mr. Jackson exited the back seat of the car on the driver's side. Mr. Tyler took a few steps back, pulled a gun out of his pocket, and shot Mr. Miller twice. Mr. Miller fell to the ground.
Upon seeing a tall and short man approach, Mr. Femi started "stepping back." He heard shots, and saw Mr. Tyler fire the gun; the short man fell. Because he did not "want to get killed," Mr. Femi ran towards Dupont Circle. Mr. Turner and Mr. Jackson ran towards the rear of the Ford Probe. Mr. Turner stopped at the driver side door of the vehicle and attempted to get in, but Mr. Tyler walked over to the front of the Ford Probe and fired two shots at Mr. Turner. Mr. Jackson left the scene of the incident. Ms. Jones jumped back into the car with Ms. Pollard and the two also left the scene. Minutes later, Ms. Jones and Ms. Pollard picked up Mr. Tyler, and he instructed Ms. Jones to take him to a specified location. None of the government's witnesses who observed the incident saw a weapon in Mr. Miller's or Mr. Turner's hands.*fn11
In addition to those in the Ford Probe or the white car who testified at trial, there were other witnesses at the scene of the shooting. Joseph Cannady, a visitor from North Carolina, identified a photograph depicting the intersection of the shooting as the place where he witnessed a shooting around 12:30 a.m. on January 19, 2003. Jeremy Semple, a native Washingtonian, was in a friend's car traveling on 20th Street toward N in Northwest, when he heard a gun shot. He noticed a white car and an unarmed man "in a retreat mode" who was trying to get into a car. Another man with a gun in his hand fired and hit the retreating man. In the early morning of January 19, 2003, Jeffrey White, a visitor from California, heard gunfire while he was in the lobby of a hotel located near the scene of the crime. He walked to the crime scene, saw two shooting victims, and tried to assist them. One was not responsive. He found no weapons on either victim.
For the defense, Ms. Pollard testified that she and Mr. Tyler had agreed to meet in Dupont Circle the night of the shooting. During her first encounter with Mr. Miller and Mr. Turner that night, Mr. Turner said to her "I should bust your a**, and . . . flashed the top part of a pistol." After Mr. Miller and Mr. Turner left, she called Mr. Tyler, reported the incident, and told him to meet her "on the next street over, because the boys were up here[,] [she] didn't want . . . more drama[,]" and "they had guns." Ms. Pollard called Mr. Tyler two more times before he arrived. When Mr. Tyler arrived, Ms. Jones pulled her car over to the side of the street. Ms. Pollard got out of the car to open the back door for Mr. Tyler; Mr. Miller's car pulled up behind them.*fn12
According to Ms. Pollard, Mr. Miller got out of the car first, approached Mr. Tyler, and said "What's up?" Mr. Tyler responded, "What's up?" Mr. Turner jumped out of the car and Mr. Tyler backed up, pushed Ms. Pollard, then shot Mr. Miller and Mr. Turner, and ran away from the scene. Ms. Pollard did not see either Mr. Miller or Mr. Turner with a weapon during the encounter. Ms. Pollard and Ms. Jones picked up Mr. Tyler a couple of minutes after the shooting. Mr. Tyler seemed "nervous," was "sweating" and "shaky." Ms. Pollard asked him "why did you do that," and he responded "I didn't know if they was going to kill you. I didn't know if ...