Appeals from the Superior Court of the District of Columbia (FEL3155-03) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and FERREN, Senior Judge.
Harry Wheeler appeals his conviction on one count each of conspiracy to commit first-degree murder while armed, D.C. Code §§ 22-1805a, -2101, -4502 (2001); first-degree murder while armed, D.C. Code §§ 22-2101, -4502 (2001); and possession of a firearm during a crime of violence, D.C. Code § 22-4504 (b) (2001). Wheeler argues that (1) there was insufficient evidence to support the convictions, (2) the trial court's jury instructions constitute reversible error, (3) the court impermissibly limited his constitutional right to confront witnesses and present a defense by restricting cross-examination and refusing to allow evidence that pointed to third-party motives for the murder, (4) the court erred in denying his motion for a mistrial, and (5) the court violated his constitutional right to confront witnesses and to present exculpatory evidence by refusing to continue the sentencing hearing and by denying his post-conviction motions. We affirm.
On April 1, 2003, an unidentified individual shot and killed Michael Taylor at the corner of 1st and R Streets, N.W., early in the evening. Police arrested appellant Wheeler two months later for murder, believing that Wheeler had "solicited and entered into an agreement with other individuals, and knowingly participated in the murder of Michael Taylor" in retaliation for Taylor's involvement in stealing money belonging to Wheeler. On February 4, 2004, a grand jury indicted Wheeler on the three charges on which he was eventually convicted.
During Wheeler's trial, witnesses discussed events after the theft leading up to Taylor's murder. According to Brittainy Johnson, the mother of Wheeler's child, Taylor had been involved in a robbery at her residence on March 31, 2003, the day before he was killed. Taylor and another individual had forcibly entered her house and stolen $17,000 that Wheeler had given her a week earlier for the care of their son. Johnson recognized Taylor, whom she had known since elementary school and regularly saw in the neighborhood.
Johnson testified that when she had told Wheeler that some men had stolen his money he was "very angry." Wheeler went to Brittainy Johnson's house and spoke with her father, police Sergeant Fred Johnson. Sergeant Johnson testified that Wheeler told him, "I'm going to do what I have to do and I'll go to jail behind this one." Brittainy Johnson told Wheeler the next day that Taylor had been one of the men who stole his money.
Chaz McCray, a friend of Wheeler's, testified that he had met with Wheeler and a number of other individuals outside of Johnson's house later on the day of the robbery. According to McCray, Wheeler was "very upset" and was "pouting, screaming his money got tooken." McCray said that Wheeler admitted he knew who had committed the robbery and screamed, "fuck, somebody [is] going to pay for this." McCray further testified that he had seen Wheeler again that night. He said that Wheeler spoke about knowing who had committed the robbery and getting "Slim" to "smash" the robber. According to McCray, "Slim" is a generic term to refer to an acquaintance, and "smash" means "get you killed, whooped, beat up, or some type of harm done to you." McCray added that Wheeler was going to get "Slim" to "smash" the robber because "Slim" would keep his mouth shut.
McCray also testified that he had seen Wheeler with another individual approximately eight times the next day, April 1. Wheeler was "still upset" about his stolen money each time McCray had seen him on the day of the murder. When McCray saw Wheeler at nightfall, however, after the murder, he was "more chilled, laid back, . . . [and] social with the crowd" and did not mention the robbery.
Anthony Babb, a close friend of Taylor's, testified that he had been with Taylor on the afternoon of the robbery and had seen Wheeler driving around Johnson's neighborhood. Wheeler called Babb and Taylor over to his truck and asked Babb if he had seen anything funny that day. According to Babb, Wheeler was "upset" and "serious" because somebody had robbed the mother of his son. Babb further testified that he had seen Wheeler again on the night of the robbery driving in Johnson's neighborhood with another individual. Wheeler called Babb over to Wheeler's truck and asked Babb again if he knew anything about the robbery. Wheeler told Babb that he had learned that one of the robbers drove a green Intrepid and said, "I know you know Mike [Taylor] got a green Intrepid." Babb thought Wheeler was "angry," but "a little sad." Despite assurances from Babb that Taylor had not been involved in the robbery, Wheeler told Babb that he was not going "to let that shit slide about his girlfriend['s] house getting robbed."
Babb also testified that in the early part of the afternoon the next day -- the day of the murder -- he had seen Wheeler again, driving in Johnson's neighborhood. Wheeler was accompanied by the same individual Babb had seen him with the previous day. (Brittainy Johnson's cousin, Theresa Johnson, similarly testified that she had seen Wheeler with another individual that same afternoon, and that Wheeler had told her Brittainy Johnson had mentioned to him that one of the robbers looked like Taylor). Babb approached Wheeler, who told Babb that people were telling him that Taylor had been one of the robbers. Wheeler said, "shit ain't looking good for your man." Babb added that he had seen Wheeler again two days after Taylor's funeral and asked him if he had had Taylor killed. Wheeler replied, "I don't know what happened to your man. Just like don't nobody know what happened to my house getting robbed."
Theodore Riley, an acquaintance of Wheeler's, testified that at some point Wheeler had approached him and was "real agitated and rushed." Wheeler told Riley, "When I find out who did it I'm going to yeah." Riley testified that he interpreted "yeah" as "smash," even though Wheeler never said "smash." Riley told Wheeler that if he needed any assistance, Wheeler should contact him. Riley acknowledged that he had made the offer so that "once [Wheeler] found out who did it if he needed any help killing the person, [Riley] was willing to assist." According to Riley, Wheeler responded, "all right," and drove off.
After Wheeler's arrest for Taylor's murder, he was incarcerated with Riley (who was serving time on an unrelated offense). Riley anticipated that Wheeler would be indicted for conspiracy to commit murder and testified that he had told Wheeler he could "beat the case" as long as the shooter did not cooperate with law enforcement. According to Riley, Wheeler replied, "I got my man. He's going to hold fast."
II. Convictions and Sentencing
As a predicate for decision, it is important to understand precisely the indictment, the trial court's instructions, the jurors' verdicts, and the court's sentences. As to the indictment, the first count charged Wheeler with "Conspiracy to Commit Murder," citing the conspiracy and first-degree murder statutes*fn1 and the provision for enhancing a sentence for an offense "when armed."*fn2 The second count charged "First Degree Murder While Armed (Premeditated),"*fn3 while the third count added "Possession of a Firearm During Crime of Violence or Dangerous Offense,"*fn4 namely, the "First Degree Murder While Armed (Premeditated)" in the second count.
The trial court instructed the jury on five separate issues related to the three counts in the indictment. First, the court instructed on the second count, "first degree murder while armed" (and on the "lesser included offense of second degree murder while armed").*fn5
Second, the court gave its "aiding and abetting" instruction,*fn6 applicable to the substantive offenses charged in the second and third counts: "murder and/or possession of a firearm during the crime of violence." Third, the court described the elements of the first count, "conspiracy to commit murder,"*fn7 described as "a separate charge from murder itself." The court did not advert to the "armed" enhancement provision specified in the indictment and in the instruction for the second count. Nor did the conspiracy instruction otherwise refer to a firearm. Fourth, the court gave the Pinkerton*fn8 instruction as to the second and third counts that Wheeler could be "found guilty of the crimes of murder and/or possession of a firearm[,] which [were] allegedly committed by a coconspirator[,] even though [Wheeler] did not participate directly in the acts constituting . . . those offenses," provided that they were "a reasonably foreseeable consequence of the conspiracy."*fn9 Finally, the trial court instructed on the "essential elements" of the third count, possession of a firearm during a crime of violence:*fn10 that "the Defendant possessed a firearm" (as defined); that he possessed it "while committing a crime of violence"; and that he possessed it "knowingly and intentionally," meaning "consciously, voluntarily and on purpose, not by mistake or accident."*fn11
In announcing their verdicts, the jurors answered "guilty" to each of the charges posed by the trial court: "conspiracy to commit murder," "first degree murder while armed," and "possessing a firearm during the crime of violence." Later, at sentencing, the court imposed a sentence of sixteen months in prison for "conspiracy to commit murder," forty-five years for "first-degree murder while armed," and five years for "possessing a firearm," all sentences to run concurrently. Thereafter, the signed sentencing order referred to convictions for "Conspiracy," "Murder I w/Armed," and "Poss. of Firearm During Comm. of Crime of Violence." The conspiracy entry in the sentencing order did not reference the "armed" enhancement provision cited in the indictment.*fn12
There was no dispute at trial that Taylor's death was caused by a firearm. Moreover, the court made clear from the outset that the murder charge concerned an armed offense; as noted above, the court initially instructed the jury on the second count, "first degree murder while armed" (emphasis added). The italicized phrase, however, did not appear again in the jury instructions, when ...