Appeal from the Superior Court of the District of Columbia (F6205-03 & F6151-03) (Hon. John H. Bayly Jr., Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued September 29, 2008
Before GLICKMAN and KRAMER, Associate Judges, and FARRELL, Senior Judge.*fn1
Appellants Akande L. Johnson and Damon Franklin were both convicted of second-degree murder while armed with a shod foot under a theory of aiding and abetting. On appeal, Johnson argues that the trial court committed reversible error by (1) giving improper jury instructions as to aiding and abetting; (2) permitting the prosecutor to ask improper questions of a witness; (3) excluding some of Johnson's expert witness's testimony; (4) refusing to sever the joint trial from that of a third co-defendant (Walter Clark, whose appeal is not before us); (5) admitting certain hearsay statements; and (6) admitting certain photographs of the decedent. Johnson further argues that (7) his conviction should be overturned because the prosecution violated his right to Brady material. Franklin adopts and elaborates on all of Johnson's arguments. We affirm.
The trial established the following facts. On the evening of July 12, 2003, appellants Johnson and Franklin, along with their friend, Walter Clark, went to a "cabaret" at a church in Southeast Washington. In addition to appellants and Clark, a friend of appellants named Darren, along with Carl Wellman (the decedent), Wendell Wray, Alisha Glover, and her cousins Adrianne Glover and Melissa Venable, attended the cabaret. Around 2:00 am on the morning of July 13, 2003, a fight broke out during which Darren received a cut on the head. After the fight, Alisha, Adrianne, Wray, and three other people left the cabaret in a car driven by Wellman. Wellman drove to the Glovers' home. During the drive home, Alisha used Adrianne's cell phone to call Clark and tell him that she was on her way home. When Wellman pulled into the Glovers' block, a number of people were standing on the corner of 10th and G streets, including appellants, Clark, and their friend Darren, whose head was still bleeding from the fight at the cabaret. Alisha and Adrianne got out of the car.
Johnson, Franklin and Clark approached the car, and Johnson began yelling at Wellman, saying that he had been told that Wellman had hit him in the back of the head during the cabaret fight. Wellman then got out of the car, while Wray stayed in the front passenger seat. Johnson continued yelling at Wellman, and Clark punched Wellman in the face. Wellman fell to the ground, and both appellants kicked and stomped Wellman about the head and body numerous times.
Both Adrianne and Alisha witnessed the assault, and Adrianne screamed for the attackers to stop. Although Clark looked up and made eye contact with her, the appellants continued kicking Wellman. Clark pulled Franklin away from Wellman and called out to Johnson to "come on." Appellants and Clark then left the scene.
The Glovers' uncle went to assist Wellman, who was now unconscious and lying in the street. He placed Wellman in the back seat of Wellman's car. Wray then drove Wellman to Howard University Hospital, where Wellman remained hospitalized until his death approximately four weeks later on August 8, 2003. An autopsy determined that Wellman had died from blunt impact head trauma.
Adrianne testified that Franklin kicked Wellman "[p]robably like 5 or 6 times," including two kicks to the head, and, after admitting that she did not know how many total kicks Johnson inflicted on Wellman, she estimated he had done so fifteen times. Both Johnson and Franklin were wearing shoes.
Both appellants argue that the court erred in giving the jury a "natural and probable consequences" instruction for aiding and abetting because our holdings in Wilson-Bey v. United States, 903 A.2d 818, 835-39 (D.C 2006) (en banc), Kitt v. United States, 904 A.2d 348, 355-56 (D.C. 2006), and Coleman v. United States, 948 A.2d 534, 552-54 (D.C. 2008), forbid the use of the "natural and probable consequences" instruction in the context of second-degree murder. Franklin separately argues that the court erred in giving the instruction for aiding and abetting without also instructing the jury that they must find that at least one of the defendants was the principal of the crime.
A. Natural and Probable Consequences
In Wilson-Bey, supra, we held that a "natural and probable consequences' instruction erroneously 'dispenses with any requirement that the accomplice be shown to have the requisite mental state for conviction of first-degree murder, including premeditation and intent to kill." Wilson-Bey, 903 A.2d at 835. In Coleman, supra, we applied Wilson-Bey's holding so as to invalidate the same instruction in a second-degree murder prosecution. Coleman, 948 A.2d at 552-53; Fortson v. United States, Nos. 06-CF-577 & 08-CO-87, slip op. at 23-24 (D.C. Sept. 3, 2009). Hence, it was error for the court to give the instruction in this case - an error to which appellants properly objected at trial. Nevertheless, reversal is not required if the error was harmless beyond a reasonable doubt. "Whether the instructional error was harmless beyond a reasonable doubt boils down to whether an impartial juror could reasonably conclude that [appellants] did not kill (or help to kill) the decedent with [malice]." Wilson-Bey, supra, 903 A.2d at 846; Forston, supra, slip op. at 24.
Here, appellants do not dispute that they kicked Wellman while he was on the ground; the only dispute is as to how many times their kicks landed on Wellman's head, if at all.*fn2 Alisha Glover, Wendall Wray, and Adrianne Glover all testified that both appellants kicked the decedent multiple times. Thus there was strong evidence - the mutually corroborating testimony of three eye witnesses - from which to infer that appellants had the requisite mens rea for second-degree murder while armed with a shod foot because they intended to kill Wellman, or intended to seriously injure him, or acted in conscious disregard of an extreme risk of death or serious bodily injury to him when they were kicking him. See Herbin v. United States, 683 A.2d 437, 443 (D.C. 1996) (setting out the elements of second-degree murder). In these circumstances, we are persuaded that there is no reasonable possibility, Chapman v. California, 386 U.S. 18, 23 (1967), that a juror relied on the crutch of the erroneous instruction to find malice on appellants' part.
Moreover, unlike Wilson-Bey, supra, the instructions here at least specified that an accomplice must know that another participant had the intent necessary for second-degree murder, see Wilson-Bey, 903 A.2d at 832-33, 833 n.28, and - again unlike in that case - the prosecutor did not argue in summation that the jury did not have to find malice as to each participant to convict of second-degree murder. Thus, ...