Appeal from the Superior Court of the District of Columbia (F 6533-04) (Hon. Harold L. Cushenberry, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before KRAMER, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.
Opinion for the court by Associate Judge KRAMER.
Opinion by Associate Judge BLACKBURNE-RIGSBY, concurring in part and dissenting in part, at page 12.
Appellant Darryl Hunter was charged by indictment with eight counts stemming from a shooting following a dispute with his estranged wife and his subsequent assaults of her mother and sister.*fn1 Hunter was acquitted of assault with a deadly weapon (ADW), carrying a pistol without a license (CPWL), and one count of simple assault, but was convicted of possession of an unregistered firearm (UF), unlawful possession of ammunition (UA), two counts of threatening to injure a person (felony threats), and one count of simple assault. Hunter appeals all of his convictions except the one count of simple assault. Specifically, Hunter argues that the trial court erred in excluding evidence of a third party's convictions for armed drug trafficking - evidence Hunter characterizes as "reverse-Drew or Winfield evidence" - and that the felony threat counts merge into one offense under the Double Jeopardy Clause. We affirm.
The events of October 6, 2004, accounted for four of the charges brought against Hunter - ADW, CPWL, UF, and UA. As noted above, Hunter was acquitted of the ADW and CPWL charges, but convicted of the UF and UA charges.
The government's evidence with respect to October 6, 2004,came in primarily through LaTonya Parker, Hunter's sister-in-law. LaTonya testified that on October 6 she was driving her minivan with her toddler and her sister Lynette as passengers when she saw Hunter, Lynette's estranged husband, with his new girlfriend, Juanitra Cashwell, in Ms. Cashwell's car. Lynette directed LaTonya to drive up next to Cashwell's car and Lynette and Hunter got out of their respective vehicles and talked in the middle of the street. Lynette asked him for the remote control to the apartment complex where they had lived and the keys to the apartment they shared. Hunter gave her the remote control, but kept the keys. Hunter and Cashwell then drove away, as did LaTonya and Lynette. Shortly thereafter, however, Cashwell pulled over and Lynette told LaTonya that she thought Hunter had something to say, so LaTonya pulled over also and double-parked beside Cashwell. Hunter jumped out of Cashwell's car, walked into the middle of the street, lifted up his shirt to display a handgun in his waistband, then walked behind the van that LaTonya was driving, pointed the gun and fired one shot.LaTonya was able to see that the weapon was "silver and black." She testified to seeing smoke come out of the barrel when Hunter raised the gun and fired at the back of the van, but the van was not hit.
The sisters immediately went home and told their mother, Annie Mae Parker, what had happened. Their mother called 911. When the police responded, both sisters reported the events to them.The police found no damage to the van, however, nor could they locate a spent cartridge at the scene of the shooting, but as Officer Meyers testified, an "expended shell would only be approximately . . . a half inch or just more than a half inch long," and the area where the police were searching was illuminated solely by street lights.
One week after the October 6 incident, Hunter went to retrieve his belongings from the apartment he shared with Lynette only to find that the locks had been changed. Hunter then went to Annie Mae Parker's home and began pounding on the door. Annie Mae let him in, and he began "screaming and hollering obscenities." LaTonya Parker testified that Hunter shouted, "I will bust you in your face. I will blow your f**king head off," toward Annie Mae. Annie Mae testified that she believed Hunter was going to hit her. Hunter then began arguing with LaTonya. He struck her in the face and began to leave the premises. Annie Mae testified that he said, "I'm going home get my sh*t, and when I come back, I'm blowing somebody away." LaTonya testified that he said, "I'm going to kill all of you mother f**kers." On cross-examination, LaTonya testified that he "threatened to kill me, my mother, and my children."
Lynette, however, recanted at trial what she had told the police on October 6, as well as her grand jury testimony, both of which had corresponded with LaTonya's version, and testified that because she was angry to see Hunter with Cashwell, she had made up the entire shooting incident. She also testified that she had known there was a silver and black gun in Cashwell's apartment because Cashwell had shown it to her at a time preceding the events of October 6, and that had provided the basis for the description of the gun that she gave to the police.
Cashwell, who was also called as a witness by the government, testified that Hunter had kept his belongings in her hall closet (as well as in her living room). The government showed her a picture of a gun that had been found in a makeup case in that closet during a search warrant executed at her apartment. She testified that Hunter had been in her apartment earlier on the day the police executed the warrant. On cross-examination, the defense brought out that Willie Mouling, Cashwell's former boyfriend, had been living in her apartment until he was arrested and incarcerated in March 2004 (about eight months before the events at issue here), and that his belongings had been left there in the same closet. The gun that was recovered was a black and silver semi-automatic .9mm caliber pistol.
The defense attempted to introduce Mouling's unrelated convictions for drug trafficking while armed and possession of a weapon by a felon apparently so that the jury might infer from these convictions that Hunter was not guilty of the charges arising from the events of October 6. Specifically, Hunter sought to introduce evidence to suggest that the gun found by the police in a makeup case during ...