Appeals from the Superior Court of the District of Columbia (F-7419-04 & F-7430-04) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, and REID And KRAMER, Associate Judges.
A jury found Adonnis Atchison guilty of second-degree murder and assault with a deadly weapon ("ADW"), as well as related weapons offenses in two separate incidents. Atchison appeals from his convictions, contending that the trial court erred by (1) failing to suppress the weapon that was recovered as a result of the execution of a search warrant in a manner that violated the District of Columbia's knock and announce statute; (2) failing to sever the indictments for murder and ADW; and (3) instructing the jury on second-degree murder as a lesser-included offense under first-degree premeditated murder. Finding no errors, we affirm.
Atchison was convicted of the murder of Marlow Willis who, on the morning of January 1, 2004, was found laying face down in a field with one gunshot wound on the side of his head and another in his back. At trial, the government presented evidence that Atchison had admitted his involvement in the shooting on at least three occasions during various conversations with friends that took place approximately two months after the shooting. One of his friends, Jerome Fleming, testified that he was told by Atchison that on the night of the shooting Atchison was riding around with Richie Landecho and Marlow Willis smoking marijuana when Landecho forced Willis out of the car and ordered him to start running. Landecho then shot Willis in the back before calling Atchison over and telling him to shoot Willis, whereupon Atchison shot Willis in the head with the weapon.
Daniel Scott, another friend of Atchison's who attended the same New Year's Eve party that Atchison, Landecho, and Willis had attended prior to the shooting, testified that Atchison told him that he shot Willis in the head after Landecho shot Willis in the back. Both Fleming and Scott further testified that each had seen Atchison carry a .357 caliber revolver with a brown or wood handle both prior to and following Willis' shooting, and that he usually kept the firearm in his bedroom closet. Scott additionally testified that Atchison slept in a double bed, the larger of two beds in his apartment.
On approximately October 20, 2004, Detective John Bevilacqua received a tip from an informant, who had previously provided him with reliable information, that Atchison possessed an illegal firearm at his residence and that the gun may have been used in a homicide. The informant described the weapon as a silver revolver that was kept under the mattress of a bed in Atchison's apartment, a one-bedroom basement apartment identified by street and number, and that he had seen the same gun in the possession of someone named "Adonnis" subsequently identified by Detective Bevilacqua as Adonnis Atchison. Detective Bevilacqua had previously stopped Atchison on more than one occasion, and consequently knew to whom the informant referred. The informant also indicated that Atchison occasionally carried the firearm on his person when he went out. Detective Bevilacqua obtained a search warrant for Atchison's residence on October 22, 2004, and asked the informant to notify him when Atchison was home in order to avoid execution of the warrant when Atchison was out carrying the firearm. On the afternoon of October 30, 2004, the informant called Detective Bevilacqua to inform him that Atchison was at his residence, and Detective Bevilacqua, along with other officers, executed the warrant approximately one hour thereafter. Detective Bevilacqua testified that upon arriving at Atchison's residence at 3:55 p.m., the officers knocked twice and announced their presence, heard nothing, waited fifteen seconds and then forcibly entered the apartment with a battering ram. Atchison was not present in the apartment, nor did he appear during the search. The only occupant in the residence was Atchison's step-father, Steven Kemper-who owned the apartment and to whom Atchison paid nominal rent-who was watching television in the living room and was visible to the police when they entered through the front door. The officers then retrieved from the bedroom of the apartment both a .357 caliber revolver from under the mattress of the double bed and ammunition for a .357 caliber revolver from the closet.
Atchison was also charged and convicted of ADW for assaulting Antonio Smith. That charge arose out of an apparently unrelated incident that occurred on October 29, 2004, during which Atchison angrily confronted Smith outside of Smith's apartment about an earlier disagreement between the two of them. Atchison attempted to punch Smith, and Smith retaliated by swinging back with his fist. Atchison then pulled a knife out of his pocket, stabbed Smith in his side and ran away. A short time later, Atchison returned and again confronted Smith. This time Atchison was carrying a chrome .357 caliber revolver with a wood handle. Atchison struck Smith on the back of the head with the handle of the gun and then fled. At trial, Smith testified that the gun that was recovered from Atchison's apartment was the same one used by Atchison to hit him.
Atchison was charged with the murder of Willis and the assault on Smith in two separate indictments that were joined for trial. Corresponding weapons charges were also brought against him. Atchison moved to sever the indictments and the trial court denied the motion, holding that jury confusion of the murder and ADW counts was unlikely, but noting that the issue could be raised again should a risk of prejudice arise during trial. Following the jury trial, Atchison was convicted of ADW, but the jury could not reach a verdict on the murder charge and a mistrial was declared as to that charge. Atchison was subsequently retried for the murder of Willis and convicted of second-degree murder as a lesser-included offense of first-degree murder. While Atchison raises several claims of error on appeal, we find only one that merits any extended discussion and that is his contention that the police failed to comply with the District's knock and announce statute, and therefore, the trial court erred in denying his motion to suppress the .357 caliber handgun and ammunition that was found in Atchison's bedroom pursuant to the search.
The primary question before us is whether, under the circumstances presented here, the officers' delay of fifteen seconds before forcibly entering the apartment violated the District of Columbia's knock and announce statute, D.C. Code § 23-524(a) (2001). Atchison contends the trial court erred by finding that the officers complied with the District's knock and announce statute because the fifteen second delay between the announcement of their presence at the door and their uninvited entrance into the apartment could not have been reasonably understood as a constructive refusal to admit them, and therefore, the evidence of the revolver and ammunition discovered during the search of his apartment should have been suppressed at trial.*fn1 We defer to the trial court's findings of fact, unless clearly erroneous, and review de novo the trial court's legal determination as to whether, in the circumstances, the police complied with the knock and announce statute. See United States v. Owens, 788 A.2d 570, 573 (D.C. 2002).
While the law favors the execution of a warrant under circumstances where the owner of a property is available to respond to the demands of law enforcement and assist with their lawful entry into the home or residence, D.C. Code § 23-524(a) states that an "officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . . ." See also Owens, supra,788 A.2d at 573 (quoting D.C. Code § 23-524(a)). The requirement to give notice of authority and purpose before entering is commonly referred to as the "knock and announce" requirement. It is designed to serve several purposes including reducing the potential for violence against both police officers and occupants when police officers seek to enter a residence; preventing needless destruction of property; and recognizing the importance of an individual's expectation of privacy in his or her house. See Poole v. United States, 630 A.2d 1109, 1116 (D.C. 1993) (quoting United States v. Bustamante-Gamez, 488 F.2d 4, 9 (9th Cir. 1973)). Under the statute and this court's jurisprudence, the police need not wait for an actual reply before forcibly entering a residence "(1) where the police may 'reasonably infer from the action or inaction of the occupants that they have been constructively refused admittance'; and (2) where the police are confronted with 'exigent' circumstances, such as the imminent destruction of evidence, or some danger to the entering officers." See id. (quoting Williams v. United States, 576 A.2d 700, 703 (D.C. 1990)).
Whether knocking twice and delaying forcible entry for fifteen seconds constitutes substantial compliance with the knock and announce statute requires consideration of the particularized facts of the case. "The Fourth Amendment's knock and announce principle, given its fact-sensitive nature, cannot be distilled into a constitutional stop-watch." Owens, supra, 788 A.2d at 577. We have previously considered the reasonableness of police entry following announcement and a brief delay, and have refused to "reduce [the constructive] refusal requirement to a mere symbolic pause before the police break down the door." Poole, supra, 630 A.2d at 1118. And, moreover, we have specifically noted that "a wait of fifteen seconds after announcement of authority and purpose is not per se or even presumptively evidence that the police have been constructively refused admittance." Owens, supra, 788 A.2d at 577. However, the fact that a fifteen second delay is not presumptive evidence of constructive refusal does not mean, as Atchison would have us find, that a fifteen second delay can never constitute a constructive refusal. We emphasize that "[j]udicial determinations of the lawfulness of a forced entry are highly contextual and must be based upon a consideration of the totality of the circumstances." ...