Appeals from the Superior Court of the District of Columbia (F-1562-05 & F-3422-05) (Hon. Hiram Puig-Lugo, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before KRAMER and BLACKBURNE-RIGSBY, Associate Judges and NEBEKER, Senior Judge.
Appellants James Appleton and Derrick Ford were charged with various crimes related to the shooting of complainant, John Slade. At the conclusion of a jury trial, Appleton was found guilty of assault with intent to kill while armed ("AWIKWA"), assault with intent to rob while armed ("AWIRWA"), aggravated assault while armed ("AAWA"), and three counts of possession of a firearm during a crime of violence ("PFCV"). Ford was convicted of assault with a dangerous weapon ("ADW"), assault with intent to kill while armed ("AWIKWA"), aggravated assault while armed ("AAWA"), and three counts of possession of a firearm during a crime of violence ("PFCV"). Both appellants assert that the trial court erred by allowing the prosecutor to invoke witness fear in closing argument. Ford also argues that the trial court erred by giving a jury instruction on aiding and abetting that allowed conviction without proof of the required mens rea, and that there was insufficient evidence to support his convictions. Both appellants argue that their convictions for PFCV should merge, a position with which we agree. We affirm the convictions of each appellant, but remand to the trial court with directions to merge both Ford's and Appleton's convictions for PFCV.
On February 24, 2005, John Slade and Chris Colson went to visit a friend at 501 Edgewood Street in Northeast Washington. They left about forty-five minutes to an hour later. As Slade walked along -- several feet behind Colson -- he heard footsteps behind him, turned around and saw a man pull out a gun. Colson also turned at this point. The gunman said, "Give that shit up." Slade grabbed the gun and tried to wrest it out of the assailant's hand. While they were struggling, Slade heard the gunman say, "Shoot him." Slade looked to his right, saw a second man, heard a gunshot, realized that he had been shot in the leg and fell to the ground.While trying to straighten his wounded leg, he heard more shooting, looked up, saw a gun pointed at him and was shot approximately five times in the stomach by the person with whom he had been struggling. The shooter took no property from Slade.
At trial, Colson testified that he had seen Slade "tussling with somebody," heard some gunshots and "got out of there."He claimed that he could not recall two men being near them, but the government impeached him with his grand jury testimony, which was also admitted as substantive evidence pursuant to D.C. Code § 14-102 (2001).*fn1 Colson had testified before the grand jury that Slade was walking behind him singing, but had stopped singing when two men wearing dark clothes appeared beside him.
At trial, Slade, who admitted that he did not want to testify and had to be arrested to ensure his appearance at trial, testified that he was not able to get a good look at the person who shot him. He too was impeached pursuant to D.C. Code § 14-102 with his grand jury testimony, where he testified that "the one who shot me in my stomach, I seen his face. Me and him was staring like eye to eye when we were wrestling," and that "when he ran up on me and when me and him started wrestling his hood fell off his head, so I could see his face clearly," and further that "[t]he whole time I was wrestling, I seen his face. When I was on the ground, I looked up. When he hopped on top of me to shoot me in the stomach, I seen his face."*fn2
Fifteen-year-old Ulysses Delaney testified that he saw the events surrounding the shooting from the lobby of 501 Edgewood Street, Northeast. Delaney recognized both appellants from playing basketball in the neighborhood. Delaney saw two men he did not recognize leave the building and then saw appellants coming up the walkway. Appellants joined approximately ten people on the steps.Appleton "put a ski mask on his face" and took out a gun "from his waist." Appellants then walked off, "following 2 people." Delaney heard three gun shots about a minute later and appellants "ran very quickly" past Delaney about thirty or forty seconds later.
While Slade was in the hospital recovering from his injuries, Detective Kenneth Goldberg interviewed him about the shooting. Goldberg testified that Slade was coherent and able to answer questions during the interview.He showed Slade a photo array of nine pictures, including Appleton, and Slade identified Appleton as the shooter. Goldberg did not show Slade an array with Ford's picture because Slade said he would be unable to identify the second individual.
At trial, Slade testified that when Detective Goldberg interviewed him at the hospital about the shooting, he was "doped up from all the drugs they were giving [him]," and Goldberg showed him at least twenty photographs and instructed him to pick five. Slade also testified that the signature on the viewing sheet was not his writing. Slade was again impeached with his grand jury testimony, which was also admitted as substantive evidence, that he had properly identified the person who shot him to Goldberg.
No shell casings or other physical evidence were found at the scene,but when the police executed a search warrant at Appleton's home, they found a loaded firearm*fn3 and clothing, including a black skull cap and a black and gray North Face coat.
After his arrest, Appleton gave a videotaped statement to the police, in which he admitted his role in a shooting on a cold, snowy night in the area of 501 Edgewood Street, Northeast. He said that the shooting took place "last week sometime."*fn4 Appleton claimed that he acted alone and, though he knew Ford, denied that he was friends with him and said he "wouldn't be caught dead with [Ford]." He said that he saw some people from the 640 Crew,*fn5 a gang with whom the Edgewood neighborhood was "beefing." The two men he saw were wearing black jackets. One of the men "[came] up on" Appleton and put him in an "L." Appleton struggled with one of the men and had the gun with him that the police recovered from his home. Appleton pulled his gun out and shot Slade. The man who was not shot ran away. The man who was shot was tall, about the height of a basketball player, and wore a black North Face jacket.
Ford was arrested on June 17, 2005, when a police officer found him asleep in a hallway of the Edgewood apartments. The police officer told Ford that he was under arrest on a warrant in connection with the February 24, 2005 robbery and assault at the Edgewood apartments. After being brought down to the lobby for transport, Ford fled from police with his hands cuffed behind his back. He ran about three blocks before officers apprehended him.
During the closing argument, the prosecutor told the jury that Slade's trial testimony was not to be believed:
He might have tried to tell you that he didn't see who shot him, but the evidence shows otherwise. And I warned you in opening statement that he wasn't going to be happy about being here. And he told you himself that he didn't want to be here and ...