Appeal from the Superior Court of the District of Columbia Criminal Division (CF1-11378-06) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before WASHINGTON, Chief Judge, and GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges.
Following a jury trial, appellant was convicted of armed robbery, felony murder, and second-degree murder arising from his alleged involvement in the armed robbery of Antoine "Fat Tony" Womack. On appeal, appellant argues that his convictions should be vacated for three reasons. First, appellant claims that the trial court erred in refusing to suppress his confession. Second, appellant argues that the trial court gave an improper jury instruction regarding his charge for second-degree murder. Finally, appellant contends that his due process rights were violated because the trial judge assumed a prosecutorial role. For the reasons explained more fully below, we affirm.
The government's main witness at trial, Bernard Anderson, testified that he called his cocaine supplier, Fat Tony, on the night of the murder to make arrangements to purchase some cocaine. According to Bernard, appellant then hatched a plan to rob Fat Tony, and suggested that Bernard call Fat Tony back and increase his order to maximize their potential takings. Bernard complied, and as they waited for Fat Tony to arrive, appellant displayed a pistol in his waistband. When Fat Tony pulled up, Bernard got into the passenger seat, as planned, and appellant got in the back. Fat Tony drove about three blocks to 7th and Nicholson Streets, where he parked his car. Appellant then put his gun against the back of Fat Tony's head.
Fat Tony said "Y'all don't have to do this" and gave his money and drugs to Bernard, who then exited the car. After Bernard had taken a few steps back towards his house, he looked back, saw a flash, and heard a gunshot. Appellant then exited from the driver's side back door and the two men split up after agreeing to meet later at Bernard's house. When Bernard saw appellant 45 minutes later, he gave him about $450 and some of the cocaine. Bernard asked appellant what he had done and appellant replied that he shot Fat Tony because he did not want to see him around the neighborhood anymore. Bernard saw appellant about a week later and gave him more of the drugs and $100.
Police responded to the scene of the shooting, took photographs, and recovered one cartridge casing from inside Fat Tony's car. A Deputy Medical Examiner determined that Fat Tony died from a single gunshot wound to the back of his head. The bullet entered his brain at the right side of the back of his head and there were stippling marks near the wound, which indicated that the murder weapon was fired from no more than 18 inches away.
Appellant was arrested about six months later pursuant to a warrant charging him with the murder of Fat Tony. After being transported to the Metropolitan Police Department's violent crime office, Detective Milton Norris placed appellant in an interview room and left him alone for about 20 minutes. When Detective Norris returned, he told appellant that he was under arrest for homicide and read appellant the Miranda*fn1 warnings from a PD-47 rights card. Appellant executed the PD-47 rights card and indicated that he wanted to talk to the police. Before Detective Norris left the interview room, he told appellant that another detective would be there soon to speak with him. Detective Wayne Corbett, who was one of the detectives assigned to the Fat Tony homicide, came in the interview room about 30 minutes later.
Detective Corbett's interview of appellant was filmed on videotape, and the government introduced the tape into evidence at trial.*fn2 At first, appellant claimed that he was not involved in the murder of Fat Tony and that he did not find out about it until "a couple days later." He said that he was outside Bernard Anderson's house on the day of the murder and that he saw Bernard and his younger brother Harold get into Fat Tony's car. When the Andersons returned about 15-25 minutes later in a different car, appellant went with Harold to a store where Harold bought some clothing for himself and for appellant.
After Detective Corbett had been alone with appellant in the interview room for some time discussing the Fat Tony murder, Detective Norris came back in because he wanted to ask appellant about a double homicide that occurred near where Fat Tony was murdered. Appellant denied having any knowledge about these other murders and he became upset with Detective Norris when Detective Norris accused him of threatening a witness. Appellant asked Detective Corbett, who was still in the interview room as well, "Can I talk to you?
Because he [Detective Norris] acting like he got a problem." Appellant also complained to Detective Corbett that "he [Detective Norris] not listening to me." As Detective Norris continued questioning appellant about the threat, however, appellant became more agitated and the following exchange took place:
Appellant [to Detective Norris]: I'm done talking to you. Go get my lawyer. How about that? You just made it that simple for me. Go get my lawyer. I'm done talking to you.
[to Detective Corbett]: Can I talk to you, please?
Detective Norris: Okay. Oh, you the one charged with murder one, not me.
Appellant [to Detective Corbett]: Can I talk ...