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Little v. United States

February 25, 2010

MARVIN C. LITTLE, APPELLANT,
v.
UNITED STATES, APPELLEE.



On Appeal from the Criminal Division of the Superior Court (F-1292-04) (Hon. Erik P. Christian, Trial Judge).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued February 18, 2009

Before REID, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.

As a result of his involvement in a violent attempt to rob a purported drug dealer, appellant Marvin Little was convicted by a jury of one count of armed robbery ("AR"), two counts of assault with a dangerous weapon ("ADW"), two counts of aggravated assault while armed ("AAWA"), three counts of possession of a firearm during a crime of violence ("PFCV"), one count of carrying a pistol without a license ("CPWL"), one count of possession of an unregistered firearm ("UF"), and one count of unlawful possession of ammunition ("UA").*fn1 Appellant raises three issues on appeal. First, appellant claims that his CPWL, UF, and UA convictions should be reversed because the relevant statutes violate his Second Amendment rights. Second, appellant asserts that the trial court gave an erroneous aiding and abetting instruction to the jury. Third, appellant contends that the trial court erred in admitting a "certificate of no record" of firearms registration and a "certificate of no record" of a license to carry a pistol because their admission violated his rights under the Sixth Amendment Confrontation Clause. We affirm all of appellant's convictions.

I.

On the evening of February 4, 2004, Michael Richardson, a purported marijuana dealer, received a call at home from his friend, Slavko Totev, who told Mr. Richardson that he would be stopping by for a visit. Shortly after the call, four men, including appellant, entered Mr. Richardson's apartment without invitation. Two of the men pulled out guns, ordered Mr. Richardson to lie on the floor and demanded money. When Mr. Richardson said he did not have any money, the men proceeded to search his apartment. Approximately ten minutes after the four men had arrived, Mr. Totev arrived and one of the four assailants let him into the apartment. When Mr. Totev entered the apartment, he saw several men standing in the middle of the room and Mr. Richardson lying on the floor. He then felt a gun at the back of his head and was ordered to lie on the floor.

Appellant searched Mr. Totev for money while he was lying on the floor, and then tied his hands behind his back. Appellant took Mr. Totev's wallet, cell phone, and car keys, and then covered Mr. Totev's head with blankets and pillows. After a few more minutes of demanding money from Mr. Richardson and searching the apartment, appellant lifted Mr. Totev from the floor and placed a knife to his throat.Appellant told Mr. Richardson that he would cut Mr. Totev's throat unless Mr. Richardson gave him the money. Mr. Richardson did not respond and appellant cut Mr. Totev's throat.*fn2 Appellant let Mr. Totev fall to the floor, and discussed with the other intruders how to proceed. Two of the intruders left while appellant and the other assailant stayed in the apartment. Mr. Richardson then informed the men that there was some money in the corner.

While appellant and the other assailant were searching, Mr. Richardson was able to free his hands. He rushed the men and slammed them into the wall. Mr. Richardson struggled with appellant while the other man ran outside for help. While Mr. Richardson and appellant continued to fight, one of the intruders reappeared and shot Mr. Richardson in the face.*fn3 One of the men hit Mr. Richardson on the head with a gun and then ran out of the apartment, leaving two guns behind. Mr. Richardson picked up the guns and chased after the intruders. He attempted to fire the guns, but they did not discharge. Mr. Richardson then went to the upstairs apartment unit where his landlord lived. The landlord yelled for her sister to call the police. The police arrived soon thereafter.

Mr. Totev testified that he saw appellant hit Mr. Richardson on the head with a gun, but that he did not see appellant with a gun at any other time. After Mr. Richardson chased the men outside, Mr. Totev freed his hands, went outside, and saw Mr. Richardson sitting outside the landlord's apartment holding two guns.

Officer Samuel Gaines arrived to find Mr. Richardson sitting on the steps outside covered in blood. Officer Gaines also saw Mr. Totev, who was covered in blood as well and running up and down the sidewalk in hysterics. [Id. at 52]. Elsewhere in the area, another officer, Kimberly Dickerson, observed two men running and ordered them to stop. The men continued to run and Officer Dickerson issued a lookout for both men. Officers Frank Servis and Norman Ramon heard the broadcast and found appellant hiding in a nearby stairwell.*fn4

Detective Adrian Owens conducted a show-up identification, whereby he brought appellant to the scene where Mr. Totev was being treated in an ambulance.Detective Owens stated that Mr. Totev was unable to identify appellant at that time. However, Mr. Totev later testified that he could not identify appellant at the show-up identification because he was in shock, but he was sure that appellant was the person who cut his throat. Detective Owens also conducted a photo identification procedure with Mr. Richardson. Mr. Richardson picked two photographs from an array of nine, including one of appellant, and stated that the men looked like the intruders. Mr. Richardson further stated that the photo of appellant looked most like the person who had cut Mr. Totev's throat. Both Mr. Richardson and Mr. Totev also made in-court identifications of appellant.

Appellant's version of the story is that he was at Mr. Richardson's house as a guest and that he was also a victim of the incident. Appellant testified that he fled the scene after the attack because he was on parole and did not want to get in trouble. [Id. at 530]. Appellant said that he discarded his sweatshirt, which was found on the ground near where he was apprehended, because his friend "Tommy," who was also at Mr. Richardson's apartment, told him that he had a lot of blood on it.*fn5 Later, appellant conceded that the discarded bloody boots, shirt, and jeans found in Mr. Richardson's apartment were also his. After the police took appellant to the scene for identification and questioned him, they drove him home. Police arrested appellant approximately three weeks later on February 26, 2004.

II.

A. Second Amendment ...


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