Appeals from the Superior Court of the District of Columbia (F-7870-03) (Hon. Lynn Leibovitz, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Resubmitted November 24, 2008*fn1
Before RUIZ, Associate Judge, and FARRELL,*fn2 and KING, Senior Judges.
These are three consolidated appeals of appellant's conviction and the trial court's denial of his two petitions for new trial pursuant to D.C. Code § 23-110. Appellant was charged with second-degree murder while armed (with a hard object),*fn3 when he punched Billy Sharp in the face, killing him. The jury acquitted appellant of the charged offense, but convicted him of the lesser-included offense of unarmed involuntary manslaughter.*fn4 Appellant claims that the trial court abused its discretion by admitting two autopsy photographs of the decedent at trial. Appellant claims that trial counsel*fn5 were ineffective because they failed to call an exculpatory witness and an independent forensic witness, and that the trial court abused its discretion in denying his petitions for a new trial without a hearing. We conclude there is no reversible error and affirm appellant's conviction.
Around 10:30 a.m. on November 8, 2003, Richard Adams was standing with several people on 11th and M Streets, N.W., waiting for the liquor store to open. He saw appellant argue with another person, who, he later found out, was named Billy Sharp. According to Adams, Sharp kept pestering appellant, "like man, when you gone [sic] straighten up. When you gone [sic] do that for me. Like he was talking about money, when you gone pay me my money." According to Adams, appellant "acted like I don't know what you talking about, like he didn't know the guy."
When the store opened, Adams and his friends went inside and bought bottles of liquor. Adams testified that Sharp then "ran over to my little crowd . . . and asked us for a drink, so we gave him a drink." He continued, "By the time we gave him a drink he seemed like he was in a rage. Man, I'm gone [sic] get this guy. I'm going do something about it." Sharp then ran after appellant.
Adams saw "when [Sharp] ran up behind [appellant], [appellant] kind of like shrugged around and said man, I don't know what you talking back [sic]. By the time [appellant] turned his back again, he was still coming towards [appellant]. And [appellant] turned around and swung at him, took a swing at him and hit him across the eye." Adams testified that "[Sharp] fell on the ground. I think he fell up against a tree but he fell and hit the ground." Appellant "just went on and walked away, went on about his business." Adams testified that "it happened so quickly," and, although he did not see a weapon, "[l]ooking at the gash [on Sharp], it could have been a pipe, a crow bar, a tire iron . . . . [But r]eally we didn't never get a chance to see what [appellant] hit him with."*fn6
Defense counsel sought to call Sheila Graham as a witness. She had testified before the grand jury that she did not see anything in appellant's hands. But neither the government nor defense counsel was able to locate Graham, and they agreed to introduce the relevant part of her grand jury testimony at trial.
Doctor Wendy Greene, a trauma surgeon at Howard University Hospital, treated Sharp when he was taken to the hospital. According to Dr. Greene, Sharp was not moving and had no heartbeat, and appeared to have "some bruising about the face and the rupture of the left [eye]." Sharp was resuscitated, and kept alive on ventilators because "the heart was not beating on its own and . . . [he] was not breathing on his own." Sharp's eye also was repaired. He did not regain consciousness after several days. After unsuccessfully trying to locate his family, the hospital took him off the ventilators and pronounced him dead due to brain injury. During cross-examination, Dr. Greene denied that Sharp's injuries could have been caused by the paramedics dropping Sharp when they were treating him and transporting him to the hospital on an emergency basis.
The medical examiner, Dr. Marie-Lydie Pierre-Louis, testified as an expert in forensic pathology. She ruled that the manner of death was homicide, specifically, "blunt impact trauma to head with perforation of eye and subdural hematoma." Dr. Pierre-Louis testified that Sharp had injuries to his forehead and to his eye, which indicated that there were at least two impacts. Both injuries had been sustained within three days of her examination, but she could not tell whether the eye injury was caused by a sharp or a blunt object because the eye had been sutured. She testified that the eye is very resilient and "it takes a lot of force to perforate the eye." She also testified that she could discern three different impacts -- to the eye, and to each side of the head -- but that one forceful impact to the eye could have caused all the internal injuries. Dr. Pierre-Louis testified that Sharp had sustained brain injuries as shown by the "recent hemorrhage on the right side of the head as were on the left side[.]" There was also fatal damage to the spinal cord. On cross examination by defense counsel, Dr. Pierre-Louis testified that there was cocaine residue in Sharp's blood.
Appellant argues that the trial court abused its discretion in admitting two autopsy photographs showing Sharp's "ruptured eye," and his "sawed-off skull and exposed brain." Before trial, the government moved in limine to admit three autopsy photographs of Sharp: a "close up" of his face, a photo "show[ing] very descriptively [Sharp's] left eye," and a photo of his brain "show[ing] substantial subdural hemorrhaging." The prosecutor argued that the photos were being introduced because "[t]his is a one punch case. . . . [A]nd we're going to contend tha[t] it was an excessive blow. And certainly if the defense of self defense is raised that makes it completely relevant." Defense counsel objected to the photographs of Sharp's eye and exposed brain because "they are truly very gory in nature . . . very gory and graphic photograph[s]." The trial court reserved ruling on the motion until hearing the testimony of the forensic expert.
Defense counsel renewed the objection to the photographs during the testimony of the medical examiner. With respect to the picture of the eye, counsel said, "[T]he doctor has just testified that this is a picture of him after some kind of treatment. . . . She does not know what the eye looks like. . . . This suggests that -- it suggests a worse injury than what it is." As to the photograph of the exposed brain, ...