Appeal from the Superior Court of the District of Columbia (F-365-04) (Hon. Rufus G. King III, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ and GLICKMAN, Associate Judges, and FERREN, Senior Judge.
Appellant, Jermaine S. Spencer, was convicted of assault with a dangerous weapon ("ADW"),*fn1 possession of a firearm during a crime of violence ("PFCV"),*fn2 and carrying a pistol without a license ("CPWL"),*fn3 all in connection with the shooting death of Anthony Gabriel.*fn4 On appeal, he argues that the trial court erred by (1) failing to properly instruct the jury that it must find that appellant had the same intent required of the principal actor in order to be convicted on an aiding and abetting theory; (2) not allowing defense counsel to respond to the aiding and abetting argument that, he claims, the prosecutor made for the first time in its rebuttal; and (3) refusing the jury's request to see the impeaching grand jury testimony of a key witness. We conclude that the aiding and abetting instruction given was erroneous, but did not constitute plain error; that exclusion of the grand jury testimony also was error, but harmless; and that the trial court did not abuse its discretion in denying appellant's request for additional argument. Accordingly, we affirm.
A. The Government's Evidence
Appellant's convictions arise from the fatal shooting of Anthony Gabriel on October 5, 2003. That day, at approximately 1:00 a.m., Kionna Mitchell was in the area of 13th Street and Savannah Place in Southeast, Washington, D.C. Nearby, Mitchell saw Gabriel, Jowuan Lewis ("Juan" or "Fats") and a woman named Tyianne Thomas ("TT") who were "arguing amongst each other... real loud." Apparently, Gabriel had discovered that some marijuana he had earlier was missing, and accused Lewis and Thomas of taking it and demanded that they give it back. "[Thomas] separated herself from the situation," and Lewis told Gabriel that he did not take the missing marijuana. Gabriel then took Lewis's coat and told Lewis that he was not going to give him his coat back until Lewis returned Gabriel's "weed."
At that point, Lewis walked away and made a phone call. Mitchell heard Lewis say over the phone, "[H]ey, I need you to come right here because I got a beef on 13th." A couple of minutes later, Mitchell saw a man who came walking around the corner and approached Gabriel and Lewis, but she could not see the man's face. The man pointed a handgun at Gabriel and demanded that Gabriel return Lewis's coat. Gabriel dropped the coat, and the man shot him two to three times. According to Mitchell, neither Gabriel nor Lewis had a weapon, and Gabriel had not made any aggressive movements toward the man before he started shooting. Immediately after the shooting, Lewis and the man who fired the gun ran away.*fn5
Mitchell testified that she was "positive" that Lewis was not the shooter because the man "who shot Tony [Gabriel] is smaller than Juan [Lewis]." Lewis was much heavier (approximately five feet, two inches tall and about 240 pounds), whereas appellant was slimmer (five feet, seven inches tall and about 150 pounds). She could not, however, identify appellant as the man who shot Gabriel.
Later in the day of the shooting, police officers attempted to stop and speak to appellant upon receiving information that he had been involved in the shooting. Detective Stanley Farmer, along with other plainclothes detectives, went in unmarked police carsto meet appellant as he was dropping his children off at their mother's house. As appellant drove into the parking lot with his children and girlfriend, Detective Farmer pulled his car in front of appellant's car, and other police officers (also not in uniform) started to walk toward appellant. Appellant put his car in reverse and backed out of the parking lot onto the street. He then drove away "at a high rate of speed." Several cars pursued appellant, including a marked police vehicle which was directly behind appellant's car with its flashing lights and siren activated. Appellant continued to speed into Maryland with his children and girlfriend still in the car. Appellant eventually stopped in a residential parking lot, where he jumped out of the car and started running. Detective Farmer stopped his car and gave chase. The detective temporarily lost sight of appellant, but soon saw and apprehended him.
Detective Farmer and Detective Michael Fulton interviewed appellant at the Prince George's County police station. At that time, appellant denied having any knowledge of the shooting. That evening, however, after a second interrogation in which appellant was told that Detective Farmer had spoken to "Fats" (Lewis), appellant admitted that he had shot Gabriel. Appellant said that he had been at home with his girlfriend when he received a call from Lewis, who told him that "he was having some problem with somebody" who had taken his coat. Appellant went to help Lewis and brought a gun with him. When he arrived on the scene, appellant saw that Gabriel "was out there trying to run his mouth." Appellant told Gabriel to give Lewis his coat back. In response, Gabriel threw the coat to Lewis, and then made "some sort of movement" toward appellant. Appellant said that he shot Gabriel because "he feared for his life." In short, appellant confessed to shooting Gabriel, but claimed that he had acted in self-defense.
A search warrant was executed at the apartment appellant shared with his girlfriend. The police recovered a black "M&M" jacket and a pair of dark blue jeans. Lewis testified that appellant wore "dark-colored jeans and a black M&M racing shirt" that night.
Appellant testified that he received three calls from Lewis on October 5, 2003, during which Lewis told appellant to come outside and bring him a bag that Lewis had asked appellant to hold for him two or three days earlier. When appellant first received the bag, he did not know what was inside it. However, once appellant had taken the small black bag home he unzipped it and saw that it contained "a whole bunch of little baggies of marijuana  stacked up inside." Appellant denied ever knowing there was a gun in the bag.
Appellant testified that in response to Lewis's calls, he took the bag and met Lewis in the area of Savannah Place and 13th Street.*fn6 When appellant arrived, Lewis took the black bag from him, opened it, and "pull[ed] out a little silver gun." At that point, Gabriel began to walk away and Lewis said, "[N]o, you're going to give me my coat." When Gabriel looked back at Lewis, Lewis shot him three times.
Appellant testified that his confession to the police was a lie, and that he neither shot Gabriel nor assisted Lewis in shooting him. According to appellant, he confessed to shooting Gabriel because Lewis had threatened that if he did not take the blame, Lewis would go after his girlfriend. Appellant testified that the detectives told him that they had spoken to Lewis, who told them that appellant was the shooter. Appellant was scared that if he did not confess, the police would go after Lewis, and Lewis would learn that appellant had "pointed the finger back at him." Appellant feared that Lewis would then carry out the threat to kill appellant's girlfriend.
In addition to being impeached by appellant's confession to police that he had shot Gabriel in self-defense, appellant's trial testimony denying that he shot Gabriel was impeached with a statement he made to the police officers in which he spontaneously stated that "he felt stupid for answering the phone from [Lewis] that night and shooting someone." Appellant was also impeached with prior convictions for CPWL, possession of an unregistered firearm, and unlawful possession of ammunition.
The defense called Lewis as a witness. Lewis testified that when Gabriel realized that his marijuana was missing, he became "hysterical," and that he walked away in an attempt to avoid Gabriel because Lewis did not have the marijuana and "wasn't trying to fight." Gabriel followed Lewis, however, and threatened to "beat the shit out of [him]" and "grabbed" his coat. Lewis then called appellant and told him to "come [to] 13th street, it's important," but did not explain why he wanted appellant to come. Lewis called appellant again and told him ...