Appeal from the Superior Court of the District of Columbia (F-4762-04) (Hon. Rhonda Reid Winston, Trial Judge) (Hon. Neal E. Kravitz, Trial Judge).
The opinion of the court was delivered by: Pryor, Senior Judge
Before PRYOR, FERREN, and KING, Senior Judges.
Opinion for the court by Senior Judge PRYOR.
Dissenting opinion by Senior Judge FERREN at p. 10.
Appellant was charged with first-degree premeditated murder while armed, possession of a firearm during a crime of violence, and possession of a prohibited weapon. D.C. Code §§ 22-2101, -4502, -4515 (b), (c) (2001). After a jury trial, he was acquitted of first-degree murder but convicted of second-degree murder, as a lesser-included offense, and both weapons charges. He now appeals his conviction on the basis that it was error to instruct the jury on the lesser-included charge based on the evidence presented. We affirm.
In June 2004, a group of residents in the 1500 block of Second Street, Southwest were congregating outside their apartments to socialize. Around 10:30 p.m., Ernest Jennings, appellant's uncle, knocked over a trash can near the group, spreading garbage and broken glass on the ground. He appeared to be intoxicated and refused to pick up the trash can and debris. An argument ensued between Ernest Jennings and several members of the group, who insisted he clean up the trash. Appellant was at his aunt's apartment nearby when he was called to come get his uncle. After several unsuccessful attempts, appellant convinced his uncle to get into a car and the two drove away.
At about 2:00 a.m. the next morning, a smaller group of individuals continued to socialize in lawn chairs assembled in the courtyard of an apartment building on Second Street. Kelly Hull, the sister of the man who was later killed, was about to leave with her brother, Jamal. He waited for her by his car parked in front of the apartment building. Kelly Hull walked out of the courtyard and around the side of the building into an area between the buildings to urinate. While there, she was passed by a man carrying a rifle whom she recognized as appellant based on her knowledge of him "around the neighborhood." The man told her to "get . . . out of here" and continued walking until he reached a gate in the area. He then raised the gun and fired "a lot of" shots into the street beyond the building before fleeing. Police found ten shell casings scattered in a line leading from the area over a distance of eleven to forty-seven feet from the curb. All of the casings were determined to have come from the same firearm, and expert testimony at trial established that the casings would have landed about three feet from the shooter as each shot was fired.
Kelly Hull emerged from the area where she had been and saw her brother Jamal lying in the street. At trial she admitted that, on the night of the shooting, she had been drinking and that she was "addicted to PCP" but denied that either circumstance affected her ability to recognize appellant as the shooter. She also testified that she had seen Ernest Jennings leaning on a gate an hour before the shooting. The parties stipulated that Ernest Jennings was "badly beaten" by unknown individuals shortly after the shooting in a building about a block away.
At the conclusion of the trial, the defense moved for judgment of acquittal, arguing that the government had failed to establish the identity of the shooter as well as proof of premeditation and premeditation necessary for a first-degree murder conviction. The record reflects that the defense had vigorously asserted the deficiency of proof related to the identification of appellant as the person who fired the shots. The motion was denied and the government requested a second-degree murder charge as a lesser-included offense. The government suggested that the evidence could equally support the view that appellant fired the shots generally in the area of the group, evincing a conscious disregard for the extreme risk of death or serious bodily injury that could result. Notwithstanding the challenge regarding the issue of identify, the judge concluded an instruction was appropriate under a "depraved heart theory." Relying on Comber v. United States, the trial court observed that second-degree instructions were warranted in situations that included:
firing a bullet into a room occupied, as the defendant knows, by several people, starting a fire at the front door of an occupied dwelling, shooting into a moving automobile necessarily occupied by human beings, playing a game of Russian roulette with another person, [and] selling pure, i.e., undiluted heroin. It just seems to me that a rational construction of the facts in this case could fit perfectly within those categories . . . . [T]he government's theory is that the defendant goes back and intentionally shoots Jamal Hull. But the law allows the government as a fall back to say that he went back and intentionally fired into the block, knowing that people where there and understanding that by doing so he was creating a grave risk of death or serious bodily injury to the people who were in the line of fire.
See Comber, 584 A.2d 26, 39 n.13 (D.C. 1990) (en banc).
The jury subsequently acquitted on the first-degree murder charge but convicted on the lesser included second-degree murder charge. He argues that the result was to unfairly encourage the jury to ...