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Riddick v. United States

May 13, 2010

GEORGE B. RIDDICK, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F-1314-05) (Hon. Wendell P. Gardner, Trial Judge)

The opinion of the court was delivered by: Thompson, Associate Judge

Argued October 22, 2009

Before GLICKMAN and THOMPSON, Associate Judges, and FARRELL, Senior Judge.

On April 11, 2007, a jury convicted appellant George Riddick of the second-degree murder of his girlfriend, Danitza Barrera.*fn1 Appellant also was convicted of weapons offenses relating to that incident: possession of a firearm during a crime of violence, carrying a pistol without a license ("CPWL"), and CPWL outside the home.*fn2 On appeal, he challenges his convictions on two grounds. First, he contends that the trial court abused its discretion in excluding from evidence a handwritten note found in the victim's bedroom, evidence that he contends would have supported his defense that the shooting was accidental. Second, he seeks reversal of his CPWL convictions on Second Amendment grounds. We affirm.

I.

The government presented evidence that, on the morning of May 9, 2000, police officers, responding to a 911 call from a man who said that his girlfriend had been shot,*fn3 arrived at the Elvans Road, S.E., apartment that appellant had shared with Barrera and her toddler son. Officers saw the toddler near a window and found Barrera in the bedroom, lying on her back on the bed, and bleeding from what appeared to be a gunshot wound to her neck. A towel was on her neck. Barrera was unconscious and was "gasping for air." She was pronounced dead about half an hour after police found her. The medical examiner who conducted the autopsy, Dr. Wendy Gunther, testified that a bullet entered the left side of Barrera's neck and exited through her back, near her right shoulder. Dr. Gunther found no other injuries on Barrera's body other than a fingernail scar on her forearm. Barrera's hands were clean "except for a tiny smear of blood on one spot;" and there was no blood spatter or "blow back" on the backs of her hands, as would be expected if she had shot herself. On the bed, police found a copper-jacketed bullet consistent with a .32 caliber pistol, but they found no gun or shell casing.

Metropolitan Police Department Officer Charles Brevard testified that as he approached the apartment building on Elvans Road about two minutes after the 911 call was received, he passed a driver in a Volvo who was going in the opposite direction. He later learned that the driver was appellant. Government witness Sonja Erickson described appellant's activities after he left Elvans Road. Erickson testified that she saw appellant at the home of Anthony Broom. Erickson went there after Broom telephoned her and asked her to come over to "clean up some things," a request that Erickson understood to mean that Broom wanted her to remove some guns from the house. When Erickson arrived at Broom's house, appellant put a gun and a shell casing, which he pulled out of his shirt pocket, into a duffel bag that Erickson held out to him.*fn4 Appellant told Erickson that he had shot Barrera, but that "it was an accident." Erickson testified that appellant further told her-"in [precisely] this order"-that he "packed his bag, . . . packed his clothes, . . . found the shell casing on the floor, and . . . [t]hen . . . called 911," putting something over the phone to disguise his voice. When Erickson confronted appellant about whether the shooting had really been an accident, appellant responded, "I was mad.*fn5 I was trying to scare her."

About an hour later, after learning that Barrera was dead,*fn6 appellant described to Erickson his plan to flee the area. He asked Erickson if she would take a bus with him to New York City, explaining that he believed the police would be looking for a man traveling alone. When Erickson declined, appellant said that he would go nonetheless and that he would use the alias "Paul" along with a last name "like, Smith, Jones, something . . . [a] really easy name." Approximately a month later, appellant called Erickson, identified himself as "Paul," and made a comment about being in New York. Erickson then called the police. It was not until 2005, five years after appellant absconded, that marshals located him and arrested him in New York.

The government also elicited testimony from Erickson and from neighbors in the Elvans Road apartment building that the relationship between appellant and Barrera had been contentious.*fn7

Erickson testified about an incident, several months before the shooting, when she saw appellant grab Barrera by her shirt and point his finger toward her neck. Barrera looked "scared" but did not say anything. Neighbors testified that appellant and Barrera argued frequently. Neighbor Kevin Franklin testified that in March 2000, he heard Barrera yelling at appellant after answering a pager message from one of appellant's girlfriends. Speaking to Franklin in the hallway outside the apartment, appellant said, "Man, sometime, man, she make me want to kill her ass." Shortly afterwards, Franklin saw clothes scattered in the hallway, and ten or fifteen minutes later saw appellant carrying bags of clothes to his car. Neighbor Troy Lyles testified that on more than one occasion appellant would "pack[] his stuff" and leave the apartment, but later would return and begin fighting with Barrera again. Lyles recalled that, a few weeks before the shooting, he walked down the building stairs, carrying an overnight bag. Appellant told Lyles that Barrera was "getting on [appellant's] nerves. She going make me F her up." Lyles also testified that he heard the couple fighting on the morning of the shooting.

During his testimony, appellant acknowledged that his relationship with Barrera had been "rocky," that he hit her on numerous occasions and may have kicked her, and that, as a result of their fights, he often would leave only to come back later. He denied that Barrera had threatened to leave him, and he also disputed that Barrera had thrown his clothes into the hallway. Appellant testified that the shooting was an accident. He told the jury that he had obtained a loaded .32 caliber handgun (from Broom) about two or three weeks before the shooting "for protection." He also testified that on the night before the shooting, he and Barrera had had another "verbal confrontation" and he left and spent the night elsewhere. When he returned to Elvans Road on the morning of May 9, Barrera started "fussing," "screaming" and "yelling" because she thought appellant had been with another woman. As the arguing back and forth continued, appellant told Barrera that he was "tired of this" and began to pack his bags. As he packed, Barrera pulled the gun on him and told him that he was not going anywhere. Appellant yelled at Barrera to put the gun down, and then grabbed for the gun. According to appellant, Barrera was waving the gun, appellant grabbed her hand and her arm, appellant and Barrera both began to fall, and, while both had their hands on the gun, the gun fired. Seeing that Barrera had been shot in the neck, appellant grabbed a towel and put it over the wound to try to stop the bleeding. Appellant then called 911. He denied that he masked his voice to avoid detection, but said that he panicked after making the call. He grabbed his bags and left the apartment. Appellant denied that he picked up the shell casing after the shooting, saying that the shell casing must have gotten "stuck," something he realized only when he gave the gun to Erickson.

The court gave the jury instructions on first-degree murder, second-degree murder, and voluntary manslaughter while armed, and on accident as a complete defense to those charges. After sending two notes asking the court about the definition of "deliberation,"*fn8 the jury acquitted appellant of the charge of first-degree murder, but found him guilty of second-degree murder.

II.

During a search of Barrera's bedroom, police found, in the top drawer of a corner cabinet, a sheet of yellow lined paper on which the following was handwritten: "My life is going down the drain more and more george is pulling away from me more now[.]"*fn9 The government had lost the original sheet of paper at some point before trial, but had preserved a copy, which the defense sought to introduce into evidence. Although acknowledging that the handwriting on the paper could not be authenticated as that of Barrera (since a handwriting expert would need the original to be able to opine on the issue), the defense argued that the writing was evidence of Barrera's state of mind and was relevant because it suggested appellant "was the one who was leaving and that [Barrera] was upset about that and that, therefore, she might take steps to stop him" by pulling a gun on him. Appellant urges that the handwritten note "suggested a powerful reason why [Barrera] might resort to extreme measures to prevent him from leaving her altogether," and contends that, at the very least, the note made it slightly more likely that appellant's account of what occurred was true.*fn10 Thus, appellant argues, the trial court abused its discretion in excluding the handwritten ...


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