Appeal from the Superior Court of the District of Columbia, (FEL4633-02),(Hon. John H. Bayly Jr., Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, GLICKMAN and KRAMER, Associate Judges.
A jury convicted appellant, Andrew Daniels, of first-degree murder while armed, possession of a firearm during a crime of violence and carrying a pistol without a license.*fn1 Mr. Daniels contends that the trial court committed reversible error by
(1) admitting hearsay statements during the testimony of two government witnesses; (2) permitting improper prosecutorial comments during the government's rebuttal argument; and (3) convicting him of conduct protected under the Second Amendment to the Constitution.*fn2
Discerning neither reversible trial court error nor abuse of discretion, we affirm.
The record shows that on the night of April 17, 2002, Mr. Daniels fatally wounded Curtis Cofield in the parking lot of the Sursum Corda Apartment complex, located in the Northwest quadrant of the District of Columbia. The apartment complex sits at the top of the hill on the southwest corner of an area known as the Horseshoe, where First Terrace meets L Place. The Golden Rule Apartments, where Mr. Daniels lived, and the Golden Rule Supermarket, are located at the bottom of the hill. On the night of his death, Mr. Cofield was celebrating his birthday with friends and relatives. Around 11:00 p.m., while he was sitting in his car with two friends, Mr. Daniels, who was dressed in black, walked into the lot, stopped about three feet from Mr. Cofield's car and fired shots into the passenger-side window with a silver gun. Mr. Daniels then turned around and left the scene. According to the testimony of Dr. Marie-Lydie Pierre-Louis, then the Chief Medical Examiner for the District of Columbia, Mr. Cofield died of gunshot wounds to his lungs, liver and brain.
To establish Mr. Daniel's guilt, the government called several witnesses who were on the scene at the time of the shooting, or who spoke with Mr. Daniels sometime after the shooting, or who were aware of problems between cohorts of Mr. Daniels and Mr. Cofield. Kenny Kay,*fn3 who grew up in the Sursum Corda complex and who still lived nearby, saw Mr. Daniels in the Horseshoe immediately before and after the shooting. He was standing on the First Terrace side of the Sursum Corda complex and watched as Mr. Cofield and Mr. Daniels "met up." Soon, around "[f]ive to 10 minutes to 15 minutes tops, [he] heard gunshots." After hearing "four or five" shots, he ran towards his home. While Mr. Kay was climbing "the gate" - an eight-foot fence between an alley and L Street - he heard someone say, "move, move, move." Mr. Kay "got down and turned around[,] it was [Mr. Daniels] right there with a gun in his hand." Mr. Daniels put the gun in his pants and climbed over the fence.
During his testimony, Mr. Kay mentioned a person called "Ears," later identified as Daniel Demo; Mr. Demo was one of the men who "hung out" at the top of the hill. When the prosecutor asked about the relationship between Mr. Daniels and Mr. Demo, Mr. Kay replied, "[w]asn't no good, wasn't no good heart"; altercations had taken place between Mr. Daniels and Mr. Demo.*fn4
On cross-examination, defense counsel established that in testimony before the grand jury, Mr. Kay said that the gun he saw in Mr. Daniels' hand on the night of the murder was black, even though during his direct examination, he stated the gun was silver. On redirect examination, he indicated that the gun was silver; he had "seen Mr. Daniels with numerous colors of guns all the time." Before the day on which Mr. Cofield had been killed, Mr. Kay had noticed both a black and a silver gun in Mr. Daniels' possession.
From his home on the First Terrace side of the Horseshoe, Earl Risby,*fn5 who had lived in the Sursum Corda area his entire life, heard gunshots on the night of Mr. Cofield's death. Mr. Risby looked out of his upstairs bedroom window; Mr. Daniels was in the cut - a footpath between buildings - walking toward First Terrace. Mr. Risby ran downstairs. He opened the front door and saw Mr. Daniels coming through the cut carrying a gun. Quickly, Mr. Risby "shut the door because [he] didn't want to be seen."
Frances Warren lives on the First Terrace side of the Horseshoe, not far from the Sursum Corda Apartments. On the night of his death, Ms. Warren had briefly stopped by the parking lot to wish Mr. Cofield a happy birthday; she had known him all of her life. Later, from her third-story bedroom window, Ms. Warren watched a man dressed in black walk into the apartment parking lot. She heard gunshots and people screaming. Less than a minute later, she saw the same man walking in the opposite direction.
Laura Pearson,*fn6 a ten-year resident of the Sursum Corda area, was in the Horseshoe on the night of the murder. A man dressed in black, walked by her in the direction of the parking lot. Ms. Pearson heard gunshots; moments later, the man returned with a black gun in his hand. Sometime later, in July 2002, Detective Gregory Sullivan of the Metropolitan Police Department, the lead detective for the investigation of Mr. Cofield's murder, showed Ms. Pearson nine photographs. From this photo spread, Ms. Pearson selected the picture of Mr. Daniels as the person she saw on the night of the murder.
Danny Winston,*fn7 a fifteen-year resident of Sursum Corda who frequented the top of the hill in the Horseshoe area, was among those celebrating Mr. Cofield's birthday. He described Mr. Daniels as a friend. "When it started drizzling," Mr. Winston walked out of the parking lot. He saw Mr. Daniels "walking up." Mr. Daniels stopped "three feet from [Mr. Cofield's] car[,] [p]ulled out a gun and shot him, shot towards the car. Hit [Mr. Cofield]. Turned back around and walk[ed] off."
The government attempted to establish the motive for the murder of Mr. Cofield through at least three witnesses - Mr. Risby, Antwan Harrington, and Sandra Whitley. Mr. Risby knew both Mr. Cofield and Mr. Daniels from the neighborhood. Mr. Cofield and his friends (including Mr. Demo) would gather at the Horseshoe while Mr. Daniels and his friends (including Mr. Winston) would "hang out" near the Golden Rule Supermarket. On one occasion, Mr. Demo told Mr. Risby that Mr. Daniels "robbed him." In return, Mr. Demo and his friends "shot at" Mr. Daniels and his friends. Mr. Risby responded "[y]es" to the prosecutor's question as to whether "the robbery and the shooting  was... part of an ongoing beef between [Mr. Daniels] and his friends [who hung out] at the bottom of the hill," and Mr. Demo and Mr. Cofield and their friends who gathered "at the top of the hill." Mr. Demo was killed between May 24 and 26, 2002, and the alleged robbery occurred "six to eight months before Mr. [Demo] was killed."
On the morning of Mr. Cofield's birthday, Mr. Harrington,*fn8 a ten-year resident of Sursum Corda, witnessed Mr. Daniels and Mr. Cofield (both of whom he knew) in the Horseshoe arguing "about the money [Mr. Daniels] took from... [Mr. Demo]." Mr. Cofield declared: "There's going to be some trouble if [Mr. Daniels] didn't give [Mr. Demo] his money back." Mr. Daniels retorted that "he could return the same favor."
Ms. Whitley, the godmother of Mr. Daniels' sister, had lived in the Golden Rule Apartments at the bottom of the hill for ten years. Around 3:00 in the afternoon on the day of the shooting, Mr. Daniels picked up his daughter from Ms. Whitley's apartment. In the grand jury and at Mr. Daniels' first trial, Ms. Whitley testified that during this visit Mr. Daniels had told her, "I'm going to bust somebody up on the hill." The next day, Ms. Whitley "heard somebody got shot" up the hill. About a week later she learned the "somebody" was Mr. Cofield. At Mr. Daniels' second trial, Ms Whitley's testimony changed. She testified that Mr. Daniels said, "I'm going up on the hill. I'm going to bust a game." "Mr. Daniels gambled a lot," she voluntarily added. Ms. Whitley also claimed that she did not learn anything about the shooting until "about two or three weeks later because [she] hadn't been around the neighborhood." Because Ms. Whitley was impeached with her prior testimony, the jury heard both versions of her story.*fn9 Detective Sullivan testified that he had "spoke[n] to [Ms.] Whitley a couple [of] times with regard to the investigation." She "told [him] that she had been in [Mr.] Daniel's presence in her apartment and that [Mr.] Daniels told her that he was going to go up the hill and bust somebody."
While incarcerated at the District of Columbia Jail, Mr. Daniels spoke about the murder with two fellow inmates: Richard Williams and Melvin Widery. Prior to his first trial, Mr. Daniels told Mr. Williams: "[Mr. Cofield] tried to get in my water, so I drowned him." More specifically, "[Mr. Daniels] said that he walked up, he walked up on [Mr. Cofield]. It was [Mr. Cofield's] birthday. He ain't even say if it was a gun or anything, just said he punished [Mr. Cofield]." Mr. Widery and Mr. Daniels met between Mr. Daniels' first and second trials. Mr. Daniels told Mr. Widery that "when he bust off," Mr. Cofield "was in the passenger seat of his truck." The two men also discussed witnesses from Mr. Daniels' first trial. In Mr. Daniels' estimation, Ms. Warren's sighting of him from her third-floor window "was impossible because I was dressed all in black." Mr. Daniels further ...