Appeal from the Superior Court of the District of Columbia (FEL-2455-05) (Hon. Herbert B. Dixon, Jr., Trial Judge)
The opinion of the court was delivered by: Kramer, Associate Judge:
Before RUIZ, KRAMER, and THOMPSON, Associate Judges.
Appellant Bryant Matthews was found guilty of conspiracy to commit robbery while armed, two counts of felony murder for the death of DuShawn Swann and two counts of attempted robbery while armed for the attempted robbery of Swann and his companion Jason Ingram. Matthews appeals these convictions alleging that the trial court erroneously admitted a hearsay statement of his co-defendant, that the prosecution was permitted to argue facts not in evidence in its closing, that there was insufficient evidence to convict him of the attempted armed robbery of Swann, and that the trial court improperly sentenced him because some of his convictions merge.*fn1
For the reasons stated below, we affirm on every issue but remand for resentencing.
Jason Ingram, a tattoo artist, was invited to come to 2830 Robinson Place, Southeast, to the apartment of Mary Chase, for a tattoo party during which Ingram would provide discount tattoos. Elissa Toyer resided at the apartment. On March 5, 2008, Ingram drove to Robinson Place, accompanied by his friend DuShawn Swann, who assisted Ingram at the party though he was not Ingram's employee and did not receive any compensation for his assistance. Ingram brought his own tattoo equipment and a lamp which he transported in three bags.
Throughout the evening, Ingram received cash for his tattoos, exchanging money openly at the party. He estimated that he earned $1000 during the evening. Appellant Matthews and his co-defendants, Darnell Dubose and Demetrius Stevenson, were present at the party.*fn2 At one point during the evening, Matthews requested that Ingram give him a tattoo of his birthdate and initials on his neck.
Matthews complained about Ingram's tattoo prices but still received a tattoo. Ingram spent about twenty minutes tattooing Matthews under good lighting.
Ingram and Swann left the apartment around 3:30 or 4:00 am, each carrying Ingram's tattoo equipment. As Ingram walked out the front door of the building, he saw a short, chunky man in a mask and a green coat. Thinking he was about to be robbed, Ingram ran back inside the building where, he testified, Matthews came up the stairwell from a lower floor wearing a half-mask covering his nose and mouth, wielding a baseball bat. In the well-lit hallway, Ingram tussled at arms-length with Matthews, recognizing appellant by his eyes and hair. Meanwhile, Ingram saw a taller, third assailant, also masked, push Swann up against the wall. Swann broke free and ran outside, where he was stopped by the original short, chunky assailant in the green coat. Ingram witnessed the taller assailant pursue Swann outside. Through a window in the door of the building, Ingram witnessed Swann struggle with the tall assailant for a silver revolver that had been produced. Ingram heard a shot and saw Swann fall. After the gunshot, Matthews fled back downstairs and out the building. Ingram followed.
Toyer testified that she witnessed Ingram and Swann leave the apartment after the party and then, sometime afterward, heard a shot. She went to the apartment window and saw co-defendants Dubose and Stevenson running toward her building from the opposite side of the street and then watched them turn and run down Robinson Place towards Stevenson's building at 2711 Robinson Place.
After leaving the building, Ingram was able to flag down U.S. Park Police Sgt. Michael Johnson, who testified that Ingram was "hysterical, excited[,]" and "screaming that his friend had been shot and they had been robbed." Ingram told Sgt. Johnson that the robbers were the people he had tattooed earlier in the evening. Ingram and Johnson returned to the scene of the crime before any other law enforcement personnel, and Sgt. Johnson testified that he found Swann's body face down when he arrived. That night, Ingram identified Matthews as one of the assailants, picking him out from a photo array which contained a photo of Matthews before he received the neck tattoo from Ingram. Ingram testified that he identified Matthews by his eyes and his hair.
Meanwhile, Matthews had returned to his mother's apartment. Amekia Bartley, a resident of 2711 Robinson Place and friend of Matthews's mother, arrived the morning of March 5th at Matthews's mother's apartment and told Matthews's mother that "it was the tattoo guy [who] got killed."*fn3 Matthews overheard and "looked like he was shocked to hear that." Bartley testified that Matthews calmly stated that "he didn't know that they were going to kill him, the plan was for them to rob the guy."
Around 8:00 or 9:00 that morning, Toyer was taken to the police station and spoke with the police. When she returned from the police station, she saw Dubose and Stevenson. Toyer testified in her grand jury testimony that after Dubose asked her what the police wanted to know, he said, "if the police asked [Toyer] where [Dubose] was, he was in his house with his mother asleep." Toyer spoke again with Dubose on another occasion sometime between March 5th and 16th. While speaking with Dubose, Toyer noticed a bullet hole in the door of her building and asked Dubose to stand in front of it because it made her uncomfortable. She then asked Dubose how it was that two people exited a building at the same time but only one got shot. Toyer testified that Dubose responded, "because the tattoo man got hit with a bat and ran down the bottom of our steps by going to the basement of our building." Toyer asked Dubose how he knew this, considering he had previously said he was asleep in his apartment and Dubose responded that he "was in the building across the street looking." Toyer then questioned, "but you told me you was in the house." The conversation ended at that point.
Dr. Marie-Lydie Pierre-Louis, the Chief Medical Examiner for the District of Columbia since 2004, performed Swann's autopsy. She testified that of the four gunshots to Swann, the fatal gunshot entered the left side of his chest and exited out the right side of his back. Dr. Pierre-Louis noted that the exit wound of the fatal shot exhibited "shoring," which indicated that Swann's back was against a hard surface when he was shot. Swann would have had three to five minutes of consciousness after the fatal shot. William Bruchey, a ballistics expert, testified for the defense and testified that the shoring around Swann's exit wound would be consistent with Swann being shot ...