Appeal from the Superior Court of the District of Columbia (CF1-18788-06) (The Hon. Erik P. Christian, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Submitted January 25, 2011
Before THOMPSON, Associate Judge, and FERREN and FARRELL, Senior Judges.
A jury convicted appellant Marlon Blaize of voluntary manslaughter while armed, assault with a dangerous weapon (ADW), carrying a pistol without a license, and two counts of possession of a firearm during a crime of violence (PFCV), all in connection with a shooting and subsequent hit-and-run accident that occurred in the 1400 block of Fairmont Street, N.W., on the evening of August 12, 2006. Appellant contends that the trial court plainly erred when it "failed to charge the jury . . . [that] the hit and run driver . . . was an intervening cause" of the death of the victim, Terran Miller; that the court abused its discretion in permitting a medical examiner to give her opinion that the "ultimate cause of [Miller's] death was appellant firing a gun"; that the evidence of causation was insufficient to support his conviction for voluntary manslaughter; and that his PFCV convictions merge. We disagree and affirm.
On the evening of August 12, 2006, Miller, Niam Pannell, Jenel ("London") Buie, and appellant were together on Fairmont Street, N.W., "chilling," drinking vodka, and, in the case of Miller, Pannell, and London, using drugs. According to Pannell, Miller was intoxicated and was "having difficulty walking" and was "buzzing." An argument arose between appellant and Miller. According to Kenyatta Howard, who witnessed the events from her window overlooking Fairmont Street, appellant eventually started "yelling . . . loud[ly]" and then "took [his] gun out" - a long silver revolver - and "point[ed] the gun . . . in the direction of [Miller]," "[t]oward [Miller's] chest" and "[at] his head." After Pannell tried to "separate . . . both [Miller and appellant]" and "to calm [them] down," appellant put the gun away.
As appellant was walking away, Pannell saw Miller "[come] behind [appellant] and . . . charg[e] at [appellant]."*fn1 Appellant "then took [his] gun out" and fired four to six shots in the air. Howard testified that appellant "turned and started firing his weapon toward [Miller] like target practice." She explained that appellant "was firing the gun directly at [Miller]. Wherever [Miller] went that's where [appellant] went." When the shooting began, Pannell fled the scene on his bicycle. Miller began "dodging" behind parked cars, while in a "crouching position trying to duck," and "running low [to the ground]" with his "[head] bent over." At the same time, the driver of "[a] car that was parked illegally" "got scared and just sped off of the block," traveling "80 or 90 miles [per] hour." London, who had immediately run from the sidewalk into the street when the shooting began, was almost hit by the speeding car. Miller "ran in[to] the street trying to get across to the other building" and - unlike London - actually was hit by the speeding car. London testified that "before the last two shots was [sic] fired[,] the car rolled up and [Miller] was then hit by the car and the car never stopped." She estimated that approximately "2.5 seconds" passed between the time the gun went off and Miller was hit by the car. Howard estimated the time as "five seconds."
Miller was left bleeding and motionless in the street. The driver of the car that hit him "just kept going" and never stopped. Miller was taken to Washington Hospital Center and admitted to the intensive-care unit. He died on August 18, 2006, from the injuries he sustained after being struck by the car on August 12.
A. Instruction on Causation/Insufficiency of the Evidence
During a discussion of proposed jury instructions, the trial court informed the parties that it was "inclined to just provide the first paragraph" of instruction No. 4.26 "Murder and Manslaughter - Causation," from the CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA (4th ed. rev. 2007).*fn2 Defense counsel responded, "That's fine with me."*fn3 Thereafter the trial court gave the jury an instruction that closely tracked the language of that standard instruction:
A person causes the death of another person if his actions are a substantial factor in bringing about death and if death is a reasonably foreseeable consequence of his actions.
Death is reasonably foreseeable if it is something that should have been foreseen as being reasonably related to the Defendant's actions.
Appellant now argues that the trial court plainly erred by not including in its instructions to the jury an instruction on the concepts of intervening, superseding cause, and proximate causation (instructions that appellant asserts would have enabled the jury to find that the hit-and-run driver was an intervening ...