Appeals from the Superior Court of the District of Columbia (F-2985-02 & F-2982-02) (Hon. Patricia A. Broderick, Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge, Retired:
Before GLICKMAN, Associate Judge, RUIZ, Associate Judge, Retired,*fn1 and TERRY, Senior Judge.
Kevin Dobbins and Darion Ingram were each convicted after a lengthy trial of two counts of unarmed second-degree murder, D.C. Code § 22-2103 (2001), as lesser-included offenses of armed first-degree (premeditated) murder and first-degree (felony) murder, in connection with the killing of Kenneth Muldrow, who died after he was viciously beaten and sexually assaulted.*fn2
Appellants Dobbins and Ingram raise several claims of trial court error, none of which, we hold, prejudiced them so as to warrant reversal of their convictions. (1) Dobbins argues that the trial court should have severed his trial from his co-defendants or redacted a confession Baxter made that inculpated Dobbins before it was introduced at their joint trial;
(2) Ingram and Dobbins argue that the trial court's erroneous aiding and abetting jury instruction allowed the jury to convict them of second-degree murder without finding that they possessed the necessary mens rea; (3) Ingram argues that the trial court erred when it denied his motion for a new trial after he proffered newly discovered evidence that a co- defendant, whose acquittal removed his Fifth Amendment privilege, was willing to testify that Ingram was not involved in Muldrow's murder. Finally, both appellants argue that their two second-degree murder convictions merge.
We affirm, but remand the case for vacation of the duplicative convictions and re-sentencing because, as the government concedes, appellants cannot stand convicted of two murders for the killing of one person.
A. The Government's Evidence.
On the night of December 8, 2000, Kenneth Muldrow was murdered by a group of men who brutally beat and sexually assaulted him over the span of approximately forty-five minutes. Muldrow was 19 years old, a special needs student who had recently been hospitalized for head trauma. Baxter approached Muldrow as he and a companion, Franklin Boyd, were walking toward the Benning Road, N.E. Metro stop. Boyd testified that Baxter accused Muldrow of stealing his "stash" and then told him that he would have to pay or fight him. Muldrow, distressed, confused, and unable to speak coherently, responded he did not know what Baxter was talking about. Baxter struck Muldrow in the head with a bottle of "Remy" liquor, and after Muldrow collapsed to the ground, Baxter punched him in the face. Boyd saw a second person punch Muldrow, a third person kick him, and then heard members of a gathering crowd telling Baxter, "that's what you was talking about, that's the nigger that owe you."
In addition to Boyd, eight witnesses testified at trial about the brutal attack on Muldrow: Carlos Hawkins, Ray Williamson, Tanya Mathis, Gale Turner, Jacqueline Pollard, Duane Hankins, Michelle Tingling-Clemmons, and Stephanie Lewis. Hawkins lived in the first floor apartment located at 4607 Central Avenue N.E., and on the evening of December 8, 2000, he was sitting in his living room when he heard "a lot of commotion" outside. He looked out of a window and saw Ingram and Dobbins beating a man of "small stature."*fn3
According to Hawkins, Dobbins and Ingram were "wildly punching and kicking" the victim, who was not fighting back. Hawkins left his window to call the police. When Hawkins returned to the living room window, the attack had moved closer to his apartment. Three people - Hawkins identified them as Dobbins, Ingram and Baxter - continued to "punch and beat" Muldrow. Hawkins briefly left the window to make a second phone call to the police. When Hawkins returned to the window, he saw that Baxter, Dobbins, and Ingram were punching and kicking the victim on the ground right below Hawkins's air conditioning unit. The force of the blows was causing the air conditioning unit to vibrate. Hawkins left the window to make a third and final phone call to the police. Hawkins then heard Baxter ask, "where was the pole at . . . he was going to show people how he do [with] people who fuck with his stash and his money." A few seconds of silence followed and Hawkins heard "the boy say 'Oh God' and take his last breath." Baxter said: "[I]t's up in there, joint up in there," and then, "let me wipe this pole off." A short time later, officers from the D.C. Metropolitan Police Department arrived on the scene. Hawkins came out of his apartment and saw Muldrow lying on the ground, under the window of his apartment, in the same location where he had seen Baxter, Dobbins, and Ingram stomping and kicking him. Muldrow's inert body was "bloody with the pole stuck out of his anus."
Around 10:30 p.m. on the evening Muldrow was beaten and killed, Ray
Williamson was parking his car on his way to Charles Simpkins's
apartment in the building next door to Hawkins, at 4609 Central
Avenue, N.E., when he noticed three or four young men "stomping
something in the shrubberies" near Smith's apartment.*fn4
Williamson watched from his car, which was about twenty to
thirty feet away from the group, and at first thought the men at the
wall had cornered a rat and were killing it; however, he then saw a
man (Muldrow) stand up from the ground, apparently dazed, attempting
to raise his hands and defend himself.
Williamson testified that a man then walked up to Muldrow and punched him in the face, causing him to fall back down to the ground. One of the men continued to kick and stomp the man on the ground for approximately ninety seconds, and then stopped and walked to and from a nearby alley, twice passing within a few feet of Williamson's car. Williamson identified that man in court as Baxter. Williamson testified that Baxter then retrieved a trash can, and used it to strike Muldrow at least twice. Baxter then went into the apartment building, returned a few seconds later carrying a metal pole, and hit Muldrow several times with the pole. Williamson got out of his car and went into Smith's apartment, attempting to not make eye contact with the men. Williamson heard someone say that they could not leave the body on the sidewalk and saw two men dragging the body back toward the building.
Four persons who were at Charles Simpkins's apartment that night -
Tanya Mathis, Gale Turner, Jacqueline Pollard, and Duane Hankins -
testified that they saw part of the attack or its immediate aftermath.
Mathis*fn5 testified that she was sitting in the
living room with a group of people when Dobbins came in and said that
Muldrow was outside. Baxter and Ingram immediately left the apartment
upon hearing this news. Mathis watched from the doorway, and saw
Baxter hit Muldrow on the side of the head with an empty
bottle and then punch him three times with his fist.*fn6
Muldrow, who did not fight back, fell to the ground. Baxter
then dragged Muldrow over to an area of bushes by the side of the
apartment building. Baxter returned to Simpkins's apartment, picked up
a bluish-green glass lamp, and struck Muldrow three or four times in
the head. Mathis testified that Muldrow's face was cut and bloody, and
he was moaning. Baxter then came back into the apartment, grabbed an
"upright vacuum cleaner" from behind a door, and used it to strike
Muldrow three or four times in the head and face. Baxter dragged
Muldrow to the sidewalk, went over to a nearby alley, picked up a
green plastic bucket, used it to strike Muldrow in the face about four
times, and then dragged Muldrow back to the bushes where he continued
to punch and kick him in the face. At this point,she saw Lamont Kenney
hit Muldrow "a couple of times" in the face with his fist, and Dobbins
hit Muldrow "about four times" and then kick him in the face. Mathis
then retreated into the living room of the apartment, sat on a couch
facing away from the windows, and did not look out again to see the
rest of the attack. She did, however, see Baxter come into the
apartment again, get a "yellow stick," and go back outside. After five
to fifteen minutes, Baxter returned to the apartment with what
appeared to Mathis to be blood on his hands. After Baxter washed his
hands in the bathroom, he left the apartment through the back door.
Mathis woke Gale Turner,*fn7 telling her that "they"
beaten someone up outside and it would be best to leave before the
police got there. Mathis and Turner, accompanied by Pollard, left the
apartment through the back door.
A few days after the murder, Mathis testified, Baxter told her that "Kenny took a stash from me so that's why I did him like that." Around the same time, Mathis noticed that Baxter was wearing sneakers she had seen him remove from Muldrow's feet during the attack. Mathis also noticed that during this time period, Baxter would occasionally run around holding a stick in front of the area of his genitalia and laugh.
Jacqueline Pollard had known Muldrow from the time that he was nine years old. She was a frequent visitor to Simpkins's apartment and was familiar with Baxter, Ingram and Dobbins. She testified that on December 8, 2000, she was at Simpkins's apartment with appellants and a number of other people when Dobbins came into the apartment and said something to Baxter about Muldrow stealing his "stash." Pollard remembered that approximately two months earlier, she had seen Ingram and two of his brothers in a confrontation with Muldrow during which Ingram called Muldrow a "bitch." After Dobbins notified everyone that Muldrow was outside, Baxter, Ingram and Matthew Ingram left the apartment.*fn8 Pollard went to the front porch of the apartment and saw Baxter, Ingram, and Matthew Ingram striking and kicking Muldrow while he was on the ground as the crowd around Muldrow screamed "bitch, mother-fucker, punk." She saw Muldrow's teeth "c[o]me all out ...