DONELL R. WASHINGTON, APPELLANT,
UNITED STATES, APPELLEE
Argued November 6, 2014.
Appeal from the Superior Court of the District of Columbia. (CF1-13430-10). (Hon. Russell F. Canan, Trial Judge).
Daniel Gonen, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.
Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Glenn L. Kirschner, Kathryn L. Rakoczy, and John Giovannelli, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER, Senior Judge.
Nebeker, Senior Judge :
Appellant Donell R. Washington appeals his convictions at a jury trial of first-degree murder while armed and related offenses. On appeal, he contends that the trial court abused its discretion in two respects: (1) by refusing to issue a missing evidence instruction following the government's loss of DNA swabs prior to trial; and (2) delivering a concurrent intent jury instruction with respect to the AWIKWA charges. Having concluded that the DNA swabs lost by the government amounted to no more than potential evidence and that the trial court did not err in issuing a concurrent intent jury instruction, we affirm appellant's convictions.
The victim, Stanley Dawson, was killed during the late night hours of July 8, 2010. He was gunned down at a neighborhood playground in the Southeast quadrant of the District of Columbia. Evidence at trial showed that appellant approached Dawson, who was standing with three other individuals on the playground, and fired off as many as ten .40-caliber rounds at the group. Dawson was killed, and two others suffered gunshot wounds.
Testimony elicited at trial suggested that the shooting arose from a confrontation between Dawson, appellant, and Marcus Snell--appellant's close friend--on July 4, 2010. On that date, neighborhood
residents and families were outside celebrating the holiday when Snell, holding a handgun he acquired from appellant, fired four or five rounds into the air. Dawson immediately approached appellant and Snell, admonished Snell for firing a gun when there were children around, and took possession of the firearm.
On the night of July 8, Dawson was at a neighborhood playground with friends Kawan McCoy and Eric Henderson. Two more of Dawson's friends, Antonio Carroll and James Scott (" L.J." ), parked their car near the playground and joined the group, now five strong. Carroll left to purchase cigarettes from Henderson's father in a nearby building; he was not present at the playground when the shooting occurred. McCoy then left the playground to purchase a cigarette and some food from Henderson's father, but returned from the excursion prior to the shooting. McCoy testified that as he was standing next to Dawson, a man turned on to the footpath that ran past the playground that Dawson, McCoy, and the others were occupying. McCoy then observed the man, later identified as appellant, step " into the [street] light," and saw that the shooter was wearing a black bandana tied around the lower half of his face. Appellant then began shooting at Dawson, firing off " more than five" rounds.
After the shots were fired, " everybody ran" from the playground. Scott's left foot was struck by a bullet, and one bullet grazed his nose. Henderson was shot in his left forearm and buttocks. Dawson was struck in his face and upper back, and was discovered a short distance from the playground by an off-duty Metropolitan Police Department (MPD) officer working neighborhood security. Dawson died after being transported to a local hospital.
Andrea Williams lived in a single-family home located one street over from the playground where the shooting occurred. Williams testified that immediately after the shots stopped, she went to her window and saw a black male--approximately six feet tall, with a thin build, and wearing all black clothing--running across the street, but not from the direction of the playground. As the man approached her house, Williams moved to a back window in her home and observed the unidentified man attempt to scale the fence attached to her house by putting " his hands on [it]." Williams was not able to ...