JOSEPH JENKINS, EDWARD E. WARREN, DARNELL N. ANDERSON, & JAMES BATES, APPELLANTS,
UNITED STATES, APPELLEE
Argued February 12, 2015
[Copyrighted Material Omitted]
This is an unpublished decision under D.C.App. R. 28 (h) and is of no precedential value except when used under res judicata, collateral estoppel, in a criminal action against same defendant or in a disciplinary action against the same respondent.
Appeals from the Superior Court of the District of Columbia. (CF1-30319-08, CF1-20614-09, CF1-20672-09, & CF1-29847-08). (Hon. Lynn Leibovitz, Trial Judge).
Thomas T. Heslep for appellant Jenkins.
Gregory S. Smith for appellant Warren.
Jason M. Knott, with whom William W. Taylor III was on the brief, for appellant Anderson.
Thomas C. Paynter for appellant Bates.
John P. Gidez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and David P. Saybolt, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, and PRYOR and FARRELL, Senior Judges.
Farrell, Senior Judge.
Appellants collectively were indicted for a series of violent crimes and related other offenses arising from what the government alleged was a conspiracy to retaliate against a rival " crew" or street gang primarily for the shooting death of William " Boo" Foster, a leader of the so-called Todd Place Crew (or " TPC" ) of which appellants were members.
The jury acquitted appellants of the conspiracy and declined as well to convict them based on related vicarious liability principles. Instead it convicted them of substantive crimes as follows: Jenkins, Bates, and Anderson were found guilty of the April 15, 2008, premeditated murder of Gary English and assault with a dangerous weapon on bystander John Green; Jenkins and Anderson, but not Bates, were convicted of related firearms offenses. Jenkins and Warren were found guilty of carrying
a pistol without a license on May 10, 2008, and Jenkins of possession of a firearm by a convicted felon (PFCV), but both were acquitted of the associated shooting of Antonio Ingram on that date. Bates was further convicted of armed assault with intent to kill and armed aggravated assault on Chaquon Wingard and Ricardo Russell on May 26, 2008, and of related gun charges. And all four appellants were found guilty of committing each of the above crimes as part of their membership or active participation in a " criminal street gang." D.C. Code § 22-951 (a)(1) (2014 cum. supp.).
Although appellants assign multiple errors as a basis for reversal of their convictions, none persuades us except that some of the convictions merged and must be vacated on remand.
I. The Facts
The victims of all of the alleged shootings, except for John Green, were shown to be members of the rival T Street Crew (" or TSC" ), which the Todd Place Crew held responsible for the killing of William Foster. The two crews, while engaged in drug trafficking in their respective neighborhoods, had begun " beefing" by 2008, with frequent altercations and assaults that came to a head on April 14, 2008, when Foster was shot to death by someone the TPC believed was associated with the T Street Crew. According to Robert Davenport, a TPC insider who testified for the government, there was an immediate " mutual understanding within the [TPC]" that a TSC member would be killed in retaliation.
The day after the shooting, Davenport testified, TPC members gathered at the house of crew member Ernest Benjamin. Having learned the location of a TSC member, they left the house in two cars, with Bates driving and Anderson and Jenkins occupying the first vehicle, a white Chevrolet HHR or PT Cruiser. (All three defendants had been seen in that car earlier the same day.) An eyewitness who knew Bates, Raymond Devese, saw him at the wheel of the car as it pulled up to where TSC member Gary English had just parked his car. Multiple gunshots from two handguns, a .45 caliber Sturm Ruger semi-automatic and a Hi-Point .45 caliber, were fired from the white car, striking English repeatedly and killing him, and grazing Green, a bystander.
According to Davenport, he and the three other occupants (including appellant Warren) of the second car, a blue Mercury Grand Marquis, arrived after the white car had fled the shooting scene. When they returned to Benjamin's house Bates, Anderson, and Jenkins were there and Anderson gestured with a Ruger .45 caliber pistol as if to say " we just got finished shooting at somebody."  Bates appeared nervous and concerned that eyewitness Devese had seen his face. Davenport and the others " didn't feel as though it was settled" with the English shooting, and Davenport believed a " lot more had to take place."
Further evidence linking Jenkins and Anderson to the English homicide and Green assault came from two related sources. In the week or so after the homicide, police recovered the two handguns used in the shootings from the ground inside the fence line of Mount Olivet Cemetery in the District. This occurred after Davenport, Anderson, Warren, and co-defendant Obie English, riding in the Grand Marquis and armed with pistols, found themselves pursued by police near the cemetery. Davenport and Anderson bailed out of the car, and as they ran a police officer chasing them saw each man reach toward his waist and toss an object. In a later recorded telephone call from jail after his arrest, Anderson expressed concern to Jenkins about the guns, and when Jenkins stated that he had " tried to go back" to find the guns, Anderson replied that the police had " scooped them." A week later Anderson complained in a recorded call that Warren had not " even go[ne] back . . . [to] look for" the gun Warren had thrown into the cemetery and which the police had also recovered. Warren " was suppose[d] to go back . . . and . . . scoop that [gun]," Anderson stated, to which Jenkins replied, " [W]e did, [but] it wasn't there."
On May 10, 2008, Antonio Ingram, a member of the T Street Crew, was shot repeatedly in an altercation in which Warren was also shot. Jenkins confessed to his sister that Warren had been leaving a carry-out when " somebody started shooting," so Jenkins returned fire. Although the government saw the Ingram shooting as a second retaliation for the Foster homicide, the jury convicted both Jenkins and Warren of only weapons offenses and related street gang charges, evidently accepting their partial defense that regardless of what motivated them to bring guns to the scene, Ingram was shot in self-defense.
Finally, Bates was found guilty of shooting TSC members Ricardo Russell and Chaquon Wingard from a dark-colored car on May 26, 2008, based on testimony by Jamila Hughes -- admitted without objection -- that she was present and heard the gunshots, then overheard Russell say that Bates had been the shooter.
II. Severance of Defendants
Before trial, appellant Warren gave written statements to codefendants Bates, Jenkins, and English claiming that he, not they, had been in the white car on April 15 and shot English with a Ruger .45 caliber pistol. Warren then took the stand in the defense case and " admit[ted] to shooting and killing Gary English" because, he said, English had " sold [him] a gun that didn't work." An unnamed man Warren did not know had driven Davenport and himself to the scene, where both fired shots at English. Although Warren did not say so expressly, the implication of his testimony was that none of the defendants except himself took part in the shooting.
Warren's attorney, Michael Madden, along with the other defense counsel, had aggressively ...