ERIC D. FOREMAN, APPELLANT,
UNITED STATES, APPELLEE
Argued June 11, 2014
Appeal from the Superior Court of the District of Columbia. (CF1-7920-10). (Hon. Robert E. Morin, Trial Judge).
Jonathan S. Zucker for appellant.
Lauren R. Bates, 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, Stephen Gripkey, and Adrienne Dedjinou, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and REID, Senior Judge.
Reid, Senior Judge
A jury convicted appellant, Eric D. Foreman, of first-degree felony murder and other serious crimes committed in the Northwest quadrant of the District of Columbia. He (1) contends that the trial court erred by admitting as substantive evidence, under D.C. Code § 14-102 (b)(3) (2012 Repl.), Bradley Jackson's identification of him; (2) claims that the trial court committed error in responding to a note from the jury; and (3) argues that some of his convictions must be vacated on merger grounds. We discern no error in the trial court's admission of Mr. Jackson's identification of Mr. Foreman, and even assuming error, we conclude that it is highly probable that the assumed error did not contribute to the verdict. We also hold that the trial court did not abuse its discretion in responding to the jury's note. Consequently, we affirm the trial court's judgment, but we remand the case with instructions to vacate either the felony murder conviction or the first-degree murder conviction and to resentence Mr. Foreman.
The government submitted evidence concerning the random murder of Neil Godleski in Sherman Circle, around 12:35 a.m. on Sunday, August 22, 2010. Prior to the murder of Mr. Godleski, Jamal Bell, the best friend of Mr. Foreman, was killed on June 18, 2010. In addition, on August 21, 2010, Naaman Williams was shot in the leg with the same gun that caused Mr. Godleski's death.
Government witnesses included several young people who hung out together in the Petworth section of Northwest Washington, which includes Sherman Circle. These witnesses described the relationships among themselves, shootings that took place before and after Mr. Godleski's murder, the alleged relationship between the killing of Jamal Bell and the shooting of Mr. Williams, and the shooting of Mr. Godleski. The mothers of two of the young people also testified, as well as MPD personnel involved in the investigation of Mr. Godleski's murder and the shooting of Mr. Williams.  The government witnesses generally were reluctant to testify at trial and claimed that they could not recall or remember, even though they had made prior statements to the police and grand jury about the incidents that occurred on August 21 and 22, 2010.
Alexus Thorne, a senior in high school and a friend of Mr. Foreman, testified that on August 21, 2010, she, her sister Dinekia Thorne, Shamel Goodine, and Reginelle Davis had been hanging out together in Sherman Circle, celebrating Shamel's birthday. They were joined by some young men, including Mr. Foreman, Marquis (" Man-Man" ) Lee, Prince Okorie, and Bradley Jackson. She saw Mr. Williams, a former classmate, and spoke to him. As the group was crossing Sherman Circle to go to the Clark Elementary School playground, Alexus looked back and saw " a huddle around [Naaman]." " [T]hey" asked if he knew anything about " Mal" (Jamal) " getting shot."  Alexus and her group proceeded towards Clark, but Prince was " running behind [Naaman] as if he was trying to catch up with him."
As the group approached Clark, it was getting dark. Mr. Foreman, Dinekia Thorne, Bradley, and Marquis were drinking. Alexus maintained that she is " not a drinker" and " just was there, but [she] didn't have any alcohol."  Prince " had changed his shirt" and maybe his jeans. " He seemed like he was out of breath, like he couldn't catch his breath, as if he was running." He ran over to Mr. Foreman and they argued. She heard Mr. Foreman ask Prince, " So did you do it?" Mr. Foreman repeatedly said, " Did you yeah."
Prince replied, " He was running too fast. I couldn't hit him. He was running to the car. I couldn't hit him." Mr. Foreman answered, " [m]an I should never gave it to you. He [is] going to remember our face." Mr. Foreman was furious. Alexus testified before the grand jury that the word " yeah" was a " filler" -- a substitute for other words. " Yeah" meant, " [l]ike did you shoot him. Like did you hit or kill him. Stuff like that. Like did you get him."
Jeremy Bell, the twin brother of decedent Jamal Bell, claimed at trial that he did not remember events and had been " traumatized."  Consequently, the prosecutor questioned him in detail about his grand jury testimony on September 29, 2010, as he read excerpts from the transcript. The excerpts revealed that Jeremy had described the man on the bicycle to the grand jury. He had seen Mr. Foreman shoot the man. Mr. Foreman was " right next to the victim," and " he ben[t] down and picked up something." Jeremy had also testified that Bradley, J.B. and Man-Man (Marquis) were at the scene of the crime. Before he went into the grand jury, Jeremy had started to imply that he had not seen Mr. Foreman shoot the man on the bicycle. But he explained to the grand jury that he " felt [he] didn't want to be involved in much of the case."
Marquis Lee, a seventeen-year old high school drop-out who was incarcerated at the time of Mr. Foreman's trial due to an assault adjudication and revocation of probation, initially refused to participate in the trial. The trial court held him in civil contempt, and the government granted him limited immunity relating to his trial testimony.
Mr. Lee acknowledged that he had given a written, signed statement to the police in September 2010 indicating that he was on the scene when Mr. Godleski was shot, and that Mr. Foreman shot him. He adopted his written statement when he appeared before the grand jury in October 2010. Before the grand jury he testified that he saw Mr. Foreman approach the man on the bicycle " with a gun out, pointed at the guy like he was robbing him." He " saw the gun flash and Eric shooting the man." He " heard about three shots, and the guy on the bike was going down."  Mr. Lee " started walking away fast." However, during his immunized trial testimony, Mr. Lee denied that he was present when Mr. Godleski was shot. Furthermore, he claimed that he was at home all night, that Mr. Foreman came to his house with [Mr. Lee's] mother around 9:00 or 10:00 p.m. and he remained there until the next morning. But, Mr. Lee agreed that he was in Sherman Circle with Mr. Foreman earlier in the day when Naaman Williams walked through the area; Mr. Okorie and others also were there.
Mr. Lee and Mr. Foreman proceeded to Clark Elementary and Mr. Okorie " turned
around and walked off." Mr. Okorie arrived at Clark about thirty minutes to an hour later. He had changed his shirt. He said he " was following Naaman" and he " tried to shoot him." Mr. Foreman accused Mr. Okorie of being " dumb" and " stupid." He asked why Mr. Okorie " would . . . do that in broad daylight," and stated, " if you was going to do that dumb stuff in the broad daylight, you should have finished what you was trying to do." Mr. Lee understood " you should have finished what you was trying to do" to mean, " [s]hoot him. Kill him."
After leaving Clark, Mr. Foreman, Mr. Lee, and Mr. Okorie went to Mr. Jackson's home in Petworth and sat on the porch; Mr. Lee's mother, Yvette Lee, was there during the day. When Mr. Jackson's mother asked them to leave because they were so loud, Mr. Lee and the others went to an abandoned house down the street. There, Mr. Foreman asked Mr. Okorie, " Where you put the gun at?" Mr. Okorie told him not to worry, he put it in " the cut" -- meaning " a stash spot." Mr. Foreman called Prince " dumb" and Prince replied, " I don't care. They killed my man, so I don't care." Mr. Foreman and J.B. left, saying they were going to the corner store. They were gone for about thirty minutes. Prince did not leave with them.
Yvette Lee testified that she has a " close" personal relationship with Mr. Foreman, has known him for ten to twelve years, knows his family, and he calls her " Ma." Her son Marquis and one of her daughters are friends with Mr. Foreman. On August 21, 2010, she went to the home of her long-time friend, Karin Jackson, the mother of Bradley Jackson around 1:00 p.m. Marquis and one of Ms. Lee's daughters are also friends with Bradley. Ms. Lee remained at Ms. Jackson's home until around 1:00 a.m. She had been drinking and described her level of intoxication as " mellow." As she was preparing to leave Ms. Jackson's house, Mr. Foreman arrived. They began walking to Ms. Lee's home and at some point they were joined by Mr. Lee. When they reached Sherman Circle, Ms. Lee saw the yellow police tape and asked what happened. Mr. Foreman was " very intoxicated." Ms. Lee told the grand jury that as they were walking by, Mr. Foreman " grabbed" her hand and was " squeezing it." Mr. Foreman said, " Ma, I know who did that." " I did it." But he then said he was " just playing," and he was " laughing." At trial, Ms. Lee claimed that she " did not say that," although she agreed that the prosecutor read the grand jury transcript accurately.
Reginelle Davis, a high school graduate, also lived in the Petworth area. She attended middle school with Mr. Foreman. Jamal Bell was her best friend and he ...