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Terry v. United States

Court of Appeals of Columbia District

May 11, 2015


Argued,  February 19, 2014

Decided April 30, 2015

Amended May 11, 2015.[*]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Opinion withdrawn by, Substituted opinion at Robin v. United States, (D.C., June 5, 2015)

Appeals from the Superior Court of the District of Columbia. (CF2-11468-09 & CF2-11466-09). (Hon. Ann O'Regan Keary, Trial Judge).

Jonathan S. Zucker, with whom Patricia Daus was on the brief, for appellant DeAngelo Coderro Terry.

Benjamin Brooks for appellant Billy A. Robin.

David P. Saybolt, Assistant United States Attorney, with whom Ronald C. Machen Jr, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Maia Luckner Miller, and Suzanne Clement Libby, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and RUIZ, Senior Judge.


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Washington, Chief Judge

Appellants DeAngelo Coderro Terry (" Terry" ) and Billy A. Robin (" Robin" ) appeal from their convictions for four counts of aggravated assault while armed (" AAWA" ).[1] Terry also appeals from his convictions for four counts of possession of a firearm during a crime of violence (" PFCV" ).[2] Appellants' convictions stem from a shooting that occurred on May 19, 2009, around 4:30 p.m., on North Capitol Street in Northwest Washington, D.C., during which Jameeka Washington (" Washington" ), Chaquon Wingard (" Kwame Wingard" ), Antione Clipper (" Clipper" ), and Tyrique Williams (" Williams" ) were shot. Both appellants argue that there is insufficient evidence to support the " serious bodily injury" element of two of their AAWA convictions (with respect to victims Clipper and Williams) and contend that they were prejudiced by the government's suppression of Brady material that was not turned over until the beginning of trial. Both appellants also argue that the trial court abused its discretion in admitting two specific pieces of testimony, the probative value of which was substantially outweighed by the danger of unfair prejudice. Separately, Robin contends that there was insufficient evidence to support the " intent" element for all four of his AAWA convictions, to the extent that he was convicted under an accomplice liability theory, and he also argues that certain inculpatory statements that Terry made to the government's cooperating witness were improperly admitted against him. Finally, Terry argues that his four convictions for PFCV should merge into one. We affirm in part and remand in part.

I. Facts

On May 19, 2009, around 4:00 p.m., victims Washington, Wingard, Clipper, and Williams were standing with a group of

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friends on North Capitol Street between R Street and Randolph Place, N.W. Shortly after 4:00 p.m., Clipper crossed North Capitol Street to go to the liquor store on the southeast corner of North Capitol and R Streets. When he exited the store, he saw Wingard standing in front of a carryout store on the northeast corner of North Capitol and R Streets. He observed Terry, driving a gray Camry with two or three other passengers, go north on North Capitol Street, turn right onto R Street, where Wingard was standing, and stop at the light on Lincoln Road, close to the carryout. Clipper saw Wingard staring at the car. Both men then returned to their group.

Shortly thereafter, a tan Explorer driving south on North Capitol Street, which contained two males and two females, passed the group. One of the females, " Rakiya," stuck her head out the window, said " fuck you[,] Jameeka," and gave her the finger. Washington laughed it off, explaining at trial that she and Rakiya had previously been in fist-fights over a boy named Quinton, but that she had not seen Rakiya in a year and did not think they were still in a fight.

At approximately 4:20 p.m., a black male walked southbound on North Capitol Street toward Washington's group. He pulled a black ski mask over his face with one hand as he walked, and raised a gun with his other. When the shooter was about fifty feet from the group, he fired a volley of about ten shots. Clipper was hit in the leg but was able to hop to the median strip in North Capitol Street where he collapsed. Another member of the group arched his back as though he was hit. The shooter then took several " deliberate" steps toward the group and fired a second volley of shots.[3] When he was finished, the shooter ran back toward Randolph Place.

Washington was talking on her cell phone when the first volley of shots was fired. She returned to her conversation, heard more " pops," then turned around and saw everyone running away. Washington ran towards her car on R Street to get away, but was shot four times--in the chest, wrist, and ankle. Wingard, who was near Washington, tried to move both of them out of the shooter's way. Wingard was shot three times in the forehead. After the shooting, Washington collapsed near Wingard in front of the church on the northwest corner of North Capitol and R Streets. Clipper had collapsed in the median; he had been shot in the left shin and the left foot, and the bullet to his left shin had broken his fibula or tibia.[4] Williams collapsed in front of the carryout with two gunshot wounds to his left forearm and two to his chest, near his collarbone. Fifteen 9 mm shell casings, all fired from the same gun, were later recovered from the scene.

Three Metropolitan Police Department (" MPD" ) officers, Francisco Montano, Christopher Cartwright, and Brian Hollan, were executing a search warrant in an unrelated matter one block north of the scene when they heard the gunshots on North Capitol Street. Officer Montano ran out and saw Ronald Taylor, who was napping in his truck on Randolph Place, when the shooting occurred, pointing " hysterically" at a red van that was heading west down Randolph Place towards First Street, N.W. Taylor told Officer Montano that the van had just been involved in the

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shooting. Meanwhile, Officers Cartwright and Hollan arrived in an unmarked police car while the van was still on the block and a chase ensued. The van turned right onto First Street heading north, and though the officers turned on their emergency equipment, the van did not stop. The chase continued for twenty to twenty-five minutes, and ultimately involved over twenty police cars. During the chase, the police lost sight of the van for a matter of seconds when it went behind the attendant's booth at a Chevron gas station at 6250 Belcrest Road in Maryland. Police described the van as driving recklessly, at highway speeds through residential streets, sometimes driving into oncoming traffic.

When the van finally crashed into several parked cars in Hyattsville, Maryland, police found appellant Robin in the driver's seat, Terry in the passenger seat, and co-defendant Deandre Banks (" Banks" )[5] in the backseat. As police pulled Robin from the car, Robin tossed a black knit ski mask under the van. DNA analysis revealed that there was genetic material from three or more individuals on the ski mask, and Robin and Terry could not be excluded as the source of that material--a random match probability for both men was one out of 25,000 in the African-American community. The van was a stolen Dodge Caravan. After the three men were arrested, police recovered a second black knit ski mask and hat, as well as a black silk hat, from behind the attendant's booth at the Chevron gas station. DNA analysis of the black knit hat and ski mask matched Terry, and DNA on the black silk hat matched Banks. Police never recovered the gun used in the shooting.

Police photographed Terry, Robin, and Banks to document what each was wearing that day. All three photographs were presented as exhibits at trial. Terry was wearing a black T-shirt and light blue jeans. Terry's blue jeans had a pattern embroidered on the seat. Terry was a 5'11" tall, medium-complected black male with shoulder-length dreadlocks or braids and a light mustache. Robin was wearing a green long-sleeved dress shirt and had a bandage on his face. He was a black male with a medium complexion, a stocky build, short hair, and a mustache. Banks was wearing a black T-shirt with white writing that was turned inside out, and dark jeans. Banks was 6'3" tall with short hair, a short beard, and a mustache. He was also a black male with a medium complexion.

At trial, victims Washington, Wingard, and Clipper testified about the shooting and the injuries they suffered. Williams did not testify, though the government called the physician who treated him at the hospital to testify to the extent of his injuries. The jury also heard testimony from several officers involved in the car chase, four eyewitnesses to the shooting, a cooperating government witness, Keith Daniels (" Daniels" ), to whom Terry had allegedly made inculpatory statements in the days after the shooting, and two defense witnesses called to impeach Daniels' testimony. The government also presented physical evidence in the form of the DNA analyses that linked Terry, Robin, and Banks to the ski masks and black hat in the van.

In particular, Daniels, who was Terry's next door neighbor, testified that several days after the shooting Terry came over to his house and told him, in the presence of his nephews, that not only had he been

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involved in the shooting, but also why he thought he might get away with it. Terry was impeached with a cooperation agreement that he entered into in this case, his prior convictions for three different assaults, including AWIKWA, and his admission to having previously cooperated with the government in another homicide case involving Curtis Bunn, a witness for the defense, in this case.

II. Sufficiency of the Evidence

A. Sufficiency of the Evidence with Respect to Robin's AAWA Convictions as an Aider and Abettor

This court has previously clarified that in order to prove a defendant guilty of AAWA under an aiding and abetting theory, the government must prove beyond a reasonable doubt that the defendant had the requisite mens rea to commit the crime.

[W]hen the government prosecutes a defendant under an aiding and abetting theory of criminal liability, in addition to proving that the aider and abettor " participated" in the assault, the government must prove also that the aider and abettor himself intended to cause serious bodily injury or acted with extreme indifference to human life because he knew either that the principal would commit an assault with such intent, or that the principal would intentionally engage in an assaultive act that actually created a grave risk of serious bodily injury.

Perry v. United States, 36 A.3d 799, 817 (D.C. 2011).

This court has dealt with the issue of whether there was sufficient evidence from which a jury could conclude that a defendant had the requisite intent to have " aided and abetted" the principal perpetrator of a crime on several occasions. For example, we have found insufficient evidence to convict a defendant as an aider and abettor after the defendant testified that he did not know that the principal had just committed a robbery when there was evidence that after he picked the principal up in his car, the defendant drove away at a normal speed, pulled over when the police signaled, and cooperated with police. See Clark v. United States, 418 A.2d 1059, 1061-62 (D.C. 1980). We also held that there was insufficient evidence to convict the defendant as an aider and abettor in Quarles v. United States, 308 A.2d 773, 774 (D.C. 1973), where the defendant was present on a bus when the principal committed petit larceny, remained on the bus after the theft to cooperate with police, and was not found to have the victim's wallet on his person. In Quarles, there was also no evidence of any communication or connection between the defendant and the thief--they were never seen together before the theft or connected in any other way. 308 A.2d at 775.

On the other hand, this court found that there was sufficient evidence from which a reasonable juror could convict the defendant of aiding and abetting an armed robbery in Carter v. United States, 957 A.2d 9 (D.C. 2008). In that case, the evidence showed that at the time of the incident, a gray Mazda with distinctive tinted windows was parked on the street, which neighbors found unusual as generally only residents parked on the block and they had never seen the car before. 957 A.2d at 9. A gunshot went off, the gray Mazda pulled away, and a voice from the direction of the vehicle was heard saying, " Go man go." Id. The shooter jogged in the same direction behind the Mazda, and a short time later, Carter was seen ...

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