Ellsworth W. Colbert, Appellant,
United States, Appellee.
Argued June 23, 2015
Appeal from the Superior Court of the District of Columbia (CF1-3958-12) Hon. Herbert B. Dixon, Jr., Trial Judge
Jenifer Wicks for appellant.
Patricia A. Heffernan, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Edward O'Connell, Assistant United States Attorneys, were on the brief, for appellee.
Before Thompson and Beckwith, Associate Judges, and Newman, Senior Judge.
Thompson, Associate Judge:
After a jury trial, appellant Ellsworth Colbert was convicted of manslaughter while armed, assault with a dangerous weapon (knife) ("ADW"), and carrying a dangerous weapon (knife) ("CDW"). On appeal, he argues that he did not receive a fair trial because the government was not required to disclose a police file, obtained mid-trial, pertaining to the decedent's out-of-state conviction for assault. Appellant also assigns as error an instruction the trial court gave in response to a question from the jury. For the following reasons, we affirm.
The jury heard the following evidence: On the morning of March 4, 2012, the decedent, Robert Wright, was walking his friend's dog. He was accompanied by another friend, Anthony Davis. Davis testified as follows. As he and Wright were passing appellant's home, the dog, still on its leash, walked into appellant's front yard. In response, appellant came out of his house, walked up to the other two men in an "aggressive" manner, and asked, "[D]id your dog sh*t in my yard[?]" Appellant was holding a walking stick at the time. Pulling out a knife, appellant then said, "[I]s this your dog? I'm going to kill this motherf*cker." Davis described the blade as serrated and about two inches long.
At this point, Wright told appellant that the dog belonged to a nearby neighbor, Sean Hurd. According to Davis, appellant then walked ahead to Hurd's home, "bang[ed]" on the door, and confronted Hurd on his front porch. Davis and Wright trailed behind. From across the street, Davis heard appellant tell Hurd, "[D]on't have your dog sh*tting in my yard."
A car was parked in Hurd's driveway. Wright began walking along the right side of the driveway, as if to take the dog around the side of the house to the backyard, while appellant and Hurd were still having an "animated talk" on the other side of the car, near the front door. When Wright reached the top of the stairway that led down the side of the house to Hurd's backyard, he told appellant "[s]omething along the lines of . . .
'the dog didn't shit in your yard, you dumb *ss.'" Appellant turned and approached Wright. Wright "possibly" made another comment that Davis did not hear, and then, "all of a sudden[, ]" appellant began "throwing punches in the back of" Wright's head. Davis did not see a knife in appellant's hand at that point, but appellant was still carrying his walking stick.
Wright eventually retreated down the steps around the house, and appellant began to walk away, back down the driveway. A few seconds later, Wright came back up the steps, carrying a shovel. At this point, appellant, who by now was in the middle of the street, said, "I'm going to get my son to kick your *ss, Rob [Wright]." Wright, with shovel in hand, walked past Davis, who was standing in the driveway, and Davis noticed a "gash mark" on Wright's neck, which had not been there earlier in the morning. Wright continued into the street, where appellant had turned around to face him.
Wright, holding the shovel with his hands apart, first used it in a "defensive manner" while appellant, who was still holding his walking stick (and, Davis presumed, his knife as well, as Davis had never seen him put it away), was "swinging" his arms. Then Wright began using the shovel in a "jousting" motion and hit appellant about the head and shoulders, leaving a "red blood spot on [appellant's] head on the right side." During this same interval, appellant hit Wright "on his head, his shoulder, [and] around the upper torso area" with his walking stick.
As appellant and Wright were "grappling" with each other, they moved out of Davis's view, behind a large bush planted in the front yard. They remained behind the bush for "about two minutes, " in Davis's estimation, and then Wright alone, without the shovel, came back into view and stumbled to the ground. Appellant said, "[C]ome on, man, come on[, ]" and Wright got back up, only to "hiccup" and "f[a]ll face flat on the ground" without breaking his fall. Appellant walked back to his house.
Hurd, who had watched the fight from beside his front porch, corroborated key aspects of Davis's testimony. He said that he was already on his front porch when he saw Wright and Davis approaching, with appellant a few feet behind them. Appellant was carrying a walking stick and a "little switchblade knife." He looked "angry" and "upset." Upon approaching within a few feet of Hurd, appellant said, "[D]on't let this motherf*cker walk your dog. He [is] irresponsible. This dog [has] been sh*tting in my yard. . . . I was about to stab this dog and this mother*cker right here[.]" Wright and appellant exchanged words, which included Wright saying, "[Y]ou and your son don't even keep up with each [other.]" This comment seemed to "upset" appellant, and he "swung [his] knife at" Wright's neck.
Hurd saw Wright drop the dog's leash and go around the side of the house. Appellant began to walk away, as if back to his house, while repeatedly saying, "I'm going to get my son to f*ck you up, Rob." Wright then re-appeared with a shovel, walked after appellant, and the two "squared off" in the middle of the street. Although by this point Hurd could not see a knife in appellant's hand, he also had not seen appellant put away the knife he was holding earlier.
Wright and appellant swung at each other simultaneously, Wright with the shovel, appellant with his walking stick. Appellant then "rushed" Wright, causing Wright to drop the shovel, and "they both fell on the ground" and behind a bush, out of Hurd's sight. From what Hurd heard, the two continued to "tussle" for "a few seconds[.]" Then, Hurd saw appellant emerge from behind the bush and start walking back down the street to his house. As he did so, appellant repeatedly said, "I told you not to f*ck with me." Wright, meanwhile, had begun to walk back to Hurd's driveway with a "blank look on his face." He said, "[A]re you going to stab [me], though?" Then he fell.
Testimony from medical experts revealed that Wright had been stabbed eight times. He had a one-and-three-quarter-inch wound in the left side of his neck, a four-inch-deep stab wound in his right chest (which pierced the aorta and the pericardial sack encompassing the heart), a one-and-a-half-inch-deep stab wound in his left abdomen, a one-and-three-quarters-inch-deep stab wound in his left back (which fractured the ninth thoracic vertebra), and four cutting wounds on his left wrist and hand. Although Hurd called 911 ...