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Shepherd v. United States

Court of Appeals of Columbia District

August 4, 2016

DAVID A. SHEPHERD, Appellant,
v.
UNITED STATES, Appellee.

          Argued April 13, 2016

         Appeal from the Superior Court of the District of Columbia Criminal Division (CF1-9602-12) Hon. Russell F. Canan, Trial Judge)

          Joshua Deahl, Public Defender Service, with whom James Klein and Jonathan Anderson, Public Defender Service, were on the brief, for appellant.

          Anne Y. Park, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Fisher and Thompson, Associate Judges; and Pryor, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDER ED and ADJUDGED that the matter on appeal is affirmed.

          OPINION

          JOHN R. FISHER ASSOCIATE JUDGE.

         Appellant David Shepherd appeals his convictions related to the shooting death of Henry Miller. He contends that the trial court erred by excluding details of Miller's past assault on an ex-girlfriend. Appellant also argues that the trial court erred by leaving the record uncorrected after the government mischaracterized the evidence in rebuttal argument. We hold that the trial court did not abuse its discretion with respect to the prior act of violence and, although the prosecutor misstated certain evidence, the misstatements did not substantially prejudice appellant. Accordingly, we affirm.

         I. Background

         On June 2, 2012, appellant David Shepherd agreed to help his coworker James Ingram and Ingram's wife, Jayda Ingram, move. James and appellant worked together at Bowie Lawn Service, and, from 10 a.m. to 10 p.m., they used two of the company's white work trucks to move the Ingrams' possessions. During that time, appellant spoke to Jayda about some personal issues he was having with his wife. After appellant and the Ingrams parted ways, James and Jayda picked up James's first cousin, Henry Charles Miller ("Chuck" or "Miller"), from his home in southeast D.C. They drove to a liquor store where they purchased some vodka and then drove to 1128 Chicago Street, S.E. - arriving around 11 p.m. - after James received a call from one of his tenants there.

         When Jayda pulled up to 1128 Chicago Street, the white work truck that appellant had been driving earlier in the day was parked out front. After helping the Ingrams, appellant had gone to the house to socialize with some of the tenants with whom he was friends. During that time, appellant also called his wife, "got a little agitated, " said "something like 'I should kill her, '" and then later said "I keep it with me." The tenant who heard these statements did not remember how much time separated "I should kill her" from "I keep it with me" and did not understand what appellant meant.

         After James and Chuck got out of the truck, James went into the house and Milton Dickerson (one of the tenants, who was "like an uncle" to Jayda) came to sit next to her in the passenger side of the truck. Jayda "started to pull out drinks" and poured one each for herself, Chuck, and Milton. A couple of minutes later, Chuck followed James into the house to look for cigarettes, and appellant joined the "social atmosphere near the truck."

         Appellant stood outside the truck by the passenger side door, and "started to elaborate [to Jayda] . . . about the [upsetting] situation . . . going on between him and his [wife]." Shortly thereafter, Chuck returned, stood "directly behind [appellant], and said 'excuse me'" because, according to Jayda's testimony, "the cigarettes were on the dashboard inside of the truck." This irritated appellant, who started yelling, "[D]on't you see me fucking talking? You better get the fuck back. You rude ass [racial epithet]."

         Chuck abandoned his attempt to get the cigarettes and walked away, saying, "Man, whatever." This reaction seemed to aggravate Shepherd, who, "[en]raged and upset, " continued to yell at Chuck, saying things like, "you don't know who the fuck I am." Eventually, Chuck started to get upset when he "felt like his manhood was being tested[, ]" and he started "saying things back" to appellant. At some point during the heated argument, Jayda tried explaining to appellant that Chuck was her cousin, but appellant said, "I don't give a fuck who ...


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