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Bryant v. United States

Court of Appeals of Columbia District

November 3, 2016

Deonte J. Bryant & Terrance M. Bush, Appellants,
v.
United States, Appellee.

          Argued February 18, 2016

         Appeals from the Superior Court of the District of Columbia (CF1-12641-11 & CF1-13086-11) (Hon. John Ramsey Johnson, Trial Judge)

          Rachel W. Apter, pro hac vice, by special leave of court, with whom Carrie Lebigre, pro hac vice, by special leave of court, and Mark S. Davies were on the brief, for appellant Deonte J. Bryant.

          Jessie K. Liu, with whom Jack Douglas Wilson was on the brief, for appellant Terrance M. Bush.

          John Cummings, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, Jennifer Kerkhoff, and Kathryn Rakoczy, Assistant United States Attorneys, were on the brief, for appellee.

          Before Washington, Chief Judge, Blackburne-Rigsby, Associate Judge, and Belson, 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

         ORDERED and ADJUDGED that the trial court's judgment is affirmed.

          OPINION

          WASHINGTON, CHIEF JUDGE

         Deonte J. Bryant ("Bryant") and Terrance M. Bush ("Bush") (collectively "appellants") challenge their convictions, arising from a shooting on June 25, 2011, during the Caribbean Festival on Georgia Avenue, N.W. in Washington D.C.[1] The shooting resulted in the injury of Alexcia Harrison and Trevis Johnson and the death of Robert Foster, Jr.

         On appeal, appellants assert that the trial court abused its discretion by admitting both the government's video compilation of the shooting and certain gang affiliation evidence intended to show that appellants possessed a gang-related motive for carrying out the shooting. Appellants also argue that the trial court erred by instructing the jury using the government's "urban-gun-battle theory" to prove the intent element of first-degree murder and instructing the jury that provocation by presence in rival gang's neighborhood negated appellants' ability to claim self-defense. Lastly, appellants challenge the sufficiency of the evidence to support their convictions for first-degree premeditated murder. Separately, Bush contends that the trial court abused its discretion in denying his motion to sever his trial from that of Bryant. We affirm the trial court's judgment as to each defendant.

         I.

         According to the government's evidence at trial, the incident occurred on June 25, 2011, at the annual Caribbean Festival on Georgia Avenue, N.W. in Washington, D.C., where Bush, a member of the LeDroit Park ("LDP") or West Side gang, Bryant, a member of the Clifton Terrace University ("CTU") gang, and an unidentified friend engaged in a "gun battle" incited by gang-related tensions with Terry Jimenez ("Jimenez"), a member of the 11th Street/Hobart ("Hobart") gang and two of his friends ("Young" and "Butler"). In the course of the shoot-out, three innocent bystanders were shot; one of whom was killed. Bush, Bryant, and Jimenez were each charged and indicted for the killing of Robert Foster, Jr. and other charges arising from the shooting. Before trial, and as part of a cooperation agreement with the government, Mr. Jimenez pled guilty to second-degree murder, AAWA, and Assault with a Dangerous Weapon ("ADW") and agreed to testify against Bush and Bryant.

         At trial, the jury heard the testimony of Jimenez, his two friends, Young and Butler, the testimony of the two surviving victims, Trevis Johnson and Alexcia Harrison, and various Metropolitan Police Department ("MPD") officers familiar with the neighborhood. The government also presented evidence of appellants' gang affiliation to provide "context" for Jimenez's and Bryant's motive for engaging in the shooting. Neither Bush nor Bryant testified.

         On the date of the incident, Jimenez traveled to meet his friends and attend the Caribbean Festival on Georgia Avenue. Young testified that he and Jimenez went to the liquor store and then sat down on a porch near Georgia Avenue and Harvard Street to drink and to smoke three or four K2 joints. Jimenez denied smoking. Jimenez's friend Butler joined him and Young. Young stated that he saw Bryant "mean-mugging" Jimenez from across the street. After this exchange, Young testified that Jimenez ran to get a gun, after which Young left to get his little brother from the neighboring Bruce Monroe playground, fearing that an altercation was about to ensue. Jimenez testified, however, that he had already retrieved a gun for protection prior to seeing Bryant because he had seen several CTU members in the Hobart neighborhood earlier in the day. On his walk from the playground, Young ran into Bryant, who told him to "tell your man we trying to work." On cross-examination, Young stated that he considered these words to be threatening, but never mentioned them to Jimenez. Butler, Jimenez's other friend, testified that he also spoke to Bryant, but did not recall what was said. Young and Butler then met up with Jimenez on Harvard Street and proceeded to follow Bryant, Bush, and another companion. Young testified that Jimenez was "going nuts" and Butler described Jimenez's demeanor as "disturbed." As Bryant's group began to turn the corner of Georgia Avenue onto Gresham Place, Young and Jimenez witnessed Bryant place his hand on his waistband, or "pump fake."

         Video surveillance footage of the incident depicted Bush, Bryant, and a friend turning the corner and walking down the left side of Gresham Place. The government argued that the video depicted both Bush and Bryant, stopping on the corner of Gresham and "pump faking" (placing a hand on one's waistband) to indicate to Jimenez and his friends that they were carrying guns. The video showed that Bryant, Bush, and their friend continued to walk west on the south side of Gresham Place. Jimenez's group followed, but remained on the north side of Gresham, while Bryant kept looking over his shoulder at Jimenez, smiling at him like it was "a game." Butler testified that he tried to "talk [Jimenez] off the ledge saying words to the effect [of], hey, Terry, don't do anything stupid, " but Jimenez did not listen and continued to follow. Butler decided to stay with Jimenez, following him towards Gresham, because he "thought he might get into a [fist] fight and [he] didn't want him to fight by hisself [sic]." Butler was beside Jimenez on the sidewalk on the north side of Gresham Place. Then, as Jimenez walked into the street near the crosswalk, Butler and Young saw and heard Jimenez fire his weapon and the two ran. When Jimenez fired, Butler did not see anyone else with a weapon and did not see anyone else fire. He testified that he only saw Jimenez, facing down Gresham towards Sherman Avenue, pointing a gun. All other testifying witnesses stated that they saw Jimenez with a gun or actually fire the gun. Jimenez testified that he saw Bryant pull out a gun as he crossed Gresham. During the shooting, Jimenez was shot in the elbow, which caused him to retreat north toward Georgia Avenue. He fired two additional shots as he retreated from the scene. Bryant, Bush, and the companion retreated as well, running south down Gresham. In the cross-fire, Alexcia Harrison suffered a gunshot wound to the abdomen; Trevis Johnson, who dove to the ground when he heard gunshots, was hit in his leg and his side; and Robert Foster, Jr., was fatally wounded when a bullet entered the right side of his back.

         Twelve 9mm shell casings, a 9mm magazine, and three .45 caliber shell casings were recovered from the scene. The gun that Jimenez used was a .45 caliber Hi-Point handgun. A ballistics expert determined that the casings are consistent with being fired from three separate guns. At trial, the jury also heard testimony from several officers involved in the investigation. Additionally, the government presented evidence of Bryant's and Bush's gang affiliation to provide a context for the shootout and three surveillance videos that captured, from different angles, the moments leading up to the shooting as well as the shooting itself. These videos were made into a synchronized compilation that was also admitted into evidence and shown to the jury.

         On December 13, 2013, the jury found appellants Bryant and Bush guilty of MIWA; AWIKWA; AAWA; CP; and five counts ...


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