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Dickens v. United States

Court of Appeals of Columbia District

July 20, 2017

Gary C. Dickens, Appellant,
v.
United States, Appellee, Antwarn D. Fenner, Appellant,
v.
United States, Appellee.

          Argued March 16, 2017

         Appeals from the Superior Court of the District of Columbia (CF3-9198-10 and CF1-9270-09) (Hon. Jennifer M. Anderson, Trial Judge)

          Jenifer Wicks for appellant Gary C. Dickens.

          Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant Antwarn D. Fenner.

          Stephen F. Richard, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, Joycelyn Ballantine, and David Gorman, Assistant United States Attorneys, were on the brief, for appellee.

          Before Glickman, Fisher, and Thompson, Associate Judges.

          OPINION

          FISHER, ASSOCIATE JUDGE.

         A jury convicted appellants Antwarn Fenner and Gary Dickens of first-degree murder while armed[1] and conspiracy to commit the same.[2] Mr. Fenner argues that the trial court committed reversible error when it instructed the jury on the principles of aiding and abetting and when it struck a small portion of his closing argument. Mr. Dickens argues that he should receive a new trial under Super. Ct. Crim. R. 33 and the doctrine of Brady v. Maryland[3] due to the government's alleged failure to disclose a statement made by a witness during the preparation of a presentence report. He also argues that we should remand for further inquiry regarding a complaint he made about his counsel before trial began. We affirm.

         I. Factual and Procedural Background

         On August 8, 2008, Stanley Daniels-the victim in this case-was sitting in a Range Rover parked next to the intersection of Georgia Avenue and Newton Place, N.W. Daniels had been the boyfriend of April Dickens, who had been murdered by repeated stabbing a month earlier. Although appellant Dickens was April's ex-husband, he and April had had sex the day before she died. Dickens told the investigating detective that he was "100 percent sure" that Daniels had killed April. The detective recovered Daniels' jeans and boots, which appeared to have blood on them. Later DNA testing, completed after Daniels' death, confirmed that the blood belonged to April.

         The detective testified that appellant Dickens had been "upset" with the length of time required to investigate his ex-wife's death and that he "was crying to the point where I told him . . . don't do anything rash." Witnesses had warned the detective that Dickens had stated his intent to kill Daniels. Dickens also told his nephew, Eddie Pitts, that he wanted to buy a gun to kill Daniels.

         On the night of August 8, Eddie Pitts was with an acquaintance, Tyrone Johnson, when he saw Daniels in the Range Rover. Pitts borrowed Mr. Johnson's cell phone to make two calls. After the first call, Pitts asked Johnson if he had a gun. Johnson replied that he did not. Pitts explained that "there was a guy across the street . . . that did something to his folks[.]" During the second call, Johnson overheard Pitts loudly and anxiously saying, "[W]here y'all at? Hurry up." The record shows that two calls were placed from Johnson's phone to one of Dickens' residences around this time.

         At likely the same approximate time, [4] a friend and relative of Dickens stopped by the residence and, at Dickens' request, drove Fenner from the residence to a carryout restaurant near Daniels' location. Dickens and Fenner were "like brothers"; Fenner was Pitts' cousin. The friend testified that Fenner was wearing a white t-shirt and jean shorts.

         Dickens called Crystal Jackson, who was then his girlfriend, and hurriedly asked her to look after the children. According to Ms. Jackson, Dickens explained that Fenner had just been on the phone with Pitts, who had told Fenner that Daniels was in the Range Rover.[5] Ms. Jackson met Dickens on a side street near Georgia Avenue, where Dickens had driven with his niece and her friend. Ms. Jackson picked up keys from Dickens and left. Dickens, Fenner, and Pitts were all near the area where Daniels was sitting in the Range Rover.

         At this point, the testimony of two witnesses differs somewhat. Mr. Johnson testified that Fenner came up to him and Pitts. Pitts told Fenner that Daniels was in the Range Rover. Fenner asked Pitts "which way could [Fenner] go and where [Pitts] was going to pick him up . . . after [Fenner] was done." Fenner then asked where a nearby alley led, and he walked towards it. About five minutes later, Fenner exited the alley, crossed the street, and fired several shots into the driver's side of the Range Rover from a few feet away. Pitts had since left and walked down another street. After the shooting, Fenner went back through the alley from which he had come. Johnson testified that he did not see Dickens that night.

         Pitts testified that Dickens walked up to Johnson before the shooting and then spoke with Johnson and Pitts. Dickens asked where Daniels was, and Pitts pointed to the Range Rover. Pitts agreed to "go over on the corner and pick [Fenner] up" after the shooting. Fenner arrived. Dickens crossed the street towards the vehicle and identified Daniels by nodding his head. Pitts went to get his car so he could pick up Fenner.

         Steve Broido was driving on Georgia Avenue when he heard gunshots and saw bright flashes. He told a 9-1-1 dispatcher that the shooter was wearing a white shirt and blue jean shorts. Another witness, Juan Castillo, was standing about a block away from the shooting. He testified that the shooter was wearing a light gray shirt and dark jean shorts. He also remembered the shooter as having short, "[a]lmost bald" hair, facial hair on his chin and jawbone area, and dark skin.

         Police found Daniels in his Range Rover, dead from several gunshot wounds. An expert in firearms and tool mark identification testified that the evidence indicated that the same weapon had fired all of the shots.

         After the shooting, Pitts picked up Fenner, who told him that Dickens was still "up there." Using cell phone records and maps created as part of his analysis, an expert in radio frequency engineering later confirmed that Dickens' phone transmitted several calls from the area during this time. Fenner also told Pitts that he had shot Daniels, whose "brains [had flown] in the backseat of the car." The two men went to a strip club that was known to search customers at the door. After they left the club, Fenner reached under Pitts' car seat and pulled up a gun, which he concealed in the waistband of his pants. When they arrived at Pitts' home, Fenner hid the gun under a bush and left with his girlfriend.

         When Ms. Jackson saw Dickens again later that night, he told her that he had been on Georgia Avenue and had walked up to Daniels' car. Dickens also came to Pitts' house the next day and bragged that he had told his children that he "was going to get that dude that killed their mother." At a cookout later that day, Jessie Lawrence, a cousin of Dickens and Fenner, heard Fenner confess that he had shot Daniels "numerous times, " including in the head.

         Fenner, Dickens, and Pitts were all charged with first-degree murder while armed and conspiracy to commit that offense. Fenner was also charged with possession of a firearm during a crime of violence ("PFCV"). About a year before the trial of Fenner and Dickens, Pitts pled guilty to one count of conspiracy to commit murder. Fenner and Dickens chose to go to trial, where the government called several witnesses, including Pitts.

         After its case-in-chief, the government requested an aiding and abetting instruction. Fenner's counsel argued that the instruction should apply only to Dickens because "the evidence is so clearly and conclusively that it's my client that's the principal and [that Dickens is] the aider and abettor." The trial judge decided to give a general aiding-and-abetting instruction that would apply to both defendants because "nobody has testified that they . . . can identify the shooter, " and a "reasonable juror could find . . . that even if Mr. Fenner was not the shooter, he was an aider and abett[o]r" because "the murder was ongoing until they left the scene." The court noted the potential discrepancy between Johnson's identification of Fenner and the testimony of Castillo, who had described a shooter with physical characteristics that arguably better matched Dickens, who had darker skin than Fenner and more facial hair. Indeed, after the court's ruling, Fenner's counsel argued to the jury that Dickens was the shooter.

         During its deliberations, the jury asked (1) whether a defendant had "to have a gun in hand" to have committed first-degree murder while armed, and (2) whether the causation element of the offense referred to just "strictly . . . shooting Stanley Daniels" or could also "mean any act that leads to the death of Stanley Daniels." The trial judge answered the first question in the negative. Responding to the second question, the judge told the jury that it could find a defendant "guilty of first-degree murder while armed either because you are convinced beyond a reasonable doubt that the defendant committed each and every element or because you are convinced beyond a reasonable doubt that a defendant aided and abetted another individual who committed that offense."

         The jury convicted Fenner and Dickens of conspiracy and murder. However, it acquitted Fenner of PFCV.

         II. Analysis

         A. ...


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