Gary C. Dickens, Appellant,
United States, Appellee, Antwarn D. Fenner, Appellant,
United States, Appellee.
March 16, 2017
from the Superior Court of the District of Columbia
(CF3-9198-10 and CF1-9270-09) (Hon. Jennifer M. Anderson,
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.
Glickman, Fisher, and Thompson, Associate Judges.
FISHER, ASSOCIATE JUDGE.
jury convicted appellants Antwarn Fenner and Gary Dickens of
first-degree murder while armed and conspiracy to commit the
same. 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 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.
Factual and Procedural Background
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.
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
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.
likely the same approximate time,  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.
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. 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.
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
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
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.
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.
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.
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
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,
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.
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."
jury convicted Fenner and Dickens of conspiracy and murder.
However, it acquitted Fenner of PFCV.