*3 weapons August of and related offenses SCHWELB, Before RUIZ and eyewitnesses after three testified year WASHINGTON, Judges. Associate grand jury appel- and identified before lant shooter. as the When
RUIZ, Judge: Associate February of brought to first appeals Michael Plummer his con- presented the government premeditated viction mur- first-degree, eyewitnesses; three armed,1 weapons Gaither, der while and related friend of the mur- the best Calvin preju- informant, that a arguing “pervasive, offenses2 victim and a der dicial atmosphere Spe- infected his trial.” had confessed who claimed *4 cifically, that court Hines; he claims the trial killing testimony Dennis and jury erred in allowing speculate, Mitchell, neighborhood a of “Jeff’ William basis, evidentiary Tia, without a firm this that daughter, whose had resident been shooting Hines, and another were gang-related shortly after and who killed Dennis appellant and that had confessed grand jury, had at the but subse- testified person testify crime to a who did trial, not quently appellant recanted at trial. Appellant judge also claims that the setting cycle for off the of apologized improperly allowed irrelevant and inflam- that resulted in the death of his matory and argument urging presented also friend Tia. conviction on the of senti- community examiner, basis who testified that the medical ment and for the vic- sympathy causing two had been four shots fired tim’s head, ear, relatives and friends. We hold wounds to Dennis Hines’s shoul- harmless, any error in this case was and Although police der and ribs. recovered a affirm. bullet, physical there was no evidence link-
ing shooting. After delib- appellant erating days, jury for three deadlocked FACTUAL SUMMARY on all counts. government’s evidence In of was tried June 2, 1996, July On at approximately 11:00 judge. before a second and a different Street, N.W., in p.m., the unit of block eyewit- three This trial featured the same D.C., Washington, sixteen-year-old Dennis nesses, informant and medical twice, in Hines was shot at close range, but presented the first did not subsequently head and back. He died evidence dem- include Mitchell. The Jeff from gunshot those wounds. shot, onstrated before he was Dennis death, of sitting After Hines’s be- been in front 18-A O Dennis rumors Hines had N.W., Street, Street and circulating appellant, a six- between 1st gan also Street, Capitol with Nata- teen-year-old young nearby speaking man from North a Burks, Burks, Larry In and Mor- neighborhood, had been the lie Nichole shooter. she noticed a January six testified that gan.3 of months after Natalie license, 22-2401,-3202. pistol §§ without a see D.C.Code 1. See D.C.Code a 22-3202(a). § during 2. Possession of a firearm the commis- dangerous testified that had "a little" to sion of a crime violence or of- 3.Natalie she fense, 22-3204(b), night shooting, carry- § about an inch see drink the D.C.Code and Larry Morgan young alley tographs an near emerge man men. young knew the Street, Doughty him he recognized told Detective Capitol North Plummer,’’and also “Michael neighbor- had seen shooter as as someone she array pho- an young ap- appellant'from man Natalie saw the identified hood. Hines, a from his pull gun Dennis proach tographs. waistband, it at Dennis Hines’s point Testimony Calvin Gaither gun pulled trigger, He but the head. Gaither, felon and a convicted Calvin Then, again it pulled did not fire. he a drug good who had been local dealer four Natalie shot Dennis Hines times. Hines, of Dennis testified friend Nichole, daughter, who had grabbed her confessed appellant had previous summer sitting nearby, and ran with her to- shooting Dennis to him the D.C. Jail ran, Capitol they As
ward North Street. he had for “what by apologizing gunman Natalie looked back and saw saying that he “had acted too by done” and Hines he fire another shot at Dennis as appel- testified that fast.” Gaither further In trying get up ground. off the beef,” they “squash if could lant asked court, Natalie identified referring to feud between apparently appel- shooter and testified that she saw neighborhood and the 1st Corda Sursum five six shots at Hines from lant fire or According to neighborhood.5 and 0 Street *5 couple of a of inches.- distance beef,” Gaither, by appel- the “squash[ing] testified4 that he had Larry Morgan more that “he didn’t want no lant meant night with Den- drinking alcohol prosecutor on.” going violence When drunk, and had left but was not nis other then asked if there had been violence Street, begun up to walk group and defense counsel groups, between the two N.W., about 1st Street. As he was toward bench, colloquy a took objected. At the or away, four houses he heard five three or said he prosecutor in which the place him, turned gunshots six behind killing of retaliatory wanted to refer around, he knew appellant, whom and saw Mitchell, friend, which had Tia appellant’s shooting at Dennis neighborhood, from the shooting of Den- shortly after the followed Hines. argued counsel Hines. When defense nis “the beef’ killing Tia Mitchell Natalie shooting, neither
Following trial, the Nichole, any to issues at Burks, Larry were not relevant daughter, nor her withdraw agreed that he would they prosecutor of what Morgan police informed the later, Tia As concerning Mitchell. July, question year witnessed. One follow-up asked Gaither a appear they subpoenaed were to be- appel- to responded how he question time Detec- about jury, at which grand fore beef,” “squash request lant’s he individually met Timothy Doughty tive by referred to the Burks Gaither one. Natalie and Nichole with each one; “we lost appellant, that he told array pho- stating from an identified death, Morgan's was instructed not but Remy-Martin, but Mr. a half to two inches of did not affect her had died. speculate that the alcohol she had about how he ability to see. attempted government first 5. At the prior appel- Morgan was murdered Mr. explain that the "beef” re- Gaither to have retrial, appellant’s at first but testified lant's the two purported a feud between ferred to prior his The introduced trial. permit judge refused to gangs, but the trial through transcript, which was subject. any testimony on the by police was told read officer. Yeah, they lost one. squash Q let’s it.” The Okay. Mendly You became even approached though you guys then the bench and were sort of on the opposite things? asked the if side of judge he could ask witness one; what he meant by you “we lost lost A Yeah. one.” objection, Over defense the trial Cross-Examination
judge permitted question the additional reasoning they that “since don’t know what Appellant denied shooting Dennis Hines to, it’s reference it could be misunder- stated he was not the area of Streets, stood as a by N.W., reference to a killing Dennis 1st and 0 evening 2,1996, Hines for which Mr. July although Plummer retaliat- he could not remem- ing and that ber where he or doing would not be was what he was reasonable.” time. He said he had no following questioning by relationship prosecu- Gaither, with Calvin testified that he never testimony by tor and Gaither ensued: and, discussed his case with him Q Gaither, Mr. when you told Mr. Plum- contrary, stop trying asked Gaither to “Yeah, one; mer one, we you lost ask appellant about his pending case. He just squash beef,” let’s what you did also testified that he suggested never by mean that? beef,” Gaither that they “squash the nor A That they lost a close friend and we did he know what that phrase meant. lost a close Mend so we didn’t need cross-examination, On the government nobody get else to kill. asked if he was familiar with the Q Who was the close friend that all area,” “Sursum Corda and the “1st and 0 lost? Street area” —the areas prose- where the A Little Dennis. cutor judge had told the the two gangs were located. Asked whether he Q And who was the close Mend that *6 area, had “friends” the Sursum Corda they lost? appellant any testified that he never had A A girl named Tia. problems with the folks from the area of Q I just Now should ask clarify, did Streets, 1st and 0 Appellant N.W. was Little Dennis anything have to do with Mitchell, asked whether he knew Tia killing Tia? he said that he did. then No,A he got killed first. appellant asked whether had talked to her
father, Mitchell, Jeff “about the that fact Tia got killed you because had smoked Q you How would you continue to —did earlier, Little Dennis nights two [Hines] talk to Mr. just Plummer or was that a you?” didn’t making denied one-time talk? such government comments. The never No,A know, we became all right, you called Mr. Mitchell to substantiate the re- you Mends say. could mark.6
6. objected Defense counsel questioning, jury, to the previously Mr. Mitchell had testified that as Jeff Mitchell had not been appellant shooting called as a had confessed to Dennis trial, Hines, but, trial, government witness. In the first grand the at he disavowed his witness, Instead, had called Mr. Mitchell as a jury testimony. grand and he he said his appellant testified that jury had testimony friend of was based on the fact that he Tia, daughter, his appellant ap- and that appellant's had had heard rumors of role in start- proached sorry him and daughter’s told him he was the violence that led to his death, daughter's grand about his death. Before the that he had wanted someone to the beef’ had left the-character “squashing
ANALYSIS issue, victim as the potentially of the Testimony alleged gang-re- about the have had jury thought could that Hines lated motivation the murder. behind someone, appellant killed and that Appellant contends that the trial potential him in This mis- shot retaliation. testimony court erred when it allowed understanding, according govern- from which the that jury speculate could ment, jury. up needed to be cleared for the retaliation the gang was the motive for 2, 1996, killing July of Dennis Hines on The trial court’s decisions about killing days and the of Tia Mitchell two or are re admission exclusion of evidence argues later. He that even the limited viewed for abuse of See Mer discretion. of of explanation understanding Gaither’s States, cer United A.2d appellant the conversation he had with (D.C.1999).8 if it has Evidence is relevant “squashing about irrelevant the beef’ was tendency to “any make the existence question jury had to decide— that is of any consequence fact whether it was killed Dennis who probable determination action more Contending Hines. that Gaither’s testimo probable it without or less than would be ny unfairly sup it prejudicial because States, the evidence.” Street v. United to an plied unexplained motive otherwise (D.C.1992). “[0]rdinarily, murder, appellant he is entitled to argues which any logically probative evidence responds a new trial.7 The government fact in issue gang [and][i]f the evidence feud was some is admissible testimony any relevant because Gaither’s about the evidence offered rea- conduces just necessary any prejudice suffer as much He told the as he did. tent to remove unfair unfair, might in the first trial for me to that “It's which otherwise have ensued from give agree gave you original I about this evidence.” We See id. man, case, I just angry pissed applicable here ... am off is not this doctrine open and all of above.” At the second the defense did not door to Gaither's although "squashing subject announced that Mr. on the appellant’s partic- testify Mitchell would beef.” ipation precipitated in a feud had his killing of Dennis never government sought 8. When to elicit called Mr. Mitchell. by Gaither what Mr. he had meant one, one,” phrase, "we lost *7 objected grounds. the trial court’s rul- After collo- characterizes relevance ing quy, ques- the ad- as based on curative the the doctrine of then withdrew Later, missibility argues government that reliance on that when wanted to tion. the government disputed follow-up questioning, doctrine was in on the error. The line of agrees appellant's that the doctrine of curative admissi- counsel his concern stat- voiced bility inapplicable ing, "why just was the circumstances can’t we at that ... leave it presented, argues but that this was not what's in this man's mind it does seem [not] the Instead, ruling. trial basis for the court’s the to me that it much matters ...” The court argues, permitted evidence was inde- ruled that "the be to the witness should get pendently say talking relevant. of curative what he was Just it out The doctrine about. provides admissibility “Appellate at that.” have in certain circum- and leave it courts prosecution may inquire the into oth- a trial on the admis- stances reviewed court’s decision evidence, only sibility erwise inadmissible but after of evidence under an abuse of discre- standard, "openfed] the defense has the door” with tion even when it is not clear that contemporaneous regard to this See Mercer v. United the defendant made a ob- evidence. States, 1176, (D.C.1999). long jection, 724 A.2d so as ruled on the 1192 the trial court Mercer, Moreover, objection.” admissibil- of the of curative substance See doctrine permitted, "only ity is and' to the ex- at 1182. That limited A.2d is the case here. degree days sonable to Tia Mitchell—occurred two after probability establish killed, or improbability of fact controversy, Dennis Hines was and could not [a] go jury.” it should Dockery Further, by have him. been committed he (D.C. States, United 746 A.2d argues, unfairly was Gaither’s (internal 2000) quotations and citations prejudicial suggested— it to the extent omitted). may relevant, That evidence be without substantiation9 —that however, the trial does not end court’s in retaliation jury before was for a analysis. Mercer, See 1184. gang-related particularly dispute, after The weighing probative of value versus told appellant Gaither added that he “we prejudice part must be of always the trial one; this, All according lost one.” consideration, judge’s trial judge appellant, interpreted could have has the discretion if to exclude evidence its by jury a to gang reference vio- probative substantially value outweighed is argues lence. He by danger prejudice. of unfair See id. point drove the when he home commented prejudice “Unfair within its context means during closing that had become Gaither an tendency suggest undue decision on “friendly appellant] even though you [with basis, an improper commonly, though not guys part opposite were of the side of (inter necessarily, an one.” Id. emotional things.” omitted). nal quotations and citations
Specifically, we have cautioned trial We need not whether decide allow judges carefully to consider before admit- ing testimony referring gang vio ting retaliation, evidence of and then error,10 lence was because we conclude only after ensuring government’s light that it was harmless of the evi relevant, evidence necessary is and sup- arrayed appellant. dence against See ported by Mercer, competent evidence. In States, Johnson v. United 398 A.2d we held that against evidence threats (D.C.1979) part (noting abuse potential witness had the for great preju- of discretion whether error was “of dice against the defendant because “it im- reversal”). magnitude requiring Refer plied that [the had received witness] some supply ences to a gang feud can type of threat [from defendant] re- a motive for an kill unexplained otherwise garding her This testimony. type of evi- suggest or intimidation. witness Un dence very could have well aroused the however, Mercer, like in did Gaither not passions jury_” Id. at 1186. testify that him threatened though testifying. for Even the reference case,
In this appellant argues that Gaith- opposing neighborhood groups could er’s by on what he meant for suggested appellant’s have a motive “squashing the beef’ irrelevant to Hines, appellant killing Dennis concedes issue of for appellant’s guilt shooting testimony about in his brief that Gaither’s Dennis also was no there need *8 appellant’s “confession” was ex jury purported to inform the Dennis that Hines had tremely vague, interpreted by and be not committed a for which could appel- saying only jury appellant lant was the either as he was retaliating because the other Hines, sorry killing that had been alluded that Dennis who was Gaith- to—that Gaither, plain up government argues that the er- 9. who was at the time of locked 10. killings, personal knowledge applies. both had no ror review In view of standard of incompetent testify to was therefore about the disposition, we not decide the issue. our need motivation behind them. Moreover, killed, fact that Tia friend, sorry not even the or that he was
er’s
addition,
killed
Hines.
In
was killed—much less who
he had killed Dennis
Mitchell
appellant
trial.
testimony implied
why
proven
Gaither’s
her
at
and —was
after the two
wanted the violence to end
questioning for
We review this
also take into account
killings. We
did not ob
plain
appellant
error because
extensively impeached with
Gaither was
States,
ject
trial.
v. United
See Watts
incarcerated when
the fact that he was
(D.C.1976). Thus,
706,
we
362 A.2d
killings
both of the
he testified about were
only if the error is obvious
will reverse
committed,
to
as well as with his failure
rights
clearly
to substantial
prejudicial
“so
government
.appel-
the
at the time of
tell
in
fairness and
jeopardize
very
as to
killing of Dennis
“apology”
lant’s
for the
Id.
tegrity of the trial.”
had an
though
even
then
Gaither
impermissible
gov
It
for the
is
agreement
cooperate
prosecutors,
to
with
by cre
to “manufacture evidence
ernment
sentencing
until his own
and did not do so
in the minds of the
ating
impression
an
the evi-
importantly,
was imminent. More
jurors through questions
imply
appellant’s guilt
at trial of
was con-
dence
facts,”
pred
factual
unless the
existence
siderable,
including
eyewitnesses
three
in a
question
“grounded
for the
icate
neighbor-
knew
from the
appellant
who
that those facts are sus
good faith belief
was made aware
hood.
proof by competent evidence.”
ceptible to
had not come for-
while these witnesses
States,
520 A.2d
Ali v. United
shooting, they
immediately
ward
after
(D.C.1987).
govern
agree with
We
Viewing
apparent
no
motive to lie.
testimony of
sworn
prior
ment that
in the
about
grand jury
sufficed
Mr. Mitchell before
record,
conclude
context of the entire
we
faith
to ask the
give
good
to
it a
basis
v.
harmless. See Kotteakos
the error was
called Mr.
government
Had the
question.
States,
750, 765, 66 S.Ct.
United
328 U.S.
Mitchell,
denied that
and had he
(1946).
1239,
confessed his 2. Cross-examination testimony. peached prior with his sworn Jeffrey Mitchell statements William States, (Darryl) Jones United See (D.C.1998). Moreover, the trial Appellant claims govern was limited and questioning govern erroneously permitted court purport appellant’s ment did not mention him, without evi- ment cross-examine closing to Mr. Mitchell ed “confession” foundation, dentiary on his statement Therefore, hold there was we argument. “sorry” Tia father that he was Mitchell’s error. plain no testified that he was killed. she and, Mr. Mitchell at the never confessed to emotions and communi- Appeal Mitchell recanted under first Mr. decedent’s ty sympathy sentiment and for jury about grand his oath relatives11 friends that it confession appellant’s purported Burks became emo led to Nichole Dennis Hines that killing was his the stand and refused answer Tia tional on retaliatory killing of Mitchell. speak to her Ms. tried to presented Hines's the street. Hines Dennis 11. The son, testified, only mumble she said that he could objection, that af- but over mother who picture *9 response. of her night She identified shooting late at in she ran outside ter son, jury. The testi- which was lying shown night and saw her son in her clothes
191 court that the trial because contends questions on cross-examination to uncontrollably. govern- erroneously permitted The crying she was by present- jurors’ ment stated for the record that “she was emotions appeal And I think she testified Burks’s emotion- ing stressing scared to death. and Nichole well, trial al- hesitatingly gang at the first as and the fear of al trial actually for the is though just closing argument. govern- record she crying.” During closing argument, over rele- was argues ment objection, the government stressed argument and the a reiteration vant during had cried her testi- Nichole Burks al- which were facts and circumstances afraid, “It mony, stating, and was wasn’t ready jury. before the enjoy- fun for her to do. wasn’t thing She said, repeat, have We probably enjoy- You weren’t herself. to in designed comments prosecutorial her, young lady, go
ing watching
jury’s
urging
them
flame the
emotions
Did
terri-
through
appear
that.
she
be
of their com
messages
to send
behalf
prose-
appear upset?”
fied? Did she
improper.
are irrelevant and
See
munities
cutor reinforced the
violence theme
States,
164,
Hawthorne v. United
by saying,
States,
(D.C.1984); Powell v. United
things
important
And one of the more
(D.C.1982).
there
455 A.2d
When
kind
that Calvin Gaither said was as we
improper argument by
prosecutor,
know,
developed
you
agreed
he
this—
if
be reversed
the error
the conviction will
look,
beef, right?
He said
squash
prejudice,
the level of substantial
rises to
you
sorry
lost one—I’m
Gaither
—Calvin
i.e.,
say,
can
with fair assur
unless “we
one;
said
lost
we
one. Let’s
ance,
pondering
happened
after
all that
beef,
squash the
all right?
action
stripping
without
the erroneous
rebuttal,
During
exhorted
whole,
judgment
was not
“as the conscience of the commu-
substantially swayed by the error.” Pow
nity,”
appellant guilty:
to find
(internal
ell,
quotations
455 A.2d at
well,
says
Mr. Horton [defense counsel]
omitted).
gravity
Decisive factors are the
says
the defendant
he didn’t do it.
misconduct,
relationship
its direct
Folks, when the defendant
took the
the effect of
guilt,
the issue of innocence or
stand,
you expect
going
did
he was
instructions,
any,
if
and the
corrective
yeah, I
get up
say,
there and
killed
appellant’s guilt.
of the evidence of
weight
Little
course
He’s mo-
Dennis. Of
not.
Hawthorne,
that the appellants was irrelevant
message” “jurors because are not em-
inappropriate, behalf of
paneled messages to send Id. community.”
their agree We AGNEW, Appellant, R. Vanessa highlighted not have the emotional should ar impact testimony during closing Ni respect with
gument particularly — STATES, Appellee. UNITED being chole Burks “scared to death” —but No. 97-CF-1697. already evidencé jurors had heard the and seen the witness themselves. Of Appeals. District of Columbia Court reit greater prosecutor’s concern are the 7, 2000. Argued Nov. testimony implying of Gaither’s eration prosecutor’s improp gang violence and Decided Dec. 2002. “community conscience” appeals er dur balance, how argument. rebuttal On
ever, do not think these comments— we substantially they
improper though were— prosecu
prejudiced appellant’s case.
tor reiterated the statements Gaither and “we “squashing
made about beef’ one; one,” but did not ex lost appel
pressly refer to killing Dennis Hines.
lant’s motive for included two prosecutor’s rebuttal jury’s role the com
phrases about
munity, request but did not view the comments message.” We
“send Considering context.
at issue their was the
significant evidence
shooter, that these com we do not believe appellant. substantially prejudiced
ments Powell, 455 A.2d at
See
Affirmed.