Freeman v. U.S.

• Decision Date: 21 December 2006
• Docket Number: No. 03-CF-1432.,03-CF-1432.
• Citation: 912 A.2d 1213
• Parties: Garfield FREEMAN, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1213

912 A.2d 1213

Garfield FREEMAN, Appellant v. UNITED STATES, Appellee.

No. 03-CF-1432.

District of Columbia Court of Appeals.

Submitted January 19, 2005.

Decided December 21, 2006.

Joseph Virgilio, appointed by the court, was on the brief for appellant.

Kenneth L. Wainstein, United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and John M. Cummings and Burke W. Kappler, Assistant United States Attorneys, were on the brief for appellee.

Before KERN, FERREN, and TERRY, Senior Judges.^*

TERRY, Senior Judge:

Appellant was convicted of assault with intent to kill while armed ("AWIKWA"), aggravated assault while armed ("AAWA"), assault on a police officer with a dangerous weapon, and related weapons offenses, including three counts of possession of a firearm during a crime of violence ("PFCV").¹ On appeal he seeks reversal of the AWIKWA and AAWA convictions, along with their related PFCV convictions, arguing that the evidence was insufficient to support them. We affirm.

I

A. The Government's Evidence

At about 10:30 a.m. on December 26, 2002, Dawn Gibson, who lived in an apartment building at 5012 H Street, S.E., left her apartment to use a nearby pay telephone. She was wearing a pink ski jacket. On her way to the phone, she passed Rodney Tolbert and another man she knew only as "Bean" inside the gated area in front of the building.² When she returned a few minutes later, Bean was leaving, and Mr. Tolbert was standing inside the gate with another man whom Ms. Gibson later identified as appellant. Mr. Tolbert was backing up the front steps away from appellant and holding his empty hands in the air, repeatedly saying he did not "have anything." Appellant, however, advanced toward Mr. Tolbert with his hand in his pocket, saying, "Give me everything."

As Ms. Gibson started to walk past appellant, he said, "Move out of the way, sweetheart, I am about to blast his ass." Hearing this, Ms. Gibson ran into the building and headed upstairs to the second floor, where she stood in the hallway, next to a window above the front door. She looked out the window and saw appellant and Mr. Tolbert "tussling" at the gate, which Tolbert was trying to hold shut from the outside while appellant was attempting to open it from the inside. Appellant then pulled out a gun and shot Mr. Tolbert once. Ms. Gibson ran into her apartment, and from there she heard several more shots. When she looked out her apartment window, she saw appellant running between two apartment buildings.

By happenstance some officers from the Metropolitan Police Focus Mission Team were in the same neighborhood conducting a "buy/bust operation" directed toward illegal sales of marijuana. Two undercover officers, Mustafa Hammid and Angelo Battle, were part of the operation. Officer Battle was driving an unmarked pickup truck, and Officer Hammid was in the passenger seat. As they passed 5012 H Street, S.E., they saw a group of three or four men standing in front of the building.³ Seeing nothing of concern, they drove around the block. When they returned to the same place a few minutes later, there were only two men in front of the building appellant and Mr. Tolbert. Appellant was inside the gate, and Tolbert was standing outside.

Officer Hammid testified that the two men were having a "tug of war" with the gate, and that Tolbert was pulling on it from the outside, apparently in an effort to open it.⁴ He did not see appellant draw a gun because he was looking the other way, but as soon as he heard shots, he looked back and saw appellant shoot Mr. Tolbert. Officer Battle also saw appellant pull a gun from his waistband and fire at Mr. Tolbert as Tolbert was walking away from the gate, and appellant was inside the gate on the landing.⁵ Both officers then saw appellant take a few steps away from Mr. Tolbert, come back, and fire more shots.

Officer Hammid immediately got out of the truck, exclaimed "Police," and fired his gun several times in appellant's direction. None of those shots hit appellant, who then ran to the rear of the building toward Hanna Place, S.E., which runs parallel to H Street. Hammid attempted to cut him off by running toward 51st Street, while Officer Battle radioed an account of what was happening and requested help.

Four other officers involved in the buy/ bust operation — Ronald Royster, Dion Smith, Peter Sheldon, and Michael Mudd — were sitting in a parked car in a nearby alley and heard the gunshots. Officer Royster, the driver, activated the car's emergency lights and pulled out into the intersection of Benning Road and H Street. From there, they saw Officer Hammid shooting toward appellant.

Officer Royster, who was familiar with the neighborhood, attempted to intercept appellant as he ran toward Hanna Place. When appellant ran in front of the officers' car with a black gun in his hand, Officers Mudd, Sheldon, and Smith got out of the car and began to chase appellant on foot. As they pursued him, Officers Mudd and Sheldon repeatedly yelled, "Stop. Police. Drop the gun."⁶ Appellant turned, however, and pointed his gun at Officer Mudd, whereupon Mudd fired one shot toward appellant. Although the shot did not hit him, appellant stumbled, then dropped his gun⁷ and continued to run. He was eventually stopped and arrested by Officers Smith and Mudd.

During the course of the pursuit, Officer Battle, who was also a trained emergency medical technician, stayed at the site of the shooting to assist Mr. Tolbert. The officer quickly found that Tolbert had multiple gunshot wounds to his torso and back.⁸ He was moaning, confused, and non-responsive, and did not look directly at Officer Battle. Because Tolbert appeared to be losing consciousness, Officer Battle employed a medical technique called a "sternum rub" to keep him awake. In addition, Officer Battle determined that Mr. Tolbert was unable to push down with his right foot. Ms. Gibson, meanwhile, approached Officer Battle as he was attending to Mr. Tolbert's injuries and recounted what she had seen.

Mr. Tolbert was transported by ambulance to Washington Hospital Center, where he was treated by Dr. Dennis Wang, a trauma surgeon and the director of trauma services. Tolbert was alert and awake when he arrived at the hospital, but complained of back pain and weakness in his lower right leg. According to Dr. Wang, Mr. Tolbert was not in danger of losing consciousness on account of blood loss. He did not receive a blood transfusion; he was not placed in intensive care; he was not paralyzed; and he did not receive emergency surgery. In short, he was stable, although he did receive "emergency care." The paramedics who treated Mr. Tolbert en route to the hospital had administered saline solution intravenously to increase his blood pressure and prevent shock.

The doctor testified that Mr. Tolbert suffered three gunshot wounds, all on his right side: one between his ribs and his hip, one close to the right hip, and one in the lumbar region near the small of his back. The last was the most severe; the bullet broke a vertebra and lodged inside his body, causing a loss of sensation in Mr. Tolbert's lower right leg and ankle. Dr. Wang stated that Mr. Tolbert was at risk of paralysis if his spine started to swell in the area where the bullet lodged. In addition, the bullet was an inch from Mr. Tolbert's aorta, any damage to which could cause a major hemorrhage resulting in prolonged hospitalization, or perhaps even death.

B. The Defense Evidence

Appellant testified that on the morning of December 26 he drove to a store on H Street to get some juice. As he passed the building at 5012 H Street, he saw a group of men standing inside the gate and decided to stop and buy some marijuana.⁹ He pulled over and spoke with Mr. Tolbert, whom he recognized from having seen him in the neighborhood, although they had not actually met. Tolbert told appellant to park his car; appellant complied, but parked on the other side of the street. As he got out of the car, he took with him a handgun he had found a week earlier and had kept in his glove compartment since then, because he did not want to leave the gun in his car unattended. He also said he took the gun with him because he was wearing "a very expensive jacket" and because he was in "a really bad neighborhood."

When appellant approached the apartment building, Mr. Tolbert — who by then was the only person present¹⁰ — opened the gate and let him inside. The two men stood on the steps and discussed a possible drug sale, but appellant decided not to buy the marijuana because he believed it was of poor quality. At this Tolbert became upset, and the two had a "verbal slashing back and forth." As appellant turned to leave, Mr. Tolbert grabbed him by the arm, whereupon appellant turned around and "jerked back off of him." Tolbert then punched appellant in the jaw. Appellant believed Mr. Tolbert was high on PCP.¹¹ Tolbert walked out through the front gate, then turned around and slammed it shut. Appellant tried to get out, and a "tug of war" ensued.

Appellant then drew his gun, but Tolbert simply derided him and said, "Man, I am going to kill you." He repeated the threat and reached toward his hip or waistband. At that point appellant "guess[ed]" that Tolbert "was reaching for a handgun," so appellant raised his own gun and fired.¹² Because he intended only to flee, he did not fire directly at Mr. Tolbert, but merely in "his vicinity."¹³ He denied stepping away and then coming back to continue shooting. He also testified that as soon as he fired the first shot, several other shots were fired in his direction; in particular, appellant said he saw a man in a grey sweatsuit and black skull cap shooting at him. Believing that Tolbert's friends were retaliating, he ran away. He did not know if he had hit Mr. Tolbert, and he did not see Tolbert fall to the ground.

Appellant said he...