Gethers v. US

• Decision Date: 31 October 1996
• Docket Number: No. 93-CF-1482,93-CF-1483.,93-CF-1482
• Citation: 684 A.2d 1266
• Parties: Kevin T. GETHERS, a/k/a Kelvin Gethers, Appellant, v. UNITED STATES, Appellee. Marcus L. GETHERS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

684 A.2d 1266

Kevin T. GETHERS, a/k/a Kelvin Gethers, Appellant, v. UNITED STATES, Appellee.

Marcus L. GETHERS, Appellant, v. UNITED STATES, Appellee.

Nos. 93-CF-1482, 93-CF-1483.

District of Columbia Court of Appeals.

Argued March 7, 1996.^*

Decided October 31, 1996.

M. Elizabeth Kent, Washington, DC, appointed by the court, for appellant Marcus Gethers.

Richard S. Stolker, Rockville, MD, appointed by the court, was on the brief for appellant Kevin Gethers.

Anjali Chaturvedi, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, and James A. Meade, Assistant United States Attorneys, were on the brief, for appellee. Steven W. Pelak, Assistant United States Attorney, also entered an appearance for appellee.

Before FERREN, TERRY, and RUIZ, Associate Judges.

TERRY, Associate Judge:

Kevin Gethers and his nephew Marcus Gethers appeal from their convictions of various offenses related to the shooting of Tyrone Hollis. Kevin Gethers was convicted of first-degree burglary while armed,¹ assault with intent to kill while armed,² carrying a pistol without a license,³ and possession of a firearm during a crime of violence.⁴ Marcus Gethers was convicted of first-degree burglary while armed and possession of a firearm during a crime of violence.

On appeal, both appellants contend that the trial court erred when it barred defense counsel from suggesting to the jury that an unknown third party had committed the shooting. Kevin Gethers makes the additional claim that the trial court erred by not imposing sanctions against the government for discovery violations and by permitting the jury to hear gruesome and prejudicial testimony about the victim's wounds. Finally, Marcus Gethers claims that the evidence against him was insufficient to permit his case to go to the jury. We affirm the convictions of both appellants.

I

On September 25, 1992, at about 9:30 a.m., Tyrone Hollis answered a knock on the door of his basement apartment on 13th Street, N.E. Recognizing the voice of Kevin Gethers outside, Hollis started to open the door. Just as he unlocked it, however, Kevin and Marcus Gethers pushed it open and forced their way into the apartment.⁵ Kevin Gethers pointed a gun at Hollis and yelled, "Where is the shit?" He then shot Hollis in his right side. Though wounded, Hollis fought with both men over the gun, and all three of them fell to the floor. After Marcus gained control of the gun, Hollis got a "real good look" at his face because he looked at Marcus as Marcus pointed the gun directly at him. Then, although he knew that his mother was not in the house,⁶ Hollis yelled "Mom, run" to divert the attention of his attackers. As Kevin Gethers turned to run upstairs in search of Hollis' mother, Marcus Gethers shot Hollis again in the chest, and Hollis lost consciousness.

When Hollis came to, the intruders had fled. Hollis ran to a nearby store and asked the owners, John and Maria Watson, for help, although he had difficulty breathing and speaking because of his wounds. Hollis testified at trial that he identified both Kevin and Marcus Gethers as his attackers to the Watsons. John Watson testified, however, that Hollis had said only that he had been shot by Kevin Gethers, and Maria Watson stated that she wrote down only the name of Kevin Gethers when Hollis said who had shot him. Mr. Watson helped Hollis to a chair while his wife called for an ambulance. While they waited for the ambulance to arrive, Metropolitan Police Officer Anthony Wallace came into the store as he walked his regular neighborhood beat. Seeing the officer, Hollis exclaimed, "Wallace, Wallace, I know who shot me," and named Kevin Gethers as the shooter, adding, "I think I am going to die." The ambulance came almost immediately thereafter, and Hollis was taken to the MedStar Shock Trauma Unit at Washington Hospital Center.

Hollis' wounds were severe. Dr. Vikram K. Paul, the Associate Director of the Trauma Program at Washington Hospital Center, testified that Hollis was in cardiac and respiratory distress and in shock when he arrived in the emergency room. He had bullet wounds in his midsection, his lower left chest, the left side of his flank, and the upper left portion of his back. When emergency room personnel found that his left lung was not functioning, they rushed him into the operating room. Four hours of surgery revealed a substantial amount of bleeding in and around Hollis' heart, trauma to the heart, bullet holes in his stomach and his transverse colon, and damage to his rib cage and collar bone. To repair all of this damage and save Hollis' life, the surgeons made a "post mortem" incision, i.e., an incision that ran from his collar bone to the bottom of his navel. As a result, Dr. Paul testified, Hollis suffered a great deal of pain.

On the day of the shooting, Detectives James Johnson and Gerald Rich went to the hospital to interview Hollis, but the doctors would not let them speak with him because he was in so much pain. When the detectives returned later that evening, Hollis was able to nod his head when Detective Johnson asked him if Kevin Gethers had shot him. Because of Hollis' extreme pain, a nurse asked the officers to stop questioning him, and they left.⁷ The next day, September 26, Detective Rich went to the hospital to talk to Hollis, and again he identified the shooter as Kevin Gethers. His ability to speak was hampered by the tubes that had been placed in his mouth, so Hollis scribbled a note in Detective Rich's notebook indicating that a second person had taken part in the shooting.

On September 28 Detectives Rich and Johnson, along with Detective William White, returned once again to the hospital. Hollis was still in serious condition and in great pain, so that the detectives were able to interview him for only about five minutes. The detectives, however, had brought with them an array of photographs, and from that array Hollis picked out a picture of Kevin Gethers. Johnson testified that before they left, Hollis told them that "there was two people who was there and did the shooting." About a week after the shooting, while still in the hospital, Hollis told his mother that the second shooter was Marcus Gethers. She testified at trial that she immediately reported this information to the police.

Detectives Johnson and Rich returned to Hollis' bedside on October 17 to ask him about several matters related to the shooting, including the identity of the second gunman. By this time, according to Johnson, Hollis was in much better physical condition and was able to speak freely. Hollis told the detectives that Marcus Gethers was the other man who had shot him. On October 20, just after Hollis was released from the hospital, Johnson and Rich again interviewed him and showed him another array of photographs. From this array Hollis identified Marcus Gethers as the second shooter.

At trial, counsel for Kevin Gethers began his opening statement by suggesting to the jury that an unnamed, unknown third party was responsible for the shooting. He stated that because Hollis, a drug dealer, sold "burn bags," i.e., bags of white powder which contained no cocaine, on the street, he most likely had been gunned down by a disgruntled customer. After counsel had completed his statement, the court called defense counsel to the bench and informed him that "in the area of defending on a theory that somebody else committed a crime ... you must not only be able to present reliable evidence to show that that occurred, but you also must present evidence that clearly links an individual to the commission of that crime.... You can't just throw out some nebulous suggestion that because someone may have angered other people, they may have done something to him." Counsel conceded that he could not point to a particular person as the likely shooter ("I'm not trying to prove somebody else did it") and that he was only trying to attack Hollis' credibility. After further discussion, the court directed counsel to forego this defense if he could not identify a specific individual as the likely perpetrator:

You can't just present evidence suggesting that some universe of people out there may have a motive or incentive to perpetrate a crime against someone, because of what that person allegedly did . . . . You've got to be able to not only present reliable and credible evidence on that issue, but you also have to present evidence that clearly links someone in particular to the commission of that crime.

* * * * * *

. . . You want to introduce evidence that he allegedly sold burn bags and that conceivably was the reason he got shot, because that conceivably would create a sufficient motive for someone to do that.

And I think it's all too tenuous ... because even if you show ... that he did these other things and you impeach him on it, and conceivably someone may have had a motive, that doesn't mean that those individuals carried out that motive. So you need more than just the potential that someone was angry and had an incentive to shoot him.

* * * * * *

. . . Even if you show that other people threatened him because he sold burn bags, that alone would not be sufficient to show that those other people did, in fact, carry out their threats in reference to this shooting.. . . All you're trying to do is throw something out there for the jury to speculate about . . . .

Kevin Gethers presented an alibi defense through the testimony of four witnesses, but he did not testify himself. His defense was that on the morning of the shooting he was in Emporia, Virginia, 178 miles from the District of Columbia. Marcus Gethers, who lived in the District of Columbia, testified that he was "not close" to his uncle Kevin. He said that on the date in question he was at home all morning; his sister and another uncle, James Hammond, corroborated this testimony. Marcus Gethers also said that, although he was...