Gordon v. United States
| Decision Date | 17 November 2022 |
| Docket Number | 18-CF-1319 |
| Citation | 285 A.3d 199 |
| Parties | Kelby R. GORDON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Mindy Daniels, for appellant.
David B. Goodhand, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, Elizabeth Trosman, Chrisellen R. Kolb, Lindsey Merikas, and Monica Trigoso, Assistant United States Attorneys, were on the brief, for appellee.
Samia Fam, with whom Shilpa S. Satoskar and Stefanie Schneider, filed a brief on behalf of the Public Defender Service, as amicus curiae in support of appellant.
Before Blackburne-Rigsby, Chief Judge, and McLeese and Deahl, Associate Judges.
Opinion by Associate Judge McLeese, concurring in part and dissenting in part, at page 223.
Appellant Kelby Gordon was convicted of two counts of second-degree murder, one count of assault with intent to kill while armed ("AWIKA"), and three counts of possession of a firearm during a crime of violence ("PFCV").1 On appeal, he argues that there was insufficient evidence to sustain his conviction for AWIKA because the AWIKA "victim" was an unintended bystander and he therefore did not act with any intent toward her, let alone intent to kill. Furthermore, appellant argues that the trial court erred by allowing the jury to find him guilty of AWIKA with respect to the unintended, uninjured bystander based on the common law doctrine of transferred intent. In O'Connor v. United States , 399 A.2d 21 (D.C. 1979), this court explained that transferred intent "provides that when a defendant purposely attempts to kill one person but by mistake or accident kills another, the felonious intent of the defendant will be transferred from the intended victim to the actual, unintended victim." Id. at 24. However, the issue of whether the doctrine of transferred intent can supply the necessary mens rea to support a conviction of AWIKA as to an unintended bystander who is not injured is a matter of first impression. For the reasons that follow, we hold that transferred intent does not apply in this case and we therefore vacate appellant's AWIKA conviction.
Appellant also argues that he is entitled to a new trial based on four evidentiary issues and two issues related to jury instructions. Finally, he argues that he is entitled to resentencing and an amended judgment. We reject appellant's argument that he is entitled to a new trial, but we agree that he is entitled to resentencing and an amended judgment, and therefore remand for the trial court to address these issues.
On March 24, 2016, around 11:15 am, Gabriel Turner left his mother's apartment located in the Parkchester Apartments complex in the Southeast quadrant of D.C., and walked toward a nearby bus stop on Martin Luther King, Jr. Avenue. The events that followed were captured by a surveillance camera monitoring the apartment complex, which first shows Mr. Turner walking on a sidewalk toward his bus stop. A few seconds later, two other men enter the frame: a Black man with long dreadlocks ("the shooter") chasing a third man ("John Doe") down the same sidewalk. As John Doe passes by Mr. Turner, the shooter points his weapon in the direction of the two men in front of him. At that moment, John Doe turns his head toward the shooter, but keeps running and exits the frame. At about the same time, Mr. Turner collapses onto the ground, and the shooter retreats and runs in the opposite direction.
Additional surveillance cameras monitoring the apartment complex captured the shooter's next movements. From other angles, he is seen crossing the street and descending down a stairway and into the front door of 2716 Wade Road, SE.
At the time of the shooting, Carol Morris was home at her second-floor apartment on Martin Luther King Avenue, which was approximately 100-150 yards from the shooting scene. She was lying in bed when she heard several gunshots, including one that shattered her living room window and another that shattered her bedroom window. She ran to the window to look and saw a person lying still on the sidewalk below her building.
Detective Thomas O'Donnell arrived on the scene after Mr. Turner had been transported to the hospital, where he later died from his injuries. He attempted to speak to community members and reviewed footage from nearby surveillance cameras. A crime-scene officer also recovered a bullet that had pierced the bedroom window of Ms. Morris's apartment. One bullet had gone through Ms. Morris's bedroom and pierced a wall; the other went through her living room and pierced a mirror hanging on the door of a utility closet, lodging itself about half an inch into the wall, near a water heater.
Detective O'Donnell soon learned that Detective Lavinia Quigley was conducting undercover operations in the area, so he contacted her and told that her he was looking for a "black male, long dreads, black jacket." Detective Quigley told Detective O'Donnell that his description sounded like a man she knew by the name of "Mill or Millie." The next day, Detective O'Donnell showed Detective Quigley the surveillance video, and she identified the shooter as "Millie."
Detective O'Donnell also learned that a person named Nadia Malloy lived in the apartment at 2716 Wade Road, SE, which the shooter entered after the attack. A few weeks later, Detective O'Donnell interviewed Ms. Malloy. During the interview, she said that appellant was her former boyfriend, and that he was involved in the shooting. According to Ms. Malloy, appellant told her that he shot and killed an innocent person and ran into her house afterward. Malloy also identified him in a photograph and said he went by the nickname "Mill." Police arrested appellant shortly after this interview. A grand jury subsequently indicted appellant for first-degree murder and felony murder, in violation of D.C. Code §§ 22-2101, - 4502 ; assault with intent to kill while armed, in violation of D.C. Code §§ 22-401, - 4502 ; attempted robbery while armed, in violation of D.C. Code §§ 22-1803, - 2801, - 4502 ; and possession of a firearm during a crime of violence, in violation of D.C. Code § 22-4504(b).
At trial, the government presented evidence that appellant confessed to two individuals: Nadia Malloy, his former girlfriend, and Allen Culver, whom he spoke to in the D.C. jail while awaiting trial. The government's evidence also consisted of: the surveillance footage; Detective Quigley's identification of appellant; cell-tower tracking analysis that placed appellant's cell phone in the area of the shooting at the time it took place; evidence that there were six casings from a .40 caliber gun found on the scene; testimony that appellant carried a Glock-like gun; and testimony from a firearms expert that the six cartridge casings found on the scene were likely fired from the same type of Glock semiautomatic pistol.
During the defense case, appellant called Detective O'Donnell to testify. Detective O'Donnell testified that, from the surveillance footage, it appeared that John Doe also had a handgun at the time of the shooting, suggesting that John Doe could have been the shooter that killed Mr. Turner.
Following the trial, a jury convicted appellant of two counts of the lesser-included offense of second-degree murder, AWIKA, and three counts of PFCV. This appeal followed.
Appellant argues on appeal that there was insufficient evidence presented at trial to sustain his conviction of AWIKA. He also contends that there were several errors at trial, which — individually or cumulatively — deprived him of his right to a fair trial. Specifically, appellant argues that the trial court: (1) admitted prejudicial "other crimes" evidence; (2) allowed a police witness to make the ultimate determination of guilt, thereby invading the province of the jury; (3) erroneously admitted evidence of appellant's threats to a witness; (4) erroneously admitted toolmark evidence; and (5) read prejudicial jury instructions. Additionally, appellant contends that he is entitled to an amended judgment based on merger, and resentencing due to a conflict between the written judgment and the oral judgment imposed by the court. We consider each issue in turn.
At trial, appellant made a motion for judgment of acquittal ("MJOA"), arguing that the government failed to prove the elements of AWIKA. In response, the government argued that there was evidence that appellant intended to shoot John Doe, and, under a theory of "transferred intent or concurrent intent, then that intention transfers to the decedent for the homicide but also to Carol Morris for the assault with intent to kill while armed."
The trial court denied the motion, finding that there was evidence that appellant had intent to rob John Doe; the surveillance footage supports an inference of intent to kill John Doe; and appellant fired multiple shots, two of which ended up in Ms. Morris's house. Based on that evidence, the trial court reasoned that "the evidence supports that [appellant] was not just trying to kill the John Doe and fired in a manner that had rounds entering Ms. Morris's apartment, but they also shot Mr. Gabriel Turner in the back ...."2 Over defense counsel's objection, the court instructed the jury as follows: "If the government proves beyond a reasonable doubt that Kelby Gordon fired shots actually intending to kill John Doe, but instead actually assaulted Carol Morris, an unintended victim, then by operation of law, the defendant's intent to kill is transferred from John Doe to Carol Morris."
In his brief, appellant argued that the AWIKA conviction should be reversed because he could not simultaneously be held liable for second-degree murder and AWIKA on a theory of transferred intent. In other words, appellant argued that his intent to kill could only be transferred once – either to Mr....
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