Hammon v. US

• Decision Date: 15 May 1997
• Docket Number: No. 93-CF-316,93-CF-321 and 93-CF-388.,93-CF-316
• Citation: 695 A.2d 97
• Parties: Ernest HAMMON, Eric Porter, and Ronald Gray, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

695 A.2d 97

Ernest HAMMON, Eric Porter, and Ronald Gray, Appellants, v. UNITED STATES, Appellee.

Nos. 93-CF-316, 93-CF-321 and 93-CF-388.

District of Columbia Court of Appeals.

Argued March 19, 1997.

Decided May 15, 1997.

Gregory C. Powell, appointed by the court, Centreville, MD, filed an appearance, for appellant Hammon and adopted the arguments of appellants Porter and Gray.

Richard Todd Hunter, appointed by the court, for appellant Porter.

William T. Morrison, appointed by the court, for appellant Gray.

Rachel Adelman-Pierson, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN and STEADMAN, Associate Judges, and PRYOR, Senior Judge.

FERREN, Associate Judge:

On December 18, 1992, after a jury trial, Ernest "June" Hammon, Eric Porter, and Ronald Gray were convicted of aiding and abetting the involuntary manslaughter¹ of Charles "Dino" Fisher.² They argue on appeal that the trial court erred by declining to conduct an in camera inspection of "treatment center" records from Florida pertaining to the competency of a government juvenile witness; by failing to scrutinize District of Columbia and Florida records of the same witness for Brady³ and Jencks Act⁴ violations; and by giving the jury an improper instruction on aiding and abetting. Appellants also argue that the evidence to support their convictions was insufficient for two reasons: there was inadequate proof of the proximate cause of Fisher's death, and the government failed to prove the existence of a principal — a required predicate for aiding and abetting. We affirm.

I.

At trial, the government's evidence showed that Charles Fisher died as a result of wounds from a fight with a number of individuals. In the course of the fight, Fisher fell and hit his head on concrete steps. The Chief Medical Examiner for the District testified that Fisher died of blunt head trauma consistent with either a blow or a fall.

The police arrested several individuals in connection with Fisher's death, including appellants and a minor, A.W.⁵ A.W. agreed to plead guilty to the second degree murder of Fisher in exchange for dismissal of a murder charge in another case. As a result of his plea, A.W. was sent to a treatment center in Florida.

When appellants' trial began, questions remained as to whether the government or any of the appellants would call A.W. as a witness. As a precaution, citing the Jencks Act, appellants asked for (but did not receive) the transcript of A.W.'s juvenile disposition hearing.⁶ The government said it was having difficulty obtaining A.W. from Florida and ultimately told appellants and the court that, because it would take two weeks to arrange for A.W.'s appearance in court, the government would not call him as a witness. The trial court then ruled that although A.W. was available, his presence had not been requested and thus his statement at his disposition hearing could not be introduced as testimony of an unavailable witness.

The government presented several witnesses. Michael Glover testified that appellants Porter and Gray had been present at the crime scene. Detective Jeffery Mayberry of the Metropolitan Police Department (MPD) confirmed that Glover had identified Gray and Porter from a photo array before trial. MPD Officer Christopher Leary, who found Fisher's body, testified that he had seen Gray leaving the scene as he arrived. Tyrone Gathers testified that he had seen Gray, Porter, and "Fishbone" (an alias of A.W.) fighting with Fisher when Fisher fell and hit his head on the stairs. The government called Tandra Vaugn, who claimed she could not remember any of the events that had taken place but confirmed that she had identified Hammon, Porter, and Gray to the grand jury as present at the scene. The government also called the District's Chief Medical Examiner, who testified as to the cause of death.

The government then changed its mind about calling A.W. It asked for a continuance for the specific purpose of obtaining A.W. and presenting his testimony. Appellants protested. In addition to arguing unfair surprise, they proffered that A.W. was in an "insane asylum" in Florida,⁷ that lawyers familiar with A.W. had "indicated he suffers from a psychiatric disorder," and that a police detective, Fox, involved in investigating A.W. had told defense counsel that A.W. was implicated in several murders.⁸ Appellants accordingly asked the court to conduct an in camera review of A.W.'s juvenile files from both the District and Florida to determine their possible bearing on A.W.'s competency to testify, as well as to ascertain whether they contained Jencks and Brady material. Appellants also asked the court to hold a hearing to determine whether A.W. was competent to testify. The trial judge agreed to a continuance so that the government could bring A.W. to the District. The judge also agreed, during the interim, to review in camera the District's files on A.W.⁹

At a hearing to resolve issues pertaining to A.W., Judge Abrecht announced that she had conducted a "preliminary review" of the District's records on A.W. and found no "red flag" to suggest that A.W. was incompetent to testify. She therefore declined to subpoena A.W.'s Florida records, ruling that the defense proffer simply did not raise a competency issue in light of the information contained in the District's records. Two days later, Judge Abrecht announced she had done a "complete review" of the District's records on A.W. and confirmed her previous ruling. She also ruled that the records were not subject to the Jencks Act and Brady:

The Government in this case is the U.S. Government, which, under the case law, as I read it, specifically Frye¹⁰ and Collins,¹¹ is not obligated to obtain and turn over information from the Juvenile Social files or from juvenile institutions, under either Jencks or Brady, because those materials are not in the possession of the Government, and they need not go through any hoops to obtain possession, to be able to then have them for Brady or Jencks purposes.

So, I do not see any basis under Jencks or Brady, to be looking at anything contained in them on Brady or Jencks grounds.

When trial resumed, A.W. testified that he had been involved in the fight with Fisher when Fisher fell and hit his head. He positively identified Hammon, Porter, and Gray as participants. The government also brought out A.W.'s plea to second degree murder at his disposition hearing, as well as his current status as a resident of a "treatment center" in Florida. Defense attorneys then cross-examined A.W. about his drinking and possible drug use at the time the events took place and also questioned him about his plea bargain. But none of the defense attorneys cross-examined A.W. about medical or mental health treatment he may have received or about the nature of the "treatment center" in Florida. In closing argument, the defense stressed A.W.'s alcohol use and his plea bargain as points against A.W.'s credibility and attempted to shift the blame for Fisher's death entirely onto A.W.

Among others, Judge Abrecht gave the jury the following "aiding and abetting" instruction:

The government has proceeded on an aiding and abetting theory. You may find a defendant guilty of a crime without finding that he personally committed each of the acts that make up the crime. Any person who in some way intentionally participates in the commission of the crime aids and abets the principal offender. He, therefore, is as guilty of the crime as he would be if he had personally committed each of the acts that make up the crime.

To find that a Defendant aided and abetted in committing a crime you must find that the Defendant knowingly associated himself with the person or persons who committed the crime, that he participated in the crime as something he wished to bring about, and that he intended by his actions to make it succeed. Some affirmative conduct by a Defendant to help in planning or carrying out the crime is necessary. Mere physical presence by a Defendant at the place and time of the crime is committed is not by itself sufficient to establish his guilt. However, mere physical presence is enough if it is intended to help the principal offender and, in fact, does help him.

The Government is not required to prove that anyone discussed or agreed upon a specific time or method of committing the crime, nor need the Government prove that the principal offender and the person alleged to be the aider and abetter directly communicated with each other. It is not necessary that the Defendant have had the same intent that the principal offender had when the crime was committed or that he intended to commit the particular crime committed by the principal offender.

An aider and abetter is legally responsible for the acts of other persons that are the natural and probable consequences of the crime in which he intentionally participates. It is not necessary that all the people who committed the crime be caught or identified. It is sufficient if you find beyond a reasonable doubt that the crime was committed by someone and that the Defendant knowingly and intentionally aided and abetted the principal offenders in committing the crime.

(Emphasis added.)

The defense objected to the italicized language on the ground that it varied impermissibly from the standard instruction in the Standardized Criminal Jury Instructions for the District of Columbia, No. 4.02 (3d ed.1978) (the "Red Book").¹² The judge denied the objection and refused to change the instruction or to supplement it in accordance with the defense request. The jury found Hammon, Porter, and Gray guilty of involuntary manslaughter on a theory of aiding and abetting. This appeal followed.

II.

Appellants argue, first, that the trial court committed reversible error by refusing to...