Hartridge v. U.S., No. 97-CF-1867.

Decision Date23 March 2006
Docket NumberNo. 97-CF-1867.,No. 97-CF-2028.,No. 98-CF-153.
Citation896 A.2d 198
PartiesThadduse Lee HARTRIDGE, James Thomas Cullison & Mark A. Ford, Appellants, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Richard K. Gilbert, appointed by the court, for appellant Hartridge.

Annie R. Alexander, appointed by the court, for appellant Cullison.

Joshua D. Greenberg, Washington, with whom Robert A. Long, Jr. and Bruce A. Baird were on the brief, for appellant Ford.

Margaret Chriss, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Assistant United States Attorney at the time the brief was filed, were on the brief, for appellee.

Before FARRELL, REID, and GLICKMAN, Associate Judges.

Opinion for the court by Associate Judge REID.

REID, Associate Judge:

These are consolidated appeals by appellants Thadduse Lee Hartridge,1 James Thomas Cullison, and Mark A. Ford.2 They were charged with first-degree murder while armed (premeditated) of Andre Wynn, in violation of D.C.Code §§ 22-2401, -3202 (1996);3 possession of a firearm during a crime of violence (PFCV), in violation of § 22-3204;4 and carrying a pistol without a license (CPWL), in violation of § 22-3204(a).5 They were convicted of the lesser-included charge of second-degree murder while armed, as well as the weapon charges.6 All of the appellants claim that the trial court (1) improperly allowed the introduction of "other crimes" evidence against them; (2) permitted improper argument by the prosecutor; and that (3) their conviction for carrying a pistol without a license violated their Second Amendment constitutional right to bear arms. Mr. Hartridge also claims that the indictment against him should be dismissed with prejudice because he was denied his Sixth Amendment constitutional right to a speedy trial. Mr. Cullison argues, in addition, that the trial court erred (1) by not granting his motion for judgment of acquittal on the ground that the evidence was insufficient as a matter of law to establish his guilt; and (2) by not disallowing a government witness's identification of him because of an impermissibly suggestive photo array.7 Mr. Ford also contends that the trial court improperly admitted into evidence the grand jury testimony of a witness, who asserted that Mr. Ford confessed killing Mr. Wynn, even though that witness recanted her grand jury testimony at trial. We affirm the convictions as to all of the appellants.

FACTUAL SUMMARY

The government presented evidence showing that Andre Wynn was shot to death on November 8, 1993. Leon Shannon testified that he had known Mr. Hartridge, whom he identified in court, for "three or four years maybe," and saw him twice on the day of Mr. Wynn's murder— once in the morning in the "cut leading out to the 200 block of K Street," (in the Southwest quadrant of the District of Columbia) and the second time, later that same day in "[t]he 200 block of K Street" when Mr. Wynn was shot. Mr. Wynn was the "uncle of [Mr. Shannon's] two kids." Mr. Hartridge, who "wasn't acting normal" asked Mr. Shannon how his friend, Shannon Battle, "g[o]t locked up." Mr. Hartridge was "angry." Later, Mr. Shannon observed Mr. Wynn and Mr. Hartridge "close" together and "talking"; his view was unobstructed. The men had "words" and Mr. Hartridge "punch[ed] [Mr. Wynn] in the face." When Mr. Wynn hit Mr. Hartridge, Mr. Hartridge "told [the person who was with him, identified by Mr. Shannon as Mr. Ford] to bust him, kill his a* *." Mr. Ford "pulled out a 9-millimeter [gun and] shot [Mr. Wynn] down." Mr. Shannon stated that Government Exhibit 35, a 9-millimeter gun, "looked just like" the one used during the shooting. Mr. Ford shot Mr. Wynn "several times."

A couple of days after the shooting, Mr. Shannon met with Metropolitan Police Department ("MPD") Detective Willie Toland who showed him "two sets of photographs." Mr. Shannon picked Mr. Hartridge out of the first set of photographs, and Mr. Ford from the second set, as the men he saw in the 200 block of K Street on the day of Mr. Wynn's murder. He was "sure" of his identification of these two men.

Mr. Shannon acknowledged on direct examination that he was convicted in 1991 on a charge of possession of cocaine. On cross-examination, defense counsel sought not only to cast doubt on his credibility, but also to raise questions as to the reasons why he was a government witness. For example, he was asked about his September 1995 arrest for possession of marijuana, and his arrest on February 28, 1996, five months before trial in this case, for assault. Both cases were dropped by the prosecution. In addition, Mr. Shannon confirmed that he lived with Mr. Wynn's sister and they have two children. He also acknowledged that he told an investigator for the Public Defender Service that he did not see who fired the shots that killed Mr. Wynn. He explained that he "was not telling [the PDS investigator] nothing in the streets . . . in front of all [those] people." Counsel for Mr. Ford attempted to demonstrate that Mr. Shannon did not actually see who shot Mr. Wynn, and that he did not really identify Mr. Ford's photo as the shooter. And counsel for Mr. Hartridge sought to establish that Mr. Shannon did not hear his client speak with Mr. Wynn on the day of his murder, that he had not described the events of that day accurately, and that he and Mr. Wynn were selling drugs on that day. Both counsel for Mr. Ford and Mr. Hartridge emphasized Mr. Shannon's three-week delay before speaking with the MPD.

Prior to the day of Mr. Wynn's murder, Theresa Givens, another government witness, had seen Mr. Hartridge with two different guns, one which was silver and another which was black and had a brown handle. However, the trial court precluded any testimony, in the presence of the jury, about two guns, or a gun with a silver handle. When she testified before the jury, Ms. Givens identified a picture of Mr. Wynn and related what she saw on the day of his murder.

Ms. Givens was standing near the corner of Delaware Avenue and K Street, when she heard a gunshot. She saw Mr. Wynn "standing up in the street in the middle . . . and [he was] turning around in the middle of a circle saying ouch . . . . He fell to the ground." Mr. Hartridge and Mr. Cullison were standing "[o]ver top of [Mr. Wynn]." While Mr. Hartridge and Mr. Cullison were standing over Mr. Wynn, with their backs toward Ms. Givens, she heard gunfire and witnessed the men "unloading the gun." Mr. Hartridge and Mr. Cullison "went hand-to-hand to each other like they were switching something around." Mr. Hartridge also "was kicking" Mr. Wynn. Mr. Ford was standing nearby in the "cut."

When asked whether she had seen Mr. Hartridge with a gun prior to the day on which Mr. Wynn was shot, Ms. Givens declared that she had seen him with a gun "in [her] mother's house two days before the [shooting]." Sometime after Mr. Wynn's murder, Ms. Givens picked out photographs of Mr. Cullison and Mr. Ford. When shown another group of photographs, Ms. Givens did not tell the police that she recognized the picture of Mr. Hartridge, even though she did, because she "was terrified."

Kivory P. Proctor testified that he was in a back alley on K Street, Southwest on the morning of the day Mr. Wynn was killed. He watched as the police arrested Shannon Battle "in the cut away of Delaware Avenue." About twenty minutes later, he saw Mr. Hartridge, whom he had known for about eight years, in the same back alley with Datwon Paris, Mr. Ford and Mr. Cullison. The men were standing near the home of Mr. Paris' girlfriend. Mr. Hartridge had Mr. Paris "by the collar of the shirt." Mr. Cullison was "within a foot" of Mr. Paris and "had a gun in his hand." It was a "small handgun, black." Mr. Proctor left the alley and eventually walked towards the "cut away" at Delaware and K. There he saw Mr. Wynn "lying on the fence." Mr. Hartridge was "[s]tanding in front of [him]." He also saw Mr. Ford and Mr. Cullison nearby. He spoke with Mr. Wynn and Mr. Hartridge, and then went "[a]cross the street." He "heard gunshots" and "turned around to see where they were coming from." He saw Mr. Ford "shooting the gun, shooting [Mr. Wynn]." Mr. Wynn fell to the ground, and Mr. Proctor "continued to go around the corner to get away from the gunshots." He heard more gunshots, the last three of which were "slower and louder."

Mr. Proctor gave a statement to the police approximately two days after the shooting, but did not identify anyone because he "was afraid to" and "didn't want to get involved." Soon after he gave the statement, he was shown a photo array but did not identify anyone, even though he recognized Mr. Hartridge's picture. However, on December 21, 1993, he attended a lineup and identified Mr. Ford. Some time in February 1994, Mr. Proctor viewed a photo array and picked out Mr. Hartridge. And, on a date that he did not recall, Mr. Proctor was shown other photos and picked out Mr. Cullison.

On the day of the November 1993, murder of Mr. Wynn, Datwon Paris, who had two prior drug convictions (attempted distribution in 1994 and possession with intent to distribute in 1994, as well as a conviction in 1994 for transporting a hand gun during a drug offense), lived in the 900 block of Delaware Avenue, S.W. He saw Mr. Hartridge, whom he identified in court, in a cut beside his house on the day of the murder. Mr. Hartridge was standing with a man named Shannon Battle. When the police arrived on the scene, Mr. Battle "ran through the cut" but was apprehended and "got locked up for having a handgun on him." Mr. Hartridge "started. . . going off . . ., acting wild, talking to the police . . .," but Mr. Paris did not hear what Mr. Hartridge was saying. Mr. Paris identified Mr. Cullison and Mr. Ford as persons who also...

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