HOWARD v. U.S.

• Decision Date: 30 March 1995
• Docket Number: No. 92-CF-1019,No. 92-CF-1200,92-CF-1019,92-CF-1200
• Citation: 656 A.2d 1106
• Parties: Charles R. HOWARD, Jr., Appellant, v. UNITED STATES, Appellee. Ronald WILLIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

656 A.2d 1106

Charles R. HOWARD, Jr., Appellant, v. UNITED STATES, Appellee.Ronald WILLIS, Appellant, v. UNITED STATES, Appellee.

Nos. 92-CF-1019, 92-CF-1200.

District of Columbia Court of Appeals.

Argued September 28, 1994.

Decided February 6, 1995.

As Amended February 23 and March 30, 1995.

APPEAL FROM THE SUPERIOR COURT, PETER H. WOLF, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Douglas Wham, appointed by the court, for appellant Howard.

Monoranjan Bezboruah, appointed by the court, for appellant Willis.

Robert T. Swanson, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Roy W. McLeese, III, and Robert Walker, Asst. U.S. Attys., were on the brief, for appellee.

Before WAGNER, Chief Judge, and FERREN and TERRY, Associate Judges.

FERREN, Associate Judge:

A jury convicted Charles Howard and Ronald Willis on two counts each of assault with intent to murder while armed, D.C.Code §§ 22-503, -2403, -3202 (1989 Repl. and 1994 Supp.), two counts each of possession of a firearm during a crime of violence, id., § 22-3204(b), one count each of carrying a pistol without a license, id., § 22-3204(a), two counts each of possession of an unregistered firearm, id., § 6-2311(a) (1989 Repl.), and two counts each of unlawful possession of ammunition, id., § 6-2361(3). In this consolidated appeal, both appellants contend the trial court erred in refusing to instruct the jury on self-defense and in excluding evidence of the complainant's prior assaultive acts against Howard. Willis also argues the trial court erred in denying his motion for a judgment of acquittal; he claims the evidence was insufficient to prove beyond a reasonable doubt that he was an aider and abettor, let alone a principal. Finally, Howard contends the trial court erred in three other ways: precluding all communication between Howard and his counsel about information that allegedly showed a government witness's potential bias; restricting Howard's right to cross-examine the witness about hispotential bias; and instructing the jury on transferred intent.

We conclude that the trial court erred by excluding the proffered evidence of the complainant's prior assaultive acts against Howard. This exclusion also substantially affected Willis's defense against charges that he had aided and abetted Howard. Accordingly, because the court's error was of constitutional magnitude and was not harmless beyond a reasonable doubt, we must reverse appellant's convictions for assault with intent to murder while armed and remand as to those charges. We affirm as to all other counts.¹

I.

On the evening of February 11, 1991, Lonnie Boone and Derrick Ross were at the Farmers' Market in Southeast Washington. As Boone was coming out of a small liquor store at about 9:30 p.m., he saw appellants Howard and Willis. There was conflicting testimony about what happened next. According to Boone's testimony at trial, Howard cut in front of Boone as Boone was walking toward a telephone and said to Boone, "I heard you and Kevin supposed to be — try and kill [me]." Boone replied, "[W]ho told you that?" At that point, as Boone continued to walk toward the telephone, Howard swung and hit him in the ear. Boone then ran out of the Farmers' Market and up a hill toward his home. On the way home, Boone met a friend, Marvin (Kevin) Womack. He told Womack about his encounter with Howard. The two were soon joined by Derrick Ross.

Appellant Howard's version of the same events was slightly different. He testified at trial that when he saw Boone and Ross coming out of the liquor store, he called Boone over and asked him, "Why did they try to kill me?" Boone replied that he did not know what Howard was talking about, to which Howard responded, "I saw y'all. I saw y'all when y'all was — y'all had shot at me one day." Boone answered, "that wasn't me, that was Kevin [Womack]." Howard then said, "[Y]ou was with him," and Boone reiterated, "I wasn't with him." On direct examination, Howard did not mention swinging at Boone. On cross-examination, however, Howard testified that, after the exchange of words, he and Boone were "about to fight." He said, they swung at each other and missed; Boone then ran away.

Howard further testified that, after Boone had run away, Willis told Howard that he had seen Derrick Ross take a gun out during Howard's altercation with Boone. Howard and Willis then left the Farmers' Market and went to Howard's house. They retrieved a sawed-off shotgun and a .25 caliber semiautomatic pistol from under some dirt in Howard's back yard.

Howard and Willis then drove to Boone's house. Howard testified that their purpose was to "just call everything off and let everything be. I mean let it be, let's not have no problems." Howard added that the reason for taking the weapons was "[b]ecause I know these guys and Derrick [Ross] had a gun, and I was not going around there without my protection." According to Howard, when they arrived at Boone's house, he and Willis got out of the car and began walking up the street. Howard was carrying the sawed-off shotgun concealed beneath his coat; Willis was carrying the pistol.

As Howard and Willis were walking, they saw Kevin Womack, Lonnie Boone, and Derrick Ross in a parking lot some distance ahead of them. There was conflicting testimony about what happened next. According to the government's witnesses, Boone and Womack, when the parties were about twenty feet apart, Howard said to Womack, "I heard you supposed to be beefing with me." Howard then pulled out the sawed-off shotgun. Womack replied, "I ain't got no beef with you" and began backing away. Womack testified that, as he was backing away, he was holding his hands up. At this point, according to Womack, Boone cut in front of Womack and began running. Womack furthertestified that Howard then fired a shot that struck Womack in the shoulder. According to Boone, as Boone was running a second shot struck a metal gate near him. Both government witnesses testified that Howard then took the pistol from Willis and fired again at Boone. Boone testified that he kept running until he was across the street. When Boone looked back, he saw Howard standing within seven to ten feet of Womack, firing the pistol at Womack as he lay on the ground. Womack testified that, in addition to receiving his first wound, in the shoulder, he was hit twice in the back and a third time on the right side below the rib cage. Both Boone and Womack testified that they had not been carrying weapons at the time of the shooting.

Derrick Ross also testified for the government. He said that he had been carrying a weapon at the Farmers' Market but that he no longer had it when he met up with Boone and Womack. Ross also testified that Boone and Womack had not appeared seared when Howard first confronted them, and that Ross had concluded from their lack of fear that one of them had been holding a gun. On cross-examination, Ross testified that before Howard had shot Womack, Womack had made gestures that would have caused a policeman to shoot him.

Appellant Howard's description of the shooting was quite different from Boone's and Womack's. Howard testified for the defense that when he and Willis had encountered Womack, Boone, and Ross, Howard had been in front; Willis had been about ten feet behind him. When Howard had come within four feet of Womack, the two had had a brief conversation. At this time, according to Howard, the shotgun was completely concealed beneath his coat. Howard then testified that, during the conversation, Womack had been "wiggling" or rocking from side to side. Womack had "made a motion" as if "[h]e was grabbing a gun to try to shoot"; at the same moment Boone had "cut across." Howard acknowledged that he had drawn the shotgun and shot twice in the direction of Womack, but he had not shot at Boone, who was running away. Howard then had turned around and run toward Willis. When Howard reached Willis, who had been looking back toward Womack, Willis told Howard to watch out. Howard testified that, upon looking back, he had seen Womack pulling out "with his right hand, a black gun." Howard grabbed the pistol from Willis and fired quickly toward Womack. Howard did not recall how many shots he had fired. Howard testified that Womack had been standing up at the time. Howard and Willis then had left the area and returned to Howard's home.

II.

We initially consider several contentions that can be disposed of briefly.

A.

Appellant Willis contends the trial court erred in denying his motion for judgment of acquittal on all counts. This court may reverse the trial court's denial of such a motion only by finding that the evidence, viewed in the light most favorable to the government, is such that no reasonable juror could fairly find guilt beyond a reasonable doubt. See Gayden v. United States, 584 A.2d 578, 579-80 (D.C. 1990) cert. denied, 502 U.S. 843, 112 S.Ct. 137, 116 L.Ed.2d 104 (1991); Thompson v. United States, 567 A.2d 907, 908 (D.C. 1989); Patterson v. United States, 479 A.2d 335, 338 (D.C. 1984). Willis argues that the evidence shows only that he was present and that proof of mere presence is insufficient to sustain his convictions for aiding and abetting assault with intent to commit murder while armed.

We cannot agree with Willis's view of the evidence. Howard testified that Willis had helped him dig up the weapons, accompanied him to Boone's house, held one of the guns, warned Howard that he was in danger, handed the gun to Howard so that he could shoot Womack, and left the scene with Howard. This evidence provides more than a sufficient basis for finding that Willis was not merely present but, rather, took actions that "facilitate[d] the unlawful deed." Settles v. United States, 522 A.2d 348, 357 (D.C. 1987) (quoting Bailey v. United States, 135 U.S.App.D.C. 95, 98-99, 416 F.2d 1110,...