Johnson v. US, 95-CF-1464, 96-CF-459 and 99-CO-38.
| Decision Date | 10 April 2003 |
| Docket Number | No. 95-CF-1464, 96-CF-459 and 99-CO-38.,95-CF-1464, 96-CF-459 and 99-CO-38. |
| Citation | 820 A.2d 551 |
| Parties | Thomas JOHNSON, Jr., and Patrick L. Baucum, Appellants v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Frederick J. Sullivan, Bowie, MD, appointed by the court, for appellant Johnson.
William T. Morrison, Silver Spring, MD, appointed by the court, for appellant Baucum.
Patricia A. Heffernan, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Roy W. McLeese, III, Assistant United States Attorneys, were on the brief, for appellee.
Before TERRY, FARRELL, and WASHINGTON, Associate Judges.
After a jury trial, appellants Johnson and Baucum were convicted of second-degree murder while armed, assault with intent to kill while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. On appeal both appellants contend that the trial court erroneously allowed the government to introduce a witness' prior statement for the purpose of impeachment. In addition, appellant Baucum claims that the court erred in permitting the government to call that witness for the sole purpose of putting the impeaching evidence before the jury. Baucum further argues that the trial court erred when it failed to instruct the jury sua sponte that an accomplice's testimony should be viewed with "special suspicion." Finally, both appellants maintain that the evidence was insufficient to convict them of the various crimes.1 We affirm.
At about 3:00 p.m. on December 19, 1992, Willie Washington and Earl Nelson were sitting in Washington's car, which was stopped at a traffic light at the corner of Naylor Road and Alabama Avenue, S.E. Another car, carrying three people, swerved into their lane as if it were going to hit them and then stopped just ahead of them at the light. Washington pulled forward and then stopped abreast of the second car to see who was in it. Before either Washington or Nelson could identify the occupants of the other car, the person seated in the front passenger seat reached downward, pulled out a gun, opened the window slightly, and began firing at Washington and Nelson. The gunman continued firing until his gun made a clicking sound, and then the car pulled away. Both victims were gravely wounded in the shooting; Washington died of his wounds. Julius Seawright, an off-duty police officer, watched these events from inside his own car, which was two cars behind Washington at the traffic light. While waiting at the light, he saw a hand holding a shiny nine-millimeter gun with a black grip reach out the window of the second car and fire into Washington's car. Officer Seawright thought he saw two people in the second car, which drove away at a normal speed when the light changed to green. He followed that second car, but lost it after seven or eight blocks. He then broadcast a description of the car and its license number to a police dispatcher.
The police identified the car as a blue Chrysler registered to Louise Baucum, who lived on Minnesota Avenue, S.E. When the police contacted her, Mrs. Baucum told them that she owned the car and that she had lent it to her son, Patrick Baucum, about six months earlier. Mrs. Baucum also informed the police that she owned a house in the 2300 block of 13th Place, N.E. Four officers immediately set up a surveillance of that house, and one of them located Mrs. Baucum's car, which was parked nearby on the street. After about fifteen or twenty minutes, the officers saw Patrick Baucum leave the house, and ten minutes later they saw him return with two men who were later identified as Thomas Johnson, Jr., and Lamont Heard. Johnson walked past the officers and continued out of sight, while Baucum and Heard walked to Baucum's mother's car. Baucum handed Heard a set of keys, which Heard used to open the trunk. At that point, the officers came forward from their observation post and arrested both Baucum and Heard.
The police later executed a search warrant at the house on 13th Place. There they found mail addressed to Patrick Baucum and a semi-automatic "Mac-11" assault pistol containing five rounds of ammunition. The Mac-11 was not registered, and Baucum did not have a license to carry it. After his arrest, Baucum told the police that he had been at the Lorton correctional facility visiting a friend at the time of the shooting. At trial, a corrections officer testified that Baucum had indeed been visiting someone at Lorton that day, but that he left after visiting hours ended at 1:00 p.m.
A few weeks later, the police executed an arrest warrant for Tommie Johnson. The arresting officers found him in an apartment on Butler Street, S.E., hiding in a closet under a pile of laundry. Officer Richard Finelli ordered him to reveal his hands, and after hesitating for a moment, Johnson did so. At that moment the officer heard the sound of a metallic object hitting the floor. After removing Johnson from the closet, Officer Finelli found on the floor a stainless steel Smith & Wesson nine-millimeter semi-automatic pistol. The pistol was not registered, and Johnson did not have a license to carry it.
The police also processed the physical evidence from the shooting. From Mrs. Baucum's blue Chrysler, they recovered a latent fingerprint which matched a print of appellant Johnson. Investigators also recovered a spent nine-millimeter casing from the floor of the car behind the driver's seat which matched the Mac-11 pistol found at Baucum's home. In addition, two nine-millimeter casings found at the scene of the shooting matched the Smith & Wesson semi-automatic found on the closet floor next to Johnson when he was arrested. Two other casings recovered at the scene could not be matched with the Smith & Wesson, but also could not be excluded. Another shell casing found at the scene matched the Mac-11.
The victims' car had twelve bullet holes in it. Police recovered five bullets and fragments of two additional bullets from various places in the car. All of the bullets could have come from the Smith & Wesson, but a positive match could not be made for any of them. In addition, the door on the driver's side contained a fragment that could have come from the Mac-11, but it too could not be positively matched to that gun.
Willie Washington died from nine gunshot wounds. The medical examiner found two bullets in the folds of his clothing and three bullets in his body. Four of those bullets had markings consistent with the Smith & Wesson, but they could not be positively identified with that weapon. The remaining bullet was positively matched to the Smith & Wesson.
Earl Nelson spent almost four months in the hospital and lost his left lung as a result of the shooting. While he was in the hospital, the police showed him a group of photographs, and he selected one picture of someone who he believed was the gunman. The record before us does not disclose who that was, but apparently it was not either appellant. Later, at a lineup, Nelson identified a man whom be believed to be the shooter. That man, however, was a police officer who had been placed in the lineup as a "filler." Nelson did not identify anyone at trial.
When the police took Lamont Heard to headquarters on December 19, 1992, he agreed to give a statement. Detective Cleora Sharkey typed Heard's statement verbatim into the computer while Heard spoke. As she was typing, Heard watched her so closely that, she said, he made her uncomfortable. Detective Eric Gainey was also present with Heard and Detective Sharkey through the whole process of taking the statement. According to Detective Gainey, Heard appeared to read every word of the statement off the computer screen as Detective Sharkey typed it. Detective Sharkey then printed the statement, gave it to Heard to read, and allowed him to make corrections. Heard read the statement and signed the last page.
Detective Gainey testified that Heard initially denied any involvement with the shooting when the arresting officers brought him to police headquarters. Then Heard gave a second version of events to another police officer before the interview with Detectives Sharkey and Gainey. Finally, Heard told Sharkey and Gainey that there were three people in the car, and he identified Baucum and Johnson as the gunmen when the detectives showed him photographs of those two men.
Heard stated2 that on the day of the shooting he was driving Baucum's mother's car. When he stopped for a red light at the intersection of Alabama Avenue and Naylor Road, Darryl Arrington was the only passenger in the car with him. When a blue car pulled up alongside their car, Arrington uttered an oath, reached under the seat, pulled out a Mac-11, and began firing it. In addition, Arrington had a nine-millimeter pistol in his waistband. Heard hid under the dashboard, and from that position he thought he heard Arrington firing both guns.
Heard then drove Arrington to 13th Place, N.E. While driving there, he noticed a black car following him. He parked the car near Baucum's home, and Arrington left. Heard then went to a nearby carry-out to meet Baucum because Heard had Baucum's only set of keys, and Baucum could not get into his home or drive his car. The police stopped and arrested Heard and Baucum at around 4:30 p.m. as they were walking back to Mrs. Baucum's car.
After Heard gave this testimony, the prosecutor confronted him with his earlier statement to the police. Heard denied having read it, and said that he had signed the statement and returned it to Detective Sharkey without knowing what it said. Heard also claimed that Sharkey threatened to use her gun on him while he was making the statement if he failed to cooperate with the police. He said he told the police that Arrington was the shooter and that Baucum took the bus to...
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