Marshall v. US

• Decision Date: 26 June 1992
• Docket Number: No. 89-CF-800.,89-CF-800.
• Citation: 623 A.2d 551
• Parties: Andre W. MARSHALL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

623 A.2d 551

Andre W. MARSHALL, Appellant, v. UNITED STATES, Appellee.

No. 89-CF-800.

District of Columbia Court of Appeals.

Argued February 5, 1992.

Decided June 26, 1992.

Rehearing and Rehearing In Banc Denied May 4, 1993.

R. Kenneth Mundy, Washington, DC, for appellant.

Paul K. Carwile, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Washington, DC, were on brief for appellee.

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

KING, Associate Judge:

Appellant was indicted along with Kevin Marshall and Theodore Taylor ("Taylor"), for the offenses of armed first degree murder (premeditated and deliberated) (D.C.Code §§ 22-2401, -3202 (1989 Repl.)); armed felony-murder (id.); armed first degree burglary (D.C.Code §§ 22-1801(a), -3202) (1989 Repl.); possession of a prohibited weapon, baseball bat ("PPW") (D.C.Code § 22-3214(b) (1989 Repl.)); and carrying a pistol without a license (D.C.Code § 22-3204 (1989 Repl.)) arising out of an altercation which ended with the shooting death of Kenneth Taylor ("decedent") on March 26, 1988, inside apartment 301 at 1438 Cedar Street, S.E. Appellant was tried separately in May 1989, and a jury returned guilty verdicts on the armed felony murder, the armed first degree burglary, and the PPW counts. The jury failed to reach verdicts on the remaining counts. Appellant raises a number of issues in his challenge to those convictions. We find that none justifies reversal and, accordingly, we affirm.

I.

As presented by the government, the sequence of events leading to the killing began and ended at the apartment of one Janice Settles at 1438 Cedar Street, S.E., a premises regularly used to ingest crack cocaine. Early in the day in question, Theodore Taylor arrived at the apartment with his girlfriend Tawanna Matthews ("Matthews"). Also present were Kirk Shephard ("Shephard"), Percy Settles (Janice's brother), Dwight Jones ("Jones"), and the decedent. Janice Settles, who had been out of the apartment, returned shortly after the arrival of Theodore Taylor and Matthews. An altercation broke out between Taylor and Shephard over the attentions of Matthews, and Janice Settles directed Taylor and Matthews to leave the apartment. They did as Janice Settles asked.

After the two left, those remaining began smoking crack cocaine. Some time later, from her window, Janice Settles saw Theodore Taylor, Kevin Marshall, and appellant descending some steps near where a neighbor, Mary Deloatch ("Deloatch"), lived. Taylor was carrying a baseball bat and the other two were walking with him. The three entered her apartment building and proceeded to her apartment where they gained entrance.¹ Taylor approached Shephard and struck him with the bat. Janice Settles then told the three to leave. Taylor and appellant complied; however, Kevin Marshall was unable to follow the other two out of the apartment because the door jammed.

Janice Settles further testified that decedent then appeared from a bedroom, and he and Kevin Marshall went at it. At this point Kevin Marshall had the bat in his possession and he struck decedent with it. The two then struggled over the bat and Kevin Marshall called out to appellant to come to his assistance. At that point Janice Settles went into a bedroom and saw nothing further. She did hear two shots after entering the bedroom.

Matthews testified that she was inside another apartment in the same building when she saw the group of three arrive at the apartment building and go to Janice Settles' apartment. She followed them and saw Theodore Taylor and Kevin Marshall gain entrance. She also witnessed Taylor and Kevin Marshall engage in altercations, first with Shephard and then with decedent. Kevin Marshall called out for appellant and he too entered the apartment. She then heard a single shot, and was then told by appellant to go downstairs. She complied with that order and then heard a second shot. Later she observed Taylor, Kevin Marshall, and appellant walk down the stairs together.

Jones testified he was present in the apartment and heard, but did not see, the fight. He heard appellant ask decedent several times to hand over the bat. A shot followed this demand. He then heard appellant again ask decedent for the bat; he then heard a second shot.

Percy Settles testified that during the fight over the bat, he saw appellant with a small silver gun in his hand which he fired,² causing everyone to scatter. Appellant then fired a second shot which prompted an exodus out of the front door. Percy Settles then discovered that decedent had been shot. Death followed shortly thereafter.

Deloatch testified that she observed three males descend the stairs near her home going in the direction of 1438 Cedar Street. One of the group was swinging a bat and "they were cursing and swearing. They were going to mess up somebody." She did not see their faces but saw them enter the apartment building and go up the steps. Not long after she heard two shots.

On his own behalf, appellant testified that, before the shooting, he saw Theodore Taylor emerge from a building carrying a baseball bat acting very angry. He and Kevin Marshall followed Taylor in an effort to stop him and retrieve the bat. He testified that he did not know why Taylor was angry and that neither he nor the other two were armed with a pistol. He followed Taylor to the Cedar Street apartment where he tried to act as a peacemaker. He also testified that immediately prior to the gunshots he and Kevin Marshall went into the hallway leaving Taylor inside. He denied killing the decedent.

The jury was instructed with respect to the armed felony murder, armed first degree burglary, and the PPW counts, on both principal offender and aider and abettor theories. The instruction for the premeditated and deliberated murder charge, however, was as principal offender only. The court declined a defense request for the self defense instruction for the armed felony murder count as an aider and abettor.

II.

Most of the issues raised by appellant require only brief discussion. First, appellant claims the trial court erred by allowing Percy Settles to testify to what appellant characterizes as non-expert opinion. The witness first testified that he had seen appellant with a gun, that there was a lot of tussling, and that appellant then fired the gun. When asked where the first shot went, he replied, "Down to the floor, I think." Appellant claims this response constitutes opinion testimony which is inadmissible since the witness was not qualified as an expert. We do not agree. We note that an expended slug was in fact recovered from the floor and we are satisfied that the witness' response to the prosecutor's question was, at most, nothing more than an inference he had drawn from observations he actually did make. This inference was a natural and reasonable one to draw based upon the totality of the evidence, and we are satisfied that it did not constitute impermissible lay opinion evidence. Even if we were to accept appellant's characterization of the evidence, we conclude that under the circumstances the statement was unimportant and therefore not harmful to his cause. It was the fact that the gun was fired that is important to the government's case, not the direction of firing.

Second, appellant challenges the trial court's ruling that permitted Janice Settles to testify that she had seen a Derringer in appellant's possession about two months prior to the killing. At trial appellant objected to admission of this evidence on the grounds that it was inadmissible "other crimes" evidence under Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). In this court he has abandoned the "other crimes" argument, but does challenge its admissibility on the grounds of relevance. We are satisfied that neither ground provides a sufficient basis for finding trial court error. We have held on several occasions that evidence of possession of a weapon on an earlier occasion by one later charged with using a similar weapon is probative, relevant evidence. Jones v. United States, 477 A.2d 231, 239 (D.C.1984) (possession of pistol one month before shooting held admissible); Coleman v. United States, 379 A.2d 710, 712 (D.C.1977) (photo of defendant with pistol five months earlier held admissable). The prior possession by an accused of the physical means of committing the charged offense is evidence of the probability of his guilt and is therefore admissible. Id. at 712. Moreover, the trial judge here instructed the jury that the testimony regarding the prior possession of the Derringer could be considered only as evidence that appellant had the means to commit the charged offense. Under these circumstances we find no error in the trial judge's admitting the testimony in question.

Third, appellant claims that the trial judge erred when he permitted the prosecutor to impeach Matthews with her grand jury testimony after a claim of surprise.³ Specifically, he argues that the government failed to establish, as required by our cases, that the testimony affirmatively damaged the government. Jefferson v. United States, 558 A.2d 298, 301 (D.C. 1989); Scott v. United States, 412 A.2d 364, 367-68 (D.C.1980); see D.C.Code § 14-102 (1989 Repl.). We find no basis for that claim.

In her earlier report to police, and before the grand jury where she adopted those statements as her testimony, the witness stated that: she saw appellant step into the struggle between the decedent and Kevin Marshall over the bat; when the decedent declined to release the bat after being told to do so, appellant pulled a pistol from his pocket and pointed it at decedent's head; he then fired the pistol into the floor; and, he then directed her to leave the apartment. Finally, she had also identified appellant from a photo array as the person who had pulled and fired the gun. At trial she testified that she never saw...