Paige v. United States

• Decision Date: 28 July 2011
• Docket Number: Nos. 04–CF–715,09–CO–1347.,s. 04–CF–715
• Citation: 25 A.3d 74
• Parties: Marcus PAIGE, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

25 A.3d 74

Marcus PAIGE, Appellant,

v.UNITED STATES, Appellee.

Nos. 04–CF–715

09–CO–1347.

District of Columbia Court of Appeals.

Argued Feb. 1, 2011.Decided July 28, 2011.

Deborah A. Persico, appointed by the court, for appellant.Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Mary B. McCord, John P. Mannarino, and Margaret J. Chriss, Assistant United States Attorneys, were on the briefs, for appellee.James Klein, with whom Alice Wang and Chris Kemmitt, filed a supplemental brief for the Public Defender Service, amicus curiae, in support of appellant solely on the issue of whether appellant's conviction for carrying a pistol without a license must be reversed as a violation of the Second Amendment.Before OBERLY, Associate Judge, REID, Associate Judge, Retired, ^* and BELSON, Senior Judge.BELSON, Senior Judge:

Appellant, Marcus Paige, and his co-defendant, James Hill, were charged jointly with the first-degree murder while armed (premeditated) ¹ of Otis Graham and possession of a firearm during a crime of violence (“PFCV”), ² and were charged individually with carrying a pistol without a license (“CPWL”).³ Mr. Hill entered a guilty plea on September 10, 2002, and in March 2003 the charges against appellant proceeded to a trial by jury, which resulted in a mistrial when the jury deadlocked. Upon a second trial that began in December 2003, the jury found appellant guilty of the lesser-included offense of second-degree murder while armed, PFCV and CPWL.

Judge Ann O'Regan Keary denied appellant's post-trial motion for judgment of acquittal and motion for a new trial.⁴ After appellant was sentenced, he filed a timely notice of appeal. Three months later, he filed a motion for a new trial pursuant to Super. Ct.Crim. R. 33, based on ineffective assistance of counsel and newly discovered evidence, the denial of which after a hearing appellant appeals as well. These appeals have been consolidated for our consideration.

Appellant raises several issues on appeal, including whether the trial court committed reversible error in its handling of references by the prosecution to the non-testifying co-defendant's guilty plea, whether it improperly instructed the jury on aiding and abetting, whether there was sufficient evidence to sustain the convictions, and whether the trial court abused its discretion in denying appellant's motion for a new trial under D.C.Code § 23–110 (2001) (ineffective assistance of counsel) and D.C.Code § 22–4135 (2001) (Innocence Protection Act or “IPA”) without having conducted a more extensive evidentiary hearing. We affirm.

I. Facts

The Eyewitness

On September 30, 2000, Otis Graham was fatally shot while driving a truck in the 1300 block of Trinidad Avenue, Northeast. It was not until August 2001, however, that there was a break in the case. On that day, Metropolitan Police Department (MPD) Detective Michael Irving visited Neilly Griffin's home located at 1310 Trinidad Avenue, N.E., while he was investigating an unrelated homicide. At that time, Griffin asked Detective Irving what had happened regarding the killing of the man in the white truck a year earlier. Griffin pointed toward appellant, who was standing across the street, and volunteered to Detective Irving that appellant and James Hill had killed the man in the white truck. When she saw Hill later that day, she pointed him out to Detective Irving as well.

Griffin gave a different account, however, in July of 2002, when a defense investigator, James Hickey, and one of appellant's counsel came to Griffin's home in order to interview her. Griffin told them that she had not seen the shooting, and she signed a statement to that effect. Consistent with that signed statement, Griffin testified at appellant's first trial that she could not identify the shooters. The first trial resulted in a mistrial when the jury deadlocked.

At appellant's second trial, however, Griffin testified that she was in her bedroom at approximately 6:10 a.m. on the morning of September 30, 2000, when she heard gunshots coming from what sounded like two different guns. When she looked out her window, she saw a white pickup truck coming up the street and swerving. She also saw “two guys” who came running into the middle of Trinidad Avenue behind the white pickup truck, shooting at it with their right hands and arms out straight pointing at the truck. From her window, Griffin could see the entire 1300 block of Trinidad Avenue and the intersection of Trinidad and Neal Street. Griffin also testified that she saw “sparks” and “light flashing” from the hands of the two men, although she did not see guns in their hands. The truck crashed across the street from Griffin's window and the two men ran toward it and passed by the front of Griffin's house. As the two men ran by her house she recognized one as “Dee” and the other as “Fats.” She later learned that their real names were James Hill and Marcus Paige, respectively. Griffin then came outside and saw a body slumped over in the driver's seat of the truck. She saw the shooters standing in a nearby alley. When paramedics and police arrived, Griffin explained, she did not speak to them because she did not want to get involved.

Griffin further testified that the statement she gave the defense investigators in July 2002 contained many false statements and that she had signed it so that her name would stay out of the case and she would not have to worry about anyone “finding out or harassing [her] or harassing [her] children.” She also admitted that she did not initially comply with the subpoena to testify at the first trial and then testified falsely at that trial because she felt intimidated and “spooked” by a man sitting in the courtroom who was “shaking and nodding his head and clearing his throat.” Thereafter, at the second trial, she testified about the occurrence, named appellant and “Dee” (referring to Hill) as the shooters, and positively identified appellant in the courtroom.

The Government's Other Evidence

MPD officers Ernest Groves and Carlton Herndon each testified that they were familiar with appellant from their work in the neighborhood and that they saw appellant at the crime scene between 6:14 and 6:17 a.m. on the morning of the shooting. MPD Mobile Crime Laboratory Officer David Murray testified that he did not find any shell casings near the truck or any bullets in the truck, but did recover five shell casings near the intersection of Trinidad and Neal, at distances varying from nineteen to thirty-six feet from the intersection. MPD Firearms Examiner Jonathan Pope testified that he matched the five casings to a 9 mm Luger semi-automatic pistol that had been recovered at Hill's home during the execution of a search warrant on October 3, 2000. Pope testified that the location of the casings was consistent with the theory that the shooter was moving while firing the gun. Pope also explained that when a revolver is fired, the casings remain inside the gun so that if a revolver was used in the shooting, as well as a semi-automatic pistol, one would not expect to find casings from it near the scene. He testified further that use of a revolver is consistent with Griffin's testimony that she saw sparks and a flash coming from the shooter's hand, because revolvers emit a spark when fired.

Defense Evidence

MPD Detective Jeffrey Owens testified that when he interviewed Griffin in September 2001, subsequent to Detective Irving's interview, Griffin told Owens that she saw two men with hoods shooting at the truck. After the truck crashed, Griffin told Owens that she saw James Hill fire into the driver's-side window and that she saw appellant's face for the first time only when she went outside after the shooting. At that time, appellant was in the alley with his hood down.

Nicole Benbow, Griffin's neighbor and a friend of appellant, testified on behalf of the defense that she saw the shooting when she was coming out of her house at 6:05 a.m. that morning to go to the gas station. She identified James Hill as the only shooter and testified that she did not see appellant at the time of the shooting. However, she did testify that she heard what sounded like two guns. Benbow further testified that before she took the stand at the first trial in April of 2003, Detective Irving approached her and asked her to “do him a favor” by changing her testimony to include that she saw appellant at the time of the shooting. However, she testified, she refused to do so.

Another defense witness, Stephanie Parker, testified that she was with Hill (who later pled guilty to murdering Graham) and several others at around 5:00 a.m. on the morning of the shooting at the corner of Neal and Orren Streets near the scene of the shooting and that she saw appellant drive by in his mother's car, a grey, four-door Toyota Camry, with his mother and another man also in the car. About ten minutes later, she saw appellant drive by again, this time alone in the car. She later heard the shooting and afterward saw Hill running through the alley behind the 1300 block of Trinidad. About fifteen or twenty minutes after hearing the shooting and seeing Hill run through the alley, she saw appellant drive down Neal Street in the same car and park nearby at Neal and Orren Streets. She watched as police arrived at the scene to investigate the shooting and asked appellant to move his car.

Appellant's mother, Juana Paige, also testified that on the morning of the shooting appellant drove her to a cousin's home in Fort Washington, Maryland, and that they left the house, located at 1409 Orren Street, at 5:30 a.m. They briefly stopped at the nearby home of Sharon Vest, located on the 1300 block of Orren Street, on the way to Fort Washington. There, Juana Paige saw James Hill and several others sitting in front of Vest's home. Juana Paige said it took approximately half an hour...