POWELL v. U.S.

• Citation: 684 A.2d 373
• Decision Date: 31 October 1996
• Docket Number: No. 93-CF-1075,93-CF-1075
• Parties: Andre D. POWELL, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

684 A.2d 373

Andre D. POWELL, Appellant, v. UNITED STATES, Appellee.

No. 93-CF-1075.

District of Columbia Court of Appeals.

Argued March 7, 1995.

Decided October 31, 1996.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, PETER H. WOLF, J.

Lesley Zork, Public Defender Service, with whom James Klein and Sandra Levick, Public Defender Service, were on the brief, for appellant.

Alan M. Boyd, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Robert C. Little, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and STEADMAN, and KING, Associate Judges.

WAGNER, Chief Judge:

Appellant, Andre Powell, was indicted for second-degree murder while armed (D.C. Code §§ 22-2403, -3202 (1996)) and convicted following a jury trial of the lesser-included offense of involuntary manslaughter while armed (D.C. Code §§ 22-2405, -3202 (1996)).¹ He argues for reversal on the ground that the trial court erred by providing the jury with a "reasonable efforts" instruction, over defense objection, after the jury indicated that it was deadlocked on the second-degree murder count. Appellant also contends that the trial court committed reversible error in allowing the government to introduce testimony by the victim's mother that three days before the shooting, she saw her daughter in a van with a man who resembled appellant, had the same first name, and possessed a gun, because there was no reliable evidence connecting the pistol to appellant or to the charges. We affirm.

I. Factual Background

A. The Shooting

It is undisputed that the decedent, Valencia Anderson, died from a gunshot wound to her forehead from a gun which appellant fired. The principal contested issue at trial was whether the shooting was accidental. The evidence showed that on May 13, 1992, just before 11:00 p.m., appellant was at the home of a family friend, Ronald Heron, at 1414 18th Place, S.E., Washington, D.C. While in the living room talking with several friends, including Jeannie Brown and Sylvania Graces, appellant was "playing" with what he later described as a black .38-caliber, Smith and Wesson revolver with a brown handle. He was pulling the trigger back and releasing it. At the time,Anderson, another friend, was in a second-floor bedroom where she was stomping and dancing to loud music as she watched television. Appellant went upstairs to tell Anderson to turn the music down because it was interrupting the conversation in the living room. A short time later, appellant shot Ms. Anderson once in the forehead.

Appellant, who appeared to be upset and in a state of shock right after the shooting, told his friends that he had shot Ms. Anderson accidentally. Appellant left the house, walked to the next-door neighbor's porch, and started mumbling to himself that the gun went off accidentally and that maybe he "ought to get out of town or something."

After speaking to some of the witnesses that night, Detective Vivian Washington located appellant about two and one-half blocks from the murder scene and arrested him for the shooting. At the station, appellant waived his Miranda² rights and made a statement to Detective Washington. In that statement, appellant claimed that he was playing with a gun that he had found "under Pee Wee's [Ronald Heron's] porch," when he heard Ms. Anderson yelling and went to see what the problem was. Appellant said that he continued to play with the trigger of the weapon when he went upstairs, and while on the top step, he slammed the gun against the rail with his right hand, and the gun "went off." Appellant explained that he "must have still had the trigger back." Appellant said that he ran into the bedroom and discovered that he had shot Ms. Anderson. He touched her, and she fell on the bed. He then returned to the hallway, dropped the gun, and ran out of the house.

Dr. Frank Peretti, an expert in the field of forensic pathology, who performed the autopsy on Ms. Anderson, testified that the cause of her death was a "hard or tight" contact gunshot wound to the head. Dr. Peretti explained that a hard contact wound is one that results from a bullet shot from a gun held firmly against the skin. Dr. Peretti based his opinion on a barrel abrasion surrounding the wound and the presence of gun powder stippling (burned and unburned grains of powder) and a large amount of soot inside the wound path. He testified that the soot and gas expelled from the barrel of a gun held two feet or greater from someone would dissipate before reaching the skin. He stated that, as a general rule, stippling would be present only in a wound caused by a weapon fired at a distance of eighteen inches or less.

Dr. John Smialek, the Chief Medical Examiner for the State of Maryland, also an expert in the field of forensic pathology, reviewed Ms. Anderson's autopsy and examined specimens of her tissue, including the skin from the entrance wound in her head. Dr. Smialek concluded that Ms. Anderson died of a contact gunshot wound to the front of her forehead.

Both doctors opined that the trajectory of the bullet that struck Ms. Anderson was from front to back, and downwards with no deviation. Dr. Smialek testified that, assuming Ms. Anderson was seated on a bed sixteen to eighteen inches off the floor, the trajectory of the bullet would be consistent with a person standing above Ms. Anderson firing downward. Dr. Peretti noted that a person shot in the manner that Ms. Anderson was shot would not be able to get up and move after being shot.

Jeannie Brown testified that after appellant went upstairs to tell Ms. Anderson to turn her music down, she heard a gunshot. Brown said that she ran upstairs after the others left the house and remained with Ms. Anderson until the ambulance arrived. Ms. Brown testified that Ms. Anderson was slumped over the bed in a sitting position with her head down on her chest. Ms. Brown also testified that, earlier that evening at about 7:00 p.m., appellant approached her in the living room with a gun, pointed it at her forehead, and pulled the trigger. She heard a click, pushed the gun away, and told appellant to stop playing. According to Brown, appellant told her that the gun was not loaded, but she saw him place one bullet in the cylinder before putting the gun back in his pocket. Brown testified that appellant was upset later because she told his lawyer about placing the gun to her head earlier onthe night of the shooting. She further testified that appellant told her to say at trial that it was a "play gun." Ms. Brown also testified that appellant suggested that she leave town rather than testify. Brown admitted that about ten minutes before the shooting, she had smoked crack cocaine with Anderson.

Michael Mack, a friend of appellant, testified that some eleven hours prior to the shooting, he was with appellant at the home of Dwight Terrell, who lived next door, when appellant picked up the gun from the floor to prevent a one-year-old child from getting it. Mack said he was at Ronald Heron's with appellant and the others in the living room. Mack testified that he went upstairs to investigate the noise and that appellant passed him going up the stairs as he came back down. Mack testified that, from his position at the bottom of the stairs, he could see appellant leaning over the bannister at the top of the stairs when he heard a gunshot.

Avon Shell, appellant's "best friend," also testified that he saw appellant pick up a pistol from the floor of Dwight Terrell's house. He said that appellant kept the gun because they could not awaken Mr. Terrell, and they did not know what else to do with it. Mr. Shell was also at Heron's house at the time of the shooting. He testified that he heard a "quick bumping noise" just before the shot rang out.

Delicia Terrell, who lived next door to Heron, testified that she saw appellant shortly after the shooting and that he was upset and crying and asked that someone call the police. Effie Tolbert, who claimed to be neither a friend of appellant nor Ms. Anderson, testified that she was sitting in the living room when Ms. Anderson was shot. It was Ms. Tolbert's testimony that appellant was leaning on the bannister outside the bedroom talking and laughing with Ms. Anderson just moments before she heard a gunshot. Tolbert testified that appellant never entered the room. However, she was impeached with her grand jury testimony during which she stated that she heard Ms. Anderson tell appellant that he should stop playing with guns, heard the gunshot and saw appellant run out of the bedroom and drop the gun on the stairs.

Contrary to his statement to Detective Washington, appellant testified that he found the gun by the sofa in the living room of Mr. Terrell's home and took it to prevent Mr. Terrell's baby granddaughter from getting it. Appellant testified that he went next door to Heron's house, where he removed the bullets before playing with the weapon. He testified that he left the gun under a sofa in the living room at Heron's house and left at about 1:00 p.m. Later that night, he returned, and while in the living room talking with friends, he heard Ms. Anderson upstairs. Appellant explained that he took the weapon with him when he went upstairs only because he was planning to return it to Mr. Terrell's house immediately thereafter. Appellant explained that he leaned over the bannister before reaching the top of the stairs in such a way that the top of the bannister was under his armpits, and the gun accidentally hit the bannister and discharged as he turned to go back downstairs. Appellant said that his finger was not on the trigger when the gun hit the bannister. He testified that he ran into the bedroom, touched Ms. Anderson on the shoulder and watched her fall back on the bed. He became hysterical, started to cry, ran out of the room and dropped the gun. Appe...