Robinson v. United States, Nos. 08–CF–935

• Decision Date: 23 August 2012
• Docket Number: 08–CF–1010,08–CF–1012.,Nos. 08–CF–935
• Citation: 50 A.3d 508
• Parties: Michael U. ROBINSON, Steven Mark Edwards, Davone J. Kellibrew, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

50 A.3d 508

Michael U. ROBINSON, Steven Mark Edwards, Davone J. Kellibrew, Appellants,

v.UNITED STATES, Appellee.

Nos. 08–CF–935, 08–CF–1010, 08–CF–1012.

District of Columbia Court of Appeals.

Argued Jan. 10, 2012.

Decided Aug. 23, 2012.

Peter H. Meyers, Washington, DC, appointed by the court, for the appellant Michael U. Robinson.

Jenifer Wicks, Washington, DC, for the appellant Steven Edwards.

Donald L. Dworsky, appointed by the court, for the appellant Davone Kellibrew.

Peter S. Smith, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, Elizabeth Trosman and William Woodruff, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and REID, Senior Judge.

BECKWITH, Associate Judge:

Appellants Michael Robinson, Steven Edwards, and Davone Kellibrew appeal from numerous convictions arising from an incident in which the complainant, Donna Terry, was shot several times. A jury convicted all three appellants of assault with intent to kill while armed (AWIKWA), aggravated assault while armed (AAWA), assault with a dangerous weapon (ADW), and various gun-related charges. The jury also convicted Davone Kellibrew and Michael Robinson of kidnapping while armed and threatening to injure a person, found Mr. Kellibrew guilty of the separate charge of first-degree sexual abuse, and found Mr. Robinson guilty of the separate charge of simple assault. The jury acquitted Steven Edwards of kidnapping while armed, the associated count of possession of a firearm during the commission of a crime of violence (PFCV), carrying a pistol without a license (CPWL), unlawful possession of ammunition (UA), and possession of an unregistered firearm (UF). All three appellants were sentenced to lengthy prison terms.

Appellants raise myriad claims, but primarily contend that they were prejudiced by the trial court's exclusion of expert testimony regarding the effects of phencyclidine (PCP)—testimony appellants hoped would cast doubt upon the accuracy of the perceptions of the complaining witness. Appellants argue that the prejudicial exclusion of the expert testimony resulted either from the government's violation of its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for failing to disclose to the defense that Donna Terry had used PCP on the morning of the offense, or from the trial court's error in excluding two different expert witnesses the defense lawyers scrambled to secure during the course of the trial. We conclude that the government did not violate its Brady obligations because it did not suppress the evidence that Ms. Terry had smoked PCP that morning. And while we conclude that the trial court erred in excluding relevant expert testimony on the effects of PCP, we find this error to be harmless. We affirm as to these and appellants' remaining claims, but remand the case so that the trial court may vacate certain duplicative convictions.

I. Facts and Proceedings

The government's theory in this case was that in the early morning hours of September 14, 2006, Donna Terry, who had spent several hours hanging out and selling crack in the area of 20th and Rosedale Streets, N.E., was subjected to a prolonged ordeal in which she was forced into Michael Robinson's sport utility vehicle (SUV), driven to various locations around D.C., sexually assaulted by Davone Kellibrew, and eventually pushed out of the vehicle, shot several times by Mr. Kellibrew and Steven Edwards, and left for dead in an alley. The government contended that this series of events began when the three men, having returned from a Maryland nightclub to the 20th and Rosedale neighborhood to find Ms. Terry waiting for her friend Steven Edwards, decided to punish Ms. Terry for allegedly stealing money from Mr. Edwards. It was undisputed that Ms. Terry had known both Mr. Edwards and Mr. Robinson for several years.

Davone Kellibrew's theory at trial was that he was not the third man in the car—the man the others called “Karim”—and that Ms. Terry mistakenly identified him in a photo array months after the incident. Michael Robinson contended that he was smoking crack and drinking throughout the incident, that he was uninvolved in the attacks on Ms. Terry, and that he was unaware that Karim intended to shoot her. Steven Edwards testified at trial that Ms. Terry, despite being a good friend of many years, was lying when she said he fired some of the shots at her, and that his only wrongdoing was lacking the courage to stop Karim's rampage because he feared the volatile man with a gun.

The Government's Evidence

When the government called its main witness, Donna Terry, the prosecutor asked Ms. Terry at the outset whether she had used drugs prior to the offense in this case. She acknowledged that she had smoked PCP and marijuana on the morning of September 13, 2006—something the government had not disclosed to appellants prior to trial. Ms. Terry contended that the effects of these drugs typically lasted “about an hour” and would have worn off by that night.

Late that night, Ms. Terry took the bus to the corner of 20th and Rosedale, where she hoped she would find her friend, Steven Edwards, and that he would help her sell some crack. She hung out in the area by herself, selling a little crack, from about 12:30 a.m. to around 3 a.m., when she saw an SUV driven by Michael Robinson, a man she had known for a couple of years and was friendly with. Another man, whom she identified at trial as Davone Kellibrew, got out of the back seat of the SUV, greeted her by her nickname and reminded her that he had seen her before when he picked up a friend from her house. Finding Steven Edwards drunk and asleep in the front passenger seat of the SUV, Ms. Terry tried to wake him up and asked him to give her money for a cab ride home. On Mr. Edwards's instructions, she took some money out of his pocket and began counting out bills when Mr. Robinson approached her, accused her of trying to rob Mr. Edwards, then slammed her onto the ground, banged her head into the concrete, and punched her in the lip.

When Mr. Robinson told Mr. Kellibrew that Ms. Terry had “tried [to] rob little Steve,” Mr. Kellibrew told Mr. Robinson to put her in the SUV, and said “I know what we going to do, we going to slump her,” a term Ms. Terry took to mean “kill.” According to Ms. Terry, the two men threw her in the back seat of the SUV and Mr. Robinson locked the vehicle's doors with child locks that prevented anyone from getting out. Ms. Terry woke up Steven Edwards—her friend since she was a young teenager ¹—and told him what had happened. Mr. Edwards said he knew she would not rob him and crawled into the back seat with her.

Ms. Terry testified that Mr. Robinson drove, with Mr. Kellibrew directing, to what she thought was a crack house, and Mr. Kellibrew put a gun to her hip and pushed her while Mr. Robinson led the way in. Once inside, Mr. Robinson indicated that she was going to have sex for the fifty dollars he was throwing on the floor. Ms. Terry was crying throughout these events, told the men she was “not doing nothing,” and when she began crying more loudly, Mr. Kellibrew put the gun to her head and said they were “going to have to take her out of [t]here” because she was being too loud. The four got back in the SUV, with Mr. Kellibrew pushing Ms. Terry with the gun and forcing her into the back seat between him and Mr. Edwards.

Once in the SUV, Mr. Kellibrew forced Ms. Terry to perform oral sex while he pointed the gun at her head and directed Mr. Robinson where to drive. According to Ms. Terry, Mr. Kellibrew told Mr. Edwards that they were taking her to the woods by some train tracks to kill her. Eventually Mr. Kellibrew told Mr. Robinson to stop the SUV, told Mr. Edwards to get Ms. Terry out, and then shot her twice, in her stomach and her chest. Ms. Terry testified that Mr. Kellibrew then passed the gun to Mr. Edwards and told him that “he better finish [her] off.” She was still standing when Mr. Edwards took the gun and shot her twice more. Ms. Terry fell down, the men got back in the SUV, and Mr. Robinson began to drive away. Instead of leaving, however, the vehicle pulled back around right beside her and somebody shot her about four more times in her back. After the men were gone, Ms. Terry got up and tried to walk and call for help, but soon collapsed near a dumpster.

When police arrived at around 4:30 a.m. in response to a 911 call they found Ms. Terry lying on her back and bleeding.² The officer who found Ms. Terry said that she told him that “Steve and Mike” had shot her and described a gold SUV.³ At the hospital, where she was treated for seven or eight gunshot wounds, Ms. Terry told a detective that three people were involved in the incident—Steven Edwards; a man named Mike, who drove a gold SUV; and another man whose name she did not know but whom she had seen before when he picked up her friend. She identified that man and Mr. Edwards as the actual shooters.

When police located Steven Edwards and interviewed him about the events of the previous day, he acknowledged having been in the area of 20th and Rosedale after returning from a club called Tradewinds with two friends in a tan SUV. Mr. Edwards said he was drunk and passed out, but that he remembered seeing a man in the back seat of the SUV forcing Donna Terry to perform oral sex at gunpoint. He said the vehicle eventually pulled into an alley, where someone told the driver to stop, Ms. Terry either ran or was pushed out of the truck, and Mr. Edwards heard a gunshot.

More than six months later, police found and questioned Davone Kellibrew after Ms. Terry identified him from an array of nine photographs. During a three-hour interview, Mr. Kellibrew told police that he had been at a club called Tradewinds on the...