Roy v. US, No. 02-CF-290, 02-CF-306.

Decision Date07 April 2005
Docket NumberNo. 02-CF-290, 02-CF-306.
Citation871 A.2d 498
PartiesNakia ROY and Edward Settles, Appellants, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Kathleen R. Hartnett, Washington, with whom David W. DeBruin was on the brief, for appellant Roy.

Kenneth H. Rosenau, Washington, appointed by the court, for appellant Settles.

John R. Fisher, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, Alan M. Boyd, Lynn C. Holliday and Patricia A. Heffernan, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN and WASHINGTON, Associate Judges, and NEBEKER, Senior Judge.

NEBEKER, Senior Judge:

At the conclusion of a jury trial, appellants were convicted on several counts, stemming from the events of June 12, 2000, in which appellants Roy and Settles opened fire on one another on a public street, resulting in the death of an innocent bystander, Grace Edwards. Appellant Settles was convicted of second-degree murder (D.C.Code §§ 22-2403, -3202 (1981)), two counts of assault with a dangerous weapon (ADW) (D.C.Code § 22-502 (1981)), one count of possession of a firearm during the commission of a crime of violence (PFDCV) (D.C.Code § 22-3204(b) (1981)), and carrying a pistol without a license (CPWL) (D.C.Code § 22-3204(a) (1981)). Appellant Roy was also convicted of second-degree murder (D.C.Code §§ 22-2403, -3203 (1981)), four counts of ADW, five counts of PFDCV (D.C.Code § 22-3204(b)(1981)), one count of CPWL (D.C.Code § 22-3204(a) (1981)), and one count of simple assault (D.C.Code § 22-504 (1981)). Both appellants timely noted appeals of these convictions, asserting error as to severance of the defendants, the jury instructions on causation, exclusion of evidence and merger of multiple PFDCV and ADW convictions. We affirm all of the convictions with the exception of appellant Roy's multiple PFDCV convictions.

I.

We set forth here a general overview of the facts of this case. Those more detailed facts which may be relevant to a specific issue will be presented more fully in the subsections addressing those issues.

The appellants had a common acquaintance in Nacheta Harris. Harris had been Roy's girlfriend and is the mother of his child. Upon her break up with Roy, Harris began dating Settles. On the fateful morning, Harris and Settles arrived at her cousin's house on Valley Avenue. Settles had his motorcycle. Roy was waiting in the alley behind Valley Avenue for Harris and Settles and began running toward them. Settles, seeing Roy, dropped his motorcycle and began running away. Roy stopped where Harris was standing, punched her in the face, then ran after Settles, firing three or four shots from his gun. Settles did not return gunfire, but rather was able to escape. Roy gave up the chase at that point, returned to Harris, who he again punched in the face, and then went to a field leading to Tenth Place.

Settles, after running from Roy, arrived on Valley Avenue and met Ralph Faulkner who was sitting on his porch. Settles told Faulkner what had happened and asked him if he would retrieve his motorcycle and cell phone from the alley. Faulkner went to the cycle and saw a man, matching Roy's description, standing in the field across the street from the alley, watching him. He dropped the motorcycle and returned to his apartment. From his apartment building he could still see Roy. He was then standing near the footbridge to Tenth Place.

Settles proceeded to the apartment of a friend, Andre Brown, who was keeping Settles' gun under a mattress in the apartment. Brown retrieved the gun and gave it to Settles who left the apartment, calling for Brown to come with him. Outside, another friend, Bernard James, was encountered. Settles asked Brown to drive him to Tenth Place, which he did, accompanied also by James. Settles was in the front passenger seat with the window down and his gun in his lap when the car entered Tenth Place.

As the car entered Tenth Place, another witness, Charles Reeves, was sitting on the porch of his apartment building1 and Grace Edwards was taking her morning walk. Some evidence reflected that Roy then came up out of a nearby stairwell, pointing a gun at the car. Settles fired three shots at Roy, who returned fire with several shots of his own. Witness Reeves had already run inside his building as the car continued up Tenth Place. Grace Edwards screamed and fell to the ground having been fatally hit by a stray bullet.

Having missed Roy, Settles told Brown to circle around, but while doing so, Brown noticed two police officers, in an unmarked car, driving behind him. Accordingly, instead of driving back to Tenth Place, Brown parked the car on Valley Avenue and the three men entered Brown's apartment building. Approximately five minutes elapsed from the time the men left for Tenth Place and the time they returned to the apartment.

Meanwhile, the officer had noticed Brown and the other men in the vehicle as well, and was about to check the car's tags in the computer, when he received a call for the shooting on Tenth Place. Upon his arrival on Tenth Place, he heard someone say that shots had been fired from a four-door Dodge Intrepid with three occupants. He broadcast a lookout for the vehicle he had previously seen. The car was later located parked on Valley Avenue. Ballistics evidence recovered from the scene showed that two guns were fired on Tenth Place, a 9 mm semiautomatic and a .380 caliber firearm.

II.

Both appellants challenge their convictions on a number of grounds. Some of the arguments are identical for both appellants, some are merely related and finally some are unique to one appellant or the other. We begin our analysis with the issue of severance.

A. Severance of Defendants

We review the trial court's denial of appellants' motions to sever for abuse of discretion and will reverse only upon appellants' showing that they suffered manifest prejudice by being tried jointly. Dancy v. United States, 745 A.2d 259, 266 (D.C.2000). Such prejudice may not be established per se because two defendants blame one another for the offense charged. Id. at 266; Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Rather, appellants "must demonstrate that there is `a danger or risk that the jury will draw an improper conclusion from the existence of the conflicting defenses alone that both defendants are guilty."' Dancy, 745 A.2d at 266 (quoting Garris v. United States, 559 A.2d 323, 329 (D.C.1989)).

Appellant Settles argues that the trial judge abused his discretion when he denied several written and oral motions to sever, filed or made both before and during trial. In support of his argument, he cites to several parts of the trial transcript, in which he argues he was prejudiced by the joinder of his case with appellant Roy: (1) the impairment of his ability to put on a case of self-defense by the court's admission, of evidence in direct contradiction of self-defense; (2) the exclusion of identification evidence, through witness Marjorie Bowles; and (3) a discussion in "open court" regarding the ability of appellant Roy to cross-examine witness Andre Brown about drug dealing that also included Settles.2

Roy contends that he was prejudiced when: (1) Settles's attorney was permitted to act as a second prosecutor, in light of the defendant's irreconcilable defenses, and (2) several out-of-court statements of Settles were admitted without the opportunity for cross-examination in violation of the confrontation clause.

Both appellants contend that absent this aforementioned evidence, admitted or precluded as a result of the joint trial, the government's cases against them were weak and therefore the failure of the court to sever the two cases created a trial in which there was a "danger or risk that the jury w[ould] draw an improper conclusion from the existence of the conflicting defenses alone that both defendants [were] guilty." Dancy, 745 A.2d at 266 (quoting Garris, 559 A.2d at 329). We must disagree.

The mere fact that two co-defendants' defenses are separate, distinct and antagonistic and that each may have a better chance at acquittal if tried separately is not sufficient for a grant of severance. Simcic v. United States, 86 A.2d 98, 102 (D.C.), aff'd, 91 U.S.App. D.C. 102, 198 F.2d 951 (1952). Policy concerns have long favored joint trials. Thus, the more rigorous requirement of manifest prejudice must be established. Dancy, 745 A.2d at 266. Neither Settles nor Roy is able to meet this burden.

Settles contends that he was "restrained significantly" in his ability to put on a case of self defense because Roy "put on affirmative evidence to attack that theory on direct examination." He does not state specifically what evidence it was that restrained his ability to put on his defense, and in fact, he did put on a defense. Thus he is unable to show the requisite degree of prejudice on that ground. Next, Settles challenges the refusal to admit testimony that Marjorie Bowles had seen Roy with guns on two prior occasions. This evidence was considered by the trial court and found to be more prejudicial to Roy than probative to Settles. Ms. Bowles had already provided unchallenged testimony that she saw Roy, shortly after hearing gunshots on the morning of the offense in question. She further testified that she had seen Roy almost every day for a couple of years, thus leaving little room for question regarding her identification. Accordingly, the trial court's refusal to admit Settles' additional proffered identification evidence, as unduly prejudicial toward Roy, did not result in manifest prejudice to Settles.

Finally, Settles' contention that he was prejudiced by a discussion in "open court" about whether Roy could cross-examine Andre Brown about his drug dealing activities, which happened to include Settles, was...

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