Russell v. US

• Decision Date: 23 October 1997
• Docket Number: No. 94-CF-1048,96-CO-432.,94-CF-1048
• Citation: Russell v. US, 701 A.2d 1093 (D.C. 1997)
• Parties: Deon R. RUSSELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

701 A.2d 1093

Deon R. RUSSELL, Appellant, v. UNITED STATES, Appellee.

Nos. 94-CF-1048, 96-CO-432.

District of Columbia Court of Appeals.

Argued December 12, 1996.

Decided October 23, 1997.

Roberto Iraola, appointed by this court, with whom Benjamin B. Klubes and Barry Coburn, also appointed by this court, Washington, DC, were on the brief, for appellant.

Tina E. Sciocchetti, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, TERRY, Associate Judge, and BELSON, Senior Judge.

TERRY, Associate Judge:

Appellant Russell was charged with three counts of assault with intent to kill while armed,¹ three counts of arson,² two counts of malicious destruction of property,³ and two counts of possession of a Molotov cocktail.⁴ The charges were based on three incidents that occurred on October 13, October 14, and November 7, 1991. Although Russell was indicted alone for the October offenses, he was charged with a co-defendant, Kenneth Hahn, for the November offenses. Hahn eventually pleaded guilty to one count of malicious burning.⁵ Russell went to trial and was convicted on two counts of assault with intent to kill while armed, two counts of arson, two counts of destruction of property, and two counts of possession of a Molotov cocktail, all arising out of the two October incidents. The jury acquitted him of all charges arising out of the November incident. Russell noted a timely appeal from his convictions.

About a year later, Russell's newly appointed appellate counsel filed on his behalf a motion to vacate his convictions under D.C.Code § 23-110 (1996), on the ground that his trial counsel had rendered ineffective assistance. Following oral argument, the trial court denied the motion with respect to the October 14 arson, but vacated all of Russell's convictions based on the October 13 arson. After Russell appealed from that order, this court consolidated the new appeal with Russell's original appeal.

Before this court Russell makes several arguments for reversal, but we need consider only two. We hold that the evidence was sufficient to support his convictions related to the October 14 incident. However, we must reverse those convictions because the prosecutor, in his summation, argued facts not in evidence, and because the trial court gave an aiding and abetting instruction which was also without support in the evidence.⁶

I

A. The Government's Evidence

Deon Russell and Angela Card were the parents of a son named Christopher, born in March 1991. The three lived together from March through April 1991, and again from May through September 1991, in the apartment of a woman named Glynis Hendrix.⁷ Ms. Card testified that Mr. Russell was an extremely possessive father who took his son out "all day and half the night" and prevented her from taking the child anywhere. When Card tried to touch the baby or to "do anything tiny," Russell would argue with her about it. Russell's mother later testified that her son "always had that baby with him." On one occasion, when Christopher was only a few months old, Russell came to court and "went through procedures" to obtain custody of Christopher, but his efforts to do so were apparently unsuccessful.

In late September 1991, Ms. Card and her children moved from Ms. Hendrix's apartment to the home of Ms. Card's mother on Randolph Street, Northwest. She did not tell Russell that she was moving out and taking their son with her, nor did she reveal where she was going. Card testified that she made no effort to contact Russell after she moved out. He found out where she was, however, and paid her a visit at her mother's home. He asked her to give him the baby or to come back with the baby and live with him, but she refused.

On Sunday, October 13, Angela Card took her children to church. On the way there, she saw a car in which she had previously seen Mr. Russell "riding around" in the neighborhood. Ms. Card became uneasy at the sight of the car because Russell had threatened on several occasions to take Christopher from her and kill her. After leaving church, Card went to the home of a friend. While she was there, Russell and another man came to the door and knocked. Although it is not clear that Russell knew Ms. Card was there, Card surreptitiously looked out the window and recognized Russell, noting that he had a short haircut with a blond "tail" in the back.⁸ Later that day Ms. Card returned to her mother's home.

At approximately 8:20 p.m. on October 13, Ms. Card and her mother, sister, and two children were watching television in the dining room when they heard the sound of breaking glass and saw a fire in the living room. The women used water and blankets to put out the fire, then called the police and fire departments. Fire Investigator Willie Drummond determined that a Molotov cocktail—a Coca-Cola bottle filled with gasoline and a wick—had been thrown through the window, setting the drapes on fire. Fearful of a repeat attack, Ms. Card sent her children to spend the night with a relative. She and her mother then placed several buckets of dirt in the dining room and moved some furniture in order to clear an unobstructed exit from the house. They also lay down on the floor so that they could not be seen from outside.

A few hours later, shortly after midnight on October 14, Ms. Card and her mother were lying on the dining room floor when a second Molotov cocktail came flying through the broken window, starting a second fire. The women quickly extinguished the fire with the dirt they had collected and again called the police and fire departments. Investigator Drummond returned to their home and found a beer bottle filled with flammable liquid and a wick. Neither of the bottles thrown into the home contained Russell's fingerprints, nor did a third bottle that was found in the back yard the next day.

A neighbor, Grayson Dixon, testified that he heard the sound of breaking glass while watching television in the early morning hours of October 14.⁹ Dixon looked out from his second floor window and, from a distance of twenty to thirty feet, saw someone running in his direction, away from the Cards' house. This person ran past Dixon's house and disappeared around the corner. A street light directly in front of the Cards' house illuminated the area. Dixon went outside and described the person to police as a man "about five ten, five eleven, about a hundred and forty to a hundred and fifty pounds . . . with a dark color baseball cap on, with . . . a little plait . . . in the back of his head, or the center."¹⁰ Mr. Dixon was not asked to make an in-court identification, and he did not do so. On cross-examination, he acknowledged that he did not see the person's face, and that he could not be certain whether it was a man or a woman (though he had said earlier that it was a man).

Ms. Card testified that she suspected Russell because of certain statements she had heard him make during a telephone conversation a few months earlier. While she was talking to him on the phone, she heard him tell another man, who was apparently standing nearby, to get a bottle of gasoline. A few minutes later, she heard the other man say that he needed a can for the gasoline, and Russell told him to look in a trash bag. When the other man found a can, Russell exclaimed, "Bingo!"

Glynis Hendrix, who lived with Ms. Card and Mr. Russell during the summer of 1991 and was also the mother of one of Russell's children, testified about a conversation in which Russell discussed gasoline and a bottle. Hendrix said that shortly after Card moved out of her apartment, she overheard a conversation among Russell, Kenneth Hahn, and a man named Poochie in which the three discussed setting fire to an unspecified house by using a bottle of gasoline. Hendrix further testified that Hahn had taken a television set, a stereo, and some tapes that belonged to Mr. Russell. When Russell demanded that his property be returned, Hahn replied that he no longer had it, but that he would "do anything ... to repay Russell for the stuff he took."¹¹

A few weeks later, on November 7, the fire department came to the Card residence to put out a fire under the back porch that was later found to have been deliberately set with gasoline. Two gasoline cans were discovered in the rear of the house. One belonged to the Cards; the other did not, but its ownership could not be established. There was no evidence before the jury that connected either appellant Russell or Kenneth Hahn to the November 7 incident.¹²

B. The Defense Evidence

Joyce Goodall, who had been a friend of appellant Russell for several years, testified that on October 13, at approximately 7:45 p.m., she was watching television in her living room when Russell called her from the lobby of her apartment building. She went downstairs and sat in the lobby, talking to Mr. Russell, for the next two hours. When Russell asked her to join him at a club, however, she declined and returned to her apartment.

Rosalyn Russell, appellant's sister, who had lived with her brother and Ms. Card during the summer of 1991, testified that her brother was a good father who always stayed with his son, and that although he used to wear a plait in his hair, "that was before Ms. Card came into the picture."¹³ Janet Russell, appellant's mother, testified that he was very close to his son and had taken steps to obtain custody of him. She also testified that Angela Card appeared one day on her doorstep with Christopher, saying that her mother had thrown her out.

C. The Prosecutor's Comments and the Court's Instructions

In his opening statement, the prosecutor told the jury that Deon Russell had "enlisted an accomplice, a man named Kenneth Hahn, who has had his day in court." He said that Hahn...