U.S. v. Felder, 87-871.

CourtCourt of Appeals of Columbia District
Citation548 A.2d 57
Docket NumberNo. 87-871.,87-871.
PartiesUNITED STATES of America, Appellant, v. Donnell FELDER, Appellee.
Decision Date16 September 1988
548 A.2d 57
UNITED STATES of America, Appellant,
Donnell FELDER, Appellee.
No. 87-871.
District of Columbia Court of Appeals.
Argued October 27, 1987.
Decided September 16, 1988.

Page 58

Helen Bollwerk, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, and Michael W. Farrell and Ronald Dixon, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

David A. Reiser, Public Defender Service, with whom James Klein, Public Defender Service, Washington, D.C., was on the brief, for appellee.

Before NEWMAN and FERREN, Associate Judges, and GALLAGHER. Senior Judge.

NEWMAN, Associate Judge:

In this case, we are called upon to determine whether the doctrine of collateral estoppel as a component of the Double Jeopardy Clause of the Fifth Amendment as enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and its progeny prevents the government from relitigating certain facts at a second trial. The trial court ruled that the government was barred from such relitigation. We review the matter de novo and agree with the ruling of the trial court; we affirm.

Felder was tried by a jury on an indictment charging felony murder while armed, attempted robbery while armed, and carryir g a pistol without a license. The jury returned a verdict of not guilty on the offense of carrying a pistol without a license. When the jury was ultimately unable to reach a unanimous verdict on the felony murder (as well as second degree murder which had been submitted as a lesser included offense of felony murder) and attempted robbery counts, the trial court declared a mistrial on those charges.

Prior to the scheduled retrial, Felder filed a motion seeking to bar the government from relitigating those facts necessarily disposed of favorably to Felder by his acquittal of carrying a pistol without a license. The government filed opposition and a hearing was held. After taking the matter under advisement, Judge Walton granted Felder's motion. The government appealed.

I. The Evidence At Trial

A review of the evidence presented at trial as well as the positions urged by the United States during trial is necessary to our Ashe v. Swenson analysis. The killing at issue in this case arose out of an attempt to rob a drug dealer which went awry. The government's evidence tended to show that Felder proposed to Bellinger that they rob a cocaine dealer. Bellinger agreed. Shortly thereafter, Myles (a friend of Bellinger's) arrived on the scene. Myles agreed to join the plan and exhibited a .22 caliber magnum Ruger revolver, which was tucked in his belt. The three persons travelled to the intended crime scene only to find that the drug dealer Felder had suggested they rob was nowhere to be found. Unfortunately for Gantt, as his killing demonstrates, he was present. According to Bellinger1, Gantt was selling marijuana.

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Gantt was about five yards from where Felder and Myles were standing. As Gantt turned to walk out of the area, Felder signalled Bellinger that the new robbery target was Gantt. Felder grabbed Gantt by the collar, but Gantt broke away and ran towards Bellinger. As Gantt ran, Bellinger said Felder shot Gantt in the back with the gun he had previously seen in Myles belt. Bellinger, Felder, and Myles all fled to a nearby apartment occupied by a woman Felder knew, Ruby Newton.

Jessie Penn also witnessed Gantt being shot and testified at trial. According to Penn, Gantt had previously been in a crap game where he had won. Bellinger had also been at the crap game. When Gantt left the crap game with his winnings, he was confronted by Bellinger. Bellinger and Gantt struggled; it appeared that Bellinger was trying to rob Gantt. While the struggle was continuing between Bellinger and Gantt, Felder and Myles were standing some distance away. Felder called out to Bellinger. Thereafter, Felder, who was near the top of some steps eighteen to twenty-one feet away, shot Gantt in the back. The three cohorts fled. Gantt later died of the gunshot.

Ruby Newton, to whose apartment Felder and the others fled, testified that Felder stated that they had just tried to rob a guy around the corner and that he left "his gun" around there. Because of events taking place at the Newton apartment, Felder and the other two men soon left that location, making their separate ways home.

Sometime later, during the arrest of Myles for an unrelated offense, the police seized a .22 caliber Ruger revolver. A subsequent test demonstrated that it was operable and that it was the weapon used to kill Gantt. An expert witness, Phillips, who examined the gun and the coat Gantt was wearing the night he was killed, testified that the gun had to have been within one inch of Gantt's coat when it was fired to produce the effect he observed. The government proved that Felder did not have a license to carry a pistol.

In his defense, Felder testified that he was innocently present on the scene where he saw Bellinger and Myles standing side by side with another man. Bellinger was "interlocked" struggling with this third man. Two or three seconds later he heard a shot and ran to Newton's apartment. Felder denied any participation in planning or attempting to carry out the robbery while armed; he further denied shooting Gantt or having a gun in his possession on the relevant date.

II. Argument and Instruction

The government told the jury in its opening statement that it would prove that Felder was the triggerman:

Mr. Gantt tussles, turns, breaks away, and is running away from Mr. Felder, with his back to Mr. Felder. He made one step, he made two steps, and then the driving force behind this agreement [to commit a robbery] pulled out the .22 long barrel six shot western style revolver and fired one shot into the back of Ruben Gantt who was running away from him.

The government also told the jury in its opening statement that the evidence would show that when the three men arrived at the Newton apartment, Felder was "nervous and upset for a greater reason" than Bellinger and Myles "because he pulled the trigger." The prosecutor, in explaining the evidence it would present on the carrying a pistol without a license offense, told the jury that Bellinger's testimony would put "that pistol right in the hand of Donnell Felder pulling the trigger."

As it indicated it would in its opening statement, the government presented its case to the jury on the theory that Felder was the triggerman. It did so by presenting the testimony of Bellinger and Penn, both who identified Felder as the triggerman. In addition, it presented testimony by Newton who testified to admissions made by Felder, which, the government urged, tended to suggest he was the triggerman. The testimony of Newton was

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impeached by defense testimony that Newton was an habitual drug user who was freebasing cocaine when Felder and the others arrived at her apartment on the day in question.

The testimony of the expert, Phillips, that the shot that had killed Gantt had been fired from a distance no greater than one inch from Gantt, i.e., it was likely a contact shot, presented a problem to the government's theory that Felder was the triggerman. Bellinger testified that Felder shot Gantt as Gantt was running away from Felder toward Bellinger. Indeed, Bellinger testified that he was surprised that Felder shot Gantt when Bellinger was in the line of fire. The other government eye-witness, Penn, puts Felder eighteen to twenty-one feet from Gantt when, Penn says, Felder shot Gantt. Both these versions (Bellinger's and Penn's) seem to be at odds with the expert testimony presented by the government's own expert about a contact shooting. On the other hand, a contact shooting by Bellinger was consistent with the testimony of Felder in his own defense that he heard a gunshot shortly after seeing Bellinger "interlocked," struggling with Gantt.

With the case in this posture, the court met with counsel to settle instructions. The government requested that the court instruct the jury on second-degree murder as a lesser included offense of felony murder. Felder objected. The court overruled the objection.2 The government also asked for an aiding and abetting instruction since the prosecutor stated he intended to ask the jury to convict Felder on alternative theories — either as the triggerman or as an aider and abettor of the triggerman. Based on this position of the government, Felder requested a special unanimity instruction. The trial court denied this request. The court gave the standard instructions on all the offenses as well as aiding and abetting. In addition, the court said it would instruct on accomplice liability to the charge of felony murder. The instruction on the offense of carrying a pistol without a license said:

The essential elements of the offense of carrying a pistol without a license, each of which the Government must prove beyond a reasonable doubt, are:

1. That the defendant carried openly or concealed on or about his person, a pistol;

2. That the pistol was operable;

3. That the defendant was not licensed to carry the pistol by the Chief of Police of the District of Columbia; and

4. That he had the intent to do the acts which constitute the carrying of a pistol without a license.

Criminal Jury Instructions for the District of Columbia, No. 4.81 (3d ed. 1978).

In closing argument, the government urged the jury to convict Felder on the theory that he was the triggerman. Alternatively, the prosecutor urged the jury to convict Felder of felony murder, even if it was not satisfied that he was the triggerman since the evidence indicated he at least aided and abetted the attempted armed robbery of Gantt, which resulted in Gantt's death.

III. Jury Proceedings

After the court had instructed as it said it would, the jury retired to deliberate. After several hours of deliberation, the jury sent the court two notes,...

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