Watson v. United States
| Decision Date | 27 January 2022 |
| Docket Number | 19-CF-1015 |
| Parties | Derrick Watson, Appellant, v. United States, Appellee. |
| Court | D.C. Court of Appeals |
Argued June 30, 2021
Appeal from the Superior Court of the District of Columbia CF3-12378-17, Hon. Craig Iscoe, Trial Judge.
Deborah A. Persico for appellant.
Bryan H. Han, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney at the time, and Elizabeth Trosman, John P. Mannarino, Monica Trigoso, and Rachel Bohlen, Assistant United States Attorneys, were on the brief, for appellee.
Daniel Gonen, Public Defender Service, with whom Samia Fam was on the brief, filed an amicus curiae brief in support of appellant.
Before Blackburne-Rigsby, Chief Judge, Thompson, [*] Associate Judge, and Fisher, Senior Judge.
A jury convicted appellant Derrick Watson of several assault and weapons charges in connection with a shoot-out that occurred on the evening of July 10, 2017. In this appeal, appellant supported by amicus Public Defender Service (PDS) contends that his assault and associated weapons convictions must be reversed because they followed upon the trial court's having given the jury a number of instructions that were not supported by the evidence or were otherwise erroneous: a forfeiture (of self-defense)-by-provocation instruction; an urban gun battle (UGB) instruction; and a concurrent-intent instruction. Appellant also argues that the government failed to disprove beyond a reasonable doubt his claim of self-defense; that the evidence was insufficient to support most of his convictions;[1] and that some of his convictions must merge. For the reasons that follow, we reverse appellant's conviction of assault with significant bodily injury while armed (ASBIWA) and the associated conviction of possession of a firearm during a crime of violence (PFCV). We also vacate all but one of appellant's convictions of assault with a dangerous weapon (ADW) (intent to frighten) and the PFCV convictions associated with the vacated convictions. We affirm the remaining two ADW convictions, the two related PFCV convictions, and the FIP conviction.
The government's evidence in this case was presented largely through the testimony of a number of witnesses (Jamal Quigley, Geraldine Quigley, Elena Harris, and Shianne Washington) who were residents of the Wylie Court condominium complex located in the 1300 block of I Street, N.E., and who were socializing outside in the complex's courtyard on the evening of the shooting; and through video footage (Government Exhibit 600A) from a motion-activated surveillance camera mounted on one of the condominium units, which was played for the jury along with a slide show consisting of still shots taken from the video footage.[2] As the video depicts, on the summer evening in question, a number of residents and their guests, including "a lot of kids" and grandparents, were socializing or playing in the courtyard. Government witnesses testified that appellant and Saheed Salu had been playing "craps" in the courtyard. An argument broke out, with appellant (whom Ms. Quigley heard lament, "I let you back around here") accusing Mr. Salu of cheating at the game. Mr. Salu had lost money, was "very hyped" and "upset," and left the courtyard. He returned a couple hours later along with Kevin Williams.
Upon his return, Mr. Salu approached appellant. Although appellant tried to calm Mr. Salu down, the two "had words" (which Ms. Harris described as "not too . . . nice" words). Ms. Harris testified that the gist of the conversation appeared to be: "[W]e can be friends[] [b]ut if you don't obtain what I'm saying and take it the way I'm saying it to you, then it could go another way." After the conversation, appellant "felt some type of way," according to Mr. Quigley. At that point, appellant walked to his car, which was parked somewhere between 34 and 52 feet away from various parts of the courtyard;[3] got inside the car and stayed there for about nine or ten seconds, according to the video timestamp; and then re-emerged and walked back toward the courtyard and Mr. Salu. In closing argument, and referring to slide 505 in the slide show, one of the prosecutors urged the jury to find that appellant, while walking back toward Mr. Salu, gestured in a way to show that he had a gun.[4] As appellant began speaking again with Mr. Salu, Mr. Williams approached appellant; appellant noticed and appeared to step or lunge toward Mr. Williams, gun in hand and arm outstretched; Mr. Williams shot at appellant; and an exchange of gunshots ensued. Thereafter, Mr. Salu, who had pulled out a gun, fired at appellant and "shot all over the place," and, according to witnesses, appellant returned fire in the direction of Mr. Salu.[5] At one point, appellant returned to his car and reached inside, and Ms. Harris saw Mr. Watson reload (i.e., "put another clip into") his gun.
During the gunfire, people who were in the courtyard scattered, running and screaming. Mr. Quigley was in the courtyard with his thirteen-month-old son Jeremiah White, who was in a stroller. Mr. Quigley testified that he was "stuck" because bullets were "coming from both ways." Ms. Washington testified that "shots were kind of coming from everywhere" and that the children, including six-year-old Jaidyn Turner (who Ms. Harris testified was "screaming"), were "kind of scared." Ms. Washington grabbed Jaidyn to shield her and just stood still, believing that if she ran, they might get hit by a bullet.
Eventually Mr. Salu and Mr. Williams ran away from the courtyard, and appellant entered his car and drove off. When Mr. Quigley got Jeremiah inside, the child's great-grandmother attempted to change his diaper, saw blood, and realized that he had been shot. At the hospital, doctors discovered that he had three gunshot wounds: one on his lower back, a second on his upper buttocks, and a third in his upper thigh centimeters from his femoral artery, where a bullet was lodged.
A ballistics expert testified that three guns were used during the shoot-out, including a .40 caliber weapon that fired at least seven of the 13 or 14 casings, bullets, or fragments that were found. Based on where cartridge casings were found, the parties argued that appellant was the shooter of the .40 caliber ammunition.
Appellant did not testify. Messrs. Salu and Williams, who were also charged in the incident, entered guilty pleas to assault with intent to kill while armed (AWIKWA).
The jury acquitted appellant of the several counts of AWIKWA with which he was charged, but convicted him of one count of ADW against Mr. Williams (on both attempted-battery and intent-to-frighten theories); ADW (intent to frighten) against Mr. Salu, Mr. Quigley, Jeremiah, and Jaidyn; ASBIWA (against Jeremiah); PFCV related to each armed assault conviction; and FIP. The trial court sentenced appellant to an aggregate term of eighty months' imprisonment, including 48 months for ADW against Mr. Williams, sentences (concurrent to each other) of 20 months for each ADW (intent to frighten) conviction, 12 months for FIP, and (concurrent with all of the foregoing and with each other) 60 months for ASBIWA and 60 months for each of his six PFCV convictions. This appeal followed.
Although appellant raises his various claims with respect to all of his convictions except the FIP conviction, we are able to narrow our discussion by disposing at the outset of his convictions of intent-to-frighten assault against Mr. Quigley, Jeremiah, and Jaidyn. The underlying charges appear to have been based on the evidence that the gunfire created apprehension in Mr. Quigley (who testified that he was "stuck" in the crossfire between Mr. Watson and Mr. Salu) and in six-year-old Jaidyn (who was "screaming" and "scared" at the sounds of gunfire). But there is an issue as to whether appellant had the requisite intent to create apprehension in this group of bystanders[6] (and, we think, as to whether the gunshots had the potential to create apprehension in a one-year-old such as Jeremiah). Further, as appellant's brief notes, the government's brief does not respond to his argument that the evidence was insufficient to support the convictions of intent-to-frighten assault against Mr. Quigley, Jeremiah, and Jaidyn. Moreover, the government concedes that Mr. Watson's convictions of intent-to-frighten assault against Mr. Quigley, Jeremiah, and Jaidyn merge with his conviction of the same offense against Mr. Salu.[7] In light of all the foregoing, we vacate appellant's convictions of intent-to-frighten assault against Mr. Quigley, Jeremiah, and Jaidyn.
We now turn to appellant's and the amicus brief's challenges to the court's giving of the provocation instruction. The instruction the court gave the jury was as follows:
If you find that Mr. Watson provoked imminent danger of bodily harm upon himself, he cannot rely upon the right of self-defense to justify his use of force. One who deliberately puts himself in a position where he has reason to believe that his presence will provoke trouble cannot claim self-defense.[8]
Appellant - whose defense at trial was that he fired shots only in self-defense after Mr. Williams shot first - argues that there is no factual or legal support for "the idea that he 'provoked' the shooting merely because he approached Salu instead of staying in his car[.]" He asserts that there was no evidence that he knew Mr. Williams and Mr. Salu were armed and thus no evidence that he had a reason to believe that his return to the courtyard from his car would provoke a gun battle.[9]
Appellant is correct that no witness testified that Mr. Williams had displayed a gun before appellant went to or...
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