West v. United States
| Decision Date | 21 October 1985 |
| Docket Number | No. 84-288,No. 84-287,No. 84-289.,84-287,84-288,84-289. |
| Citation | 499 A.2d 860 |
| Parties | Benson WEST, Edward A. Jackson and Michael A. Britt, Appellants, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Mark S. Carlin, Public Defender Service, Washington, D.C., with whom James Klein, Public Defender Service, Washington, D.C., was on brief, for appellant West.
Diane Kiester Dildine, Washington, D.C., appointed by the court, for appellant Jackson.
Mark A. Gallagher, Law Student Counsel, with whom Susan L. Siegal, Appellate Law Fellow, appointed by the court, and Steven H. Goldblatt, Director, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, D.C., and Randa J. Trapp, Law Student, were on brief, for appellant Britt.
Wendy Bebie, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Judith Hetherton, and Barry M. Tapp, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before PRYOR, Chief Judge, and TERRY and ROGERS, Associate Judges.
Following a joint jury trial, appellants, Benson West, Edward Jackson, and Michael Britt, were each found guilty of one count of first-degree felony murder while armed (D.C. Code §§ 22-2401, -3202 (1981)), one count of armed robbery (id. §§ 22-2901, -3202), and two counts of attempted robbery while armed (id. §§ 22-2901, -3202). In addition, West was convicted of one count of carrying a pistol without a license (id. § 22-3204).
On appeal, appellants challenge their convictions on a number of grounds. West asserts that the trial court erred in refusing to give a requested lesser-included-offense instruction on manslaughter while armed. Britt and Jackson contend that the trial court erred in denying their motions to sever their cases for trial. They also argue that the government's evidence at trial was insufficient to support their convictions for felony murder. Lastly, Jackson claims that his Sixth Amendment right to confront witnesses was violated when the prosecution was allowed to allude, during cross-examination, to portions of Jackson's codefendants' confessions. Finding no reversible error, we affirm appellants' convictions.
In the early morning hours of January 5, 1983, Michael Scott, Lisa Layton, and Layton's boyfriend, Clayton Brown, drove Scott's mother's truck from Alexandria, Virginia, into the District of Columbia, to the 900 block of Varney Street, S.E. Their purpose in coming into the District was to deliver some furniture for Scott's mother. The events which ensued following their arrival on Varney Street, culminating in the shooting death of Clayton Brown, were the subject of differing accounts by the five eyewitnesses who testified at trial.
The government's evidence at trial included the testimony of four eyewitnesses: the victims, Michael Scott and Lisa Layton, and two bystanders, Maurice Cary and Andre Cary, who are brothers.
Michael Scott testified that when he, Layton, and Brown reached Varney Street, Brown, who was driving, stopped the truck near a group of people congregated around a burning sofa. Scott rolled down his window part way and called out that he wanted to purchase some marijuana. In response to Scott's offer, two men approached the truck holding bags of marijuana. Scott testified that he reached into his pocket and took out five one-dollar bills, and "the next thing [he] knew" one of the men put a gun to Scott's head and announced a robbery. Layton and Scott were ordered out of the truck and searched. Brown remained in the truck. His wallet was searched but he had no money. Scott testified that he heard Lisa Layton crying, and that he heard Brown call out from inside the truck, "you can rob us but leave her alone." One of the robbers warned Brown to be quiet or he would shoot Brown. Notwithstanding the warning, Brown started to get out of the truck and stated, "well, you're going to have to shoot me." Scott and Layton heard a shot and saw Brown "grab his heart." They immediately jumped into the truck and drove away, as the robbers fled the scene.
Scott subsequently identified Jackson and West from a photograph of a lineup, as people who had been present during the robbery and shooting. At trial, however, Scott was unable to specify their exact roles in the events on the night of January 5.
Lisa Layton's testimony to a large degree paralleled Scott's version of the shooting. In addition, she testified that after she got out of the truck, one of the robbers, later identified as Michael Britt, searched her first by feeling her legs and then by putting his hand down her shirt and feeling her chest. When he then "said something about raping [Layton]," she began to cry, causing Brown to come to her defense. She stated further that West was the individual who shot Brown.1
Andre Cary testified that he could not hear words exchanged between appellants and the victims, but did see that West had a gun in his hand when Scott and Layton exited the truck. Maurice Cary testified that he saw Jackson "walking back and forward" on the pavement about six feet or less from the truck and eventually saw Jackson "checking" and "searching" Layton and Scott. Both Cary brothers saw Britt "patting" or holding Layton. They further testified that, immediately before the shooting, they saw Brown get out of the truck, put "something" or a "glove" on his hand, and walk toward West as if he was going to "harm" or "hit" him.2 Andre saw West raise the gun, but turned away before the shot was fired. When Andre looked back, he saw a man jump into the truck, and saw West holding the gun by his side. Maurice Cary testified that he watched West "pull the trigger."
The government's evidence also showed that, in the hours immediately following the shooting, Detectives Kerwood C. Nixon and Ronald S. Taylor of the Metropolitan Police Department, who were assigned to investigate Brown's death, developed information leading them to appellant West. After being advised of, and waiving, his Miranda3 rights, West confessed in writing to killing Clayton Brown. West claimed that he shot Brown because Brown "made a move like he was going to hit me." West's statement implicated Britt and Jackson in the robbery and shooting, and on January 11, 1983, Britt and Jackson were arrested. Britt also gave a written statement to the police in which he admitted his participation in the robbery.
Neither West nor Britt testified at trial.4 Jackson did testify on his own behalf. According to his account, the shooting did not arise out of a planned robbery; rather, it was the unplanned outcome of a marijuana sale gone awry.
Jackson claimed that in response to Scott's request for marijuana, he approached the truck with a number of "reefer bags . . . reached in and put a bag in the truck." When Scott, who had just paid Jackson five dollars, complained that the bag was too small, Jackson put two more bags of marijuana into the truck. According to Jackson, Scott suddenly rolled up the window on his arm. Because he thought the group in the truck was preparing to drive away without paying for the rest of the marijuana, he called to West, Britt, and Andre Cary, who were standing nearby, and told them "to bust them up" if the truck pulled away. Brown then got out of the truck and walked around the front of it. Jackson claimed that he tried to explain to Brown that he had been "pulling on the truck" because Scott had two bags of marijuana for which Jackson had not been paid.
Jackson testified further that he suddenly saw Andre Cary searching Scott and heard Layton scream. He then watched Brown walk over, grab Britt and tell him to leave Layton alone. Britt pushed Brown, and West threatened Brown, "[I]f you don't leave [Britt] alone I'm going to bust you up." Then Brown began "running toward him with a glove on . . . [and] [t]hen a shot went off." Jackson left the scene and went home.
Jackson denied planning or intending to rob anyone on the night of the shooting. Rather, he claimed that when he went to Varney Street that evening, his only intention was to sell "the reefer that [he] had."
We first address West's sole contention on appeal: that the trial court erred in refusing a requested lesser-included-offense instruction on manslaughter. West argues that such an instruction was appropriate because the jury could have concluded that West shot Brown after the robbery was completed, and in response to what West perceived was an armed assault by Brown. The trial court rejected the request for a manslaughter instruction and, instead, instructed the jury inter alia on the elements of first-degree felony murder and second-degree murder because the court did not believe a manslaughter instruction was "consistent with the evidence." We agree with this conclusion.
A defendant is entitled to a lesser-included-offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge. Sansone v. United States, 380 U.S. 343, 349-50, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965); Day v. United States, 390 A.2d 957, 961 (D.C. 1978), overruled on other grounds, 490 A.2d 1086 (D.C. 1984).
With respect to the first element of this test, the government maintains that this court has never explicitly recognized voluntary manslaughter to be a lesser-included-offense of first-degree felony murder. For purposes of this case, however, we need not decide whether manslaughter is a lesser-included-offense of first-degree felony murder because we conclude that there was not sufficient evidence to warrant such an instruction.
Voluntary manslaughter is the unlawful or unexcused killing of a human being without malice. Morgan v. United States, 363 A.2d 999, 1002 (D.C. 1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53...
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