Jones v. United States

716 A.2d 160, 1998 D.C. App. LEXIS 136, 1998 WL 422686

• Court: District of Columbia Court of Appeals
• Decided: July 23, 1998
• Docket: 96-CF-1252
• Status: Published

Opinions

STEADMAN, Associate Judge:

Erik Jones was convicted by a jury of one count of accessory after the fact to first degree murder while armed, D.C.Code § 22-106 (1996), and one count of obstruction of justice, D.C.Code § 22-722(a) (1996).¹ The only issue on appeal is whether the evidence presented to the jury was sufficient to support those convictions.

When reviewing a challenge to the sufficiency of the evidence, we examine that evidence in the light most favorable to sustaining the verdict. See, e.g., Hammon v. United States, 695 A.2d 97, 107 (D.C.1997); Irick v. United States, 565 A.2d 26, 30 (D.C.1989); McClain v. United States, 460 A.2d 562, 567 (D.C.1983). We must recognize “the jury’s right to assess credibility and to draw reasonable inferences from the evidence it has heard,” Nelson v. United States, 601 A.2d 582, 593 (D.C.1991), and accord equal weight to circumstantial evidence and direct evidence, Hammon, supra, 695 A.2d at 107. The government need not disprove every theory of innocence. Lattimore v. United States, 684 A.2d 357, 359 (D.C.1996); Irick, supra, 565 A.2d at 30-31. We shall reverse a conviction for insufficiency only if there is no evidence from which a reasonable mind might find the defendant guilty beyond a reasonable doubt. Harris v. United States, 668 A.2d 839, 841 (D.C.1995). Applying these standards for review of claimed evidentiary insufficiency, we affirm'the convictions.

I.

From the evidence presented by the government, the jury could have concluded that the following events took place on the evening of April 9, 1994. At approximately 11:30 p.m., Rogest Webb rose from his seat on a curb in the 200 block of K Street, S.W., and walked north along a nearby walkway or “cut.” In the cut, Webb encountered Arthur Rice, an acquaintance, heading in the opposite direction, and he spoke briefly to Rice. After Rice passed by, Webb turned to see him walk quickly towards Steven Dunbar, who also had been sitting on the K Street curb near the entrance to the cut. Webb noticed that Rice was carrying a pistol. Rice then shot Dunbar seven times, killing him.

Webb testified that once he heard the shots, he ran for safety towards the back of the cut. He then jumped over a fence, looked back into the shadowy cut, and saw appellant, whom he knew from the neighborhood as “Erky-Berk.” Appellant stood about fourteen feet away with his arm raised. Webb testified that appellant fired two or three shots at him, none of which hit, but acknowledged that he could not see a weapon in appellant’s upraised hand. Webb ran to a friend’s house and told him what happened; the friend testified at trial that Webb told him, “[T]he guy tried to shoot me because I saw him.” Webb later identified appellant and Rice from separate photo arrays, and he identified appellant in court.

This was not Webb’s first encounter with appellant and Rice that day. He had seen both of them earlier “[h]anging around K Street,” and on other occasions he would frequently see them “[w]alking along or sitting in the cut.” Appellant was wearing the same outfit — “yellowish” boots, black jeans, and a gray sweatshirt — when Webb saw him in the cut as he had been wearing “around noon” that day. Other witnesses also testified to the fact that appellant and Rice were frequently seen together in the neighborhood.

Jermaine Goings saw two men who he thought were appellant, whom he knew well, and Rice, with whom he was acquainted, emerge from the cut and shoot Dunbar.² After the shooting, Goings saw the two then run back into the cut.³ Janice Dudley, who lived in the 200 block of K Street, walked out of her house after she heard the gunshots and saw appellant and Rice running together out of a second cut closer to Third Street. Dudley lived on that stretch of K Street for most of her life and had known appellant for approximately twenty years. She saw appellant “very often.” Rice, she testified, “was new to our neighborhood just by two to three years.” Although Dudley knew Rice, too, she saw him less frequently than she saw appellant.

On May 10, 1995, while executing a search warrant in an unrelated case at 211 I Street, S.E., police recovered the following note:

Dear Butehie

What’s up? Right about now you and Drapper probably have some fun. I need you to talk to Vance before the lawyer’s talk to him for you can program him on what to say. I am going to give you his number 554-0577 he also surpose to get in contact with somebody for me. I need you to tell him what to say. Because! I don’t what to talk to him like that on the phone. Alright! I want him to say that Erik and Arthur was standing across the street in the cort when the shooting started and he saw people running and screaming. Tell Mr. William’s that I said Hayman. I appreciate where thing you have done for me. Thank’s man you and shorty be easy and take care.⁴

The letter was undated and unsigned, although an expert testified that it was in appellant’s handwriting. The “Vance” identified in the note proved to be Vance Matthews, a young man who lived in the neighborhood. He was acquainted with appellant, Rice, and Dunbar, and his telephone number was the same number in the note. Matthews did not witness the shooting implicating appellant and Rice because he was watching a televised boxing match at a friend’s house on Third Street, S.W.

II.

We start with appellant’s challenge to his conviction for accessory after the fact to first degree murder while armed.⁵ The jury returned only a general verdict, but the government argues that the conviction is based on appellant’s actions immediately after the murder of Dunbar, including his encounter with Webb in the cut and his flight with Rice out of another cut.

The elements of accessory after the fact to first degree murder while armed are: (1) that the offense of first degree murder while armed had been committed, (2) that the defendant knew that this offense had been committed, (3) that, knowing that this offense had been committed, the defendant provided assistance to the person who committed it, and (4) that the defendant did so with the specific intent to hinder or prevent that person’s arrest, trial, or punishment. See Criminal Jury Instructions for the District of Columbia, No. 4.01 (4th ed.1993); see also Butler v. United States, 481 A.2d 431, 442-43 (D.C.1984). The jury was instructed accordingly without objection.

That Rice committed first-degree murder of Dunbar is uncontested. However, as noted above, a defendant may not be convicted of accessory after the fact to murder unless the government has proven that the defendant knew before he acted that the murder had actually been perpetrated. See Little v. United States, 709 A.2d 708, 712-14 (D.C.1998). From the sequence of events, we think the jury could conclude beyond a reasonable doubt that appellant knew Rice had murdered Dunbar. Appellant was placed as a witness to the event. Dunbar was shot seven times at close range, three times to the head, from which the jury as well as appellant could infer that death was instantaneous. In any event, from the close affiliation of Rice and appellant both before and after the killing, the jury could reasonably infer that appellant was aware of Rice’s plan to Mil Dunbar and, at least by the time of the joint escape and running out of the cut, Rice had apprised appellant of the success of the mission.

A third element of the offense of accessory after the fact is that the defendant “act personally to aid or assist the felon to avoid detection or apprehension for the crime or crimes.” Outlaw v. United States, 632 A.2d 408, 411 (D.C.1993) (quoting Howell v. State, 62 Md.App. 278, 489 A.2d 55, 58 (1985)). As to the types of conduct that aid or assist the felon in this respect, examples include “open force and violence to rescue or protect him,” id. (quoting IV W. BlacKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 38 (Chitty ed. 1826)), “inducing a witness to absent himself or to remain silent,” id. at 411-12 (quoting 2 Wayne R. LaFave & Austin W. Soott, Substantive Criminal Law § 6.9, at 168-69 (1986)), and “aiding the felon in making Ms escape,” id. at 411 (quoting 2 LaFave & Soott, supra, § 6.9, at 168).

The government maintains that appellant engaged in two different actions that provided after-the-fact assistance to Rice. The first was shooting at or otherwise threatening Webb in the cut. This action, the government argues, provided assistance to the principal felon in two ways: (1) by attempting to eliminate an eyewitness to the murder or at least intimidate him to not speak with authorities about the matter or testify at trial, and (2) by scaring off Webb and thereby preventing an attempt to pursue Rice or interfere with his escape.

We think a reasonable jury could conclude that appellant shot at Webb in an effort to “induc[e] a witness to absent himself or to remain silent.” See Outlaw, supra, 632 A.2d at 411-12 (quoting 2 LaFave & Soott, supra, § 6.9, at 168-69). Webb had passed Rice and even spoken to him moments before Rice shot Dunbar; he also looked back through the cut and personally witnessed the murder. A jury could reasonably infer that, by firing in Webb’s direction, appellant wanted to frighten away a key eyewitness and also suggest the consequences of antagonizing Rice. The shooting also was susceptible to an interpretation as “open force and violence to rescue or protect” the felon by clearing an escape route through the cut. See id. at 411 (quoting Blacrstone, supra, at 38). Goings testified that appellant and Rice ran together into the cut immediately after Dunbar was shot, and Dudley later saw the two emerge from a second cut nearby.

That the jury acquitted appellant of the various counts relating to the Webb incident, see note 1, supra, does not negate the sufficiency of the evidence as to the conviction for being an accessory after the fact. “It is now well-established that inconsistent verdicts by themselves do not mandate reversal.” United States v. Dobyns, 679 A.2d 487, 490 (D.C.1996), cert. denied, — U.S. -, 117 S.Ct. 1859, 137 L.Ed.2d 1060 (1997); see also (Diane) Smith v. United States, 684 A.2d 307, 312 (D.C.1996). So long as the evidence was sufficient to support the conviction in question, the fact that the jury acquitted the appellant of certain related counts does not invalidate the conviction. Ransom v. United States, 630 A.2d 170, 172 (D.C.1993).⁶

Furthermore, the outcomes are not necessarily inconsistent. The government was not able to introduce a working pistol or discarded shell fragments that it could link to the Jones-Webb altercation and Webb suffered no bullet wounds. The trial court in granting judgments of acquittal on the counts of carrying a pistol without a license and assault with intent to kill while armed expressed concern about the possible use of an imitation firearm. These and other aspects of the ease might have led the jury to have some doubt as to the related counts but still remain thoroughly convinced that Jones’s activities in the cut against Webb made him an accessory after the fact.⁷

The second form of assistance rendered by appellant, the government argues, was to join Rice and escort him as he ran through the cut and an adjacent one and emerged further up K Street. Appellant might be presumed to have carried the same weapon Webb thought he had brandished in the cut, and to have remained available to scare off or eliminate any others he and Rice might encounter during their flight. The jury arguably could find that by escorting Rice through two cuts, into K Street, and off into the distance, appellant was “aiding the felon in making his escape.” See Outlaw, supra, 632 A.2d at 411 (quoting 2 LaFave & SCOTT, supra, § 6.9, at 168). Cf. Prophet v. United States, 602 A2d 1087, 1092-93 (D.C.1992) (affirming conviction for aiding and abetting robbery where, inter aha, appellant “followed behind [the principal], looking in all directions as a lookout might do ... [,] watched the robbery and murder and immediately met up with [the principal] at the other end of the alley through which [he] fled.”).⁸

But we need not here decide whether the evidence of the second form of asserted assistance would alone suffice to support the verdict. Even if joining Rice in his flight would not in itself be enough to render appellant an accessory after the fact, this action could be considered by the jury as further proof bearing upon the nature and purpose of any ambiguous action in the cut.⁹ The “Dear Butchie” letter provided further evidence to the same end, vividly demonstrating that appellant was quite interested in preventing Rice’s apprehension, trial, or punishment. Appellant had written that he needed to “program [Vance] on what to say,” not only on the whereabouts of appellant himself but also those of Rice. Cf. Ruffin v. United States, 524 A.2d 685, 706 (D.C.1987) (per curiam) (holding that sufficient evidence supported an accessory after the fact conviction where, inter aha, appellant urged principal not to speak to the police). The jury might also have taken the letter as a reflection of appellant’s consciousness of his own guilt. We have long held that a defendant’s effort to interfere with a witness may constitute an implied admission of guilt. See (Darryl) Smith v. United States, 591 A.2d 229, 232 (D.C.1991); (John) Smith v. United States, 312 A.2d 781, 784-85 (D.C.1973).

The final element of an accessory after the fact crime is that the defendant render Ms assistance with the specific intent that it prevent the principal’s arrest, trial, or punishment. The jury may infer specific intent from the defendant’s actions. (Joel) Smith v. United States, 466 A.2d 429, 432 (D.C.1983) (per curiam); see also Carmon v. United States, 498 A.2d 580, 583 (D.C.1985) (“The evidence that appellant concealed the sweaters under Ms coat and walked out of the store without paying for them was sufficient to permit the court to infer the requisite specific mtent [to shoplift].”). Indeed, questions of intent almost by definition can be determined only by resort to circumstantial evidence. See Shelton v. United States, 505 A.2d 767, 770 (D.C.1986) (observing that specific intent “is a state of mind particular to the accused and unless such intent is admitted, it must be shown by circumstantial evidence”) (quoting Massey v. United States, 320 A.2d 296, 299 (D.C.1974)). We tMnk that the appellant’s acts of assistance here, if believed by the jury, when coupled with the “Dear ButeMe” letter, and the close association between appellant and Rice, includmg at the scene of the crime itself,¹⁰ plainly support a finding of the requisite intent.

Although affirming the conviction for accessory after the fact to first degree murder while armed, we must remand for resentencmg. Appellant was sentenced to a term of imprisonment of fifteen years to life for this conviction. The statute, however, establishes a maximum sentence of twenty years’ imprisonment for an accessory after the fact “to any crime pumshable by death.” See D.C.Code § 22-106 (1996). In Butler, supra, 481 A.2d at 447, we held that first degree murder while armed is a “crime punishable by death” within the meamng of the accessory after the fact statute, even though the maximum sentence for first degree murder is now life in prison pursuant to D.C.Code § 22-2402(a) (1996).

III.

We turn now to appellant’s conviction for obstruction of justice. This conviction is based on the “Dear Butehie” letter. Appellant does not dispute that he wrote the letter, nor does he contend that the government failed to prove any substantive element of the offense. Appellant contends solely that the government failed to prove when he wrote it. The mdictment alleged that appellant wrote it “[o]n or about December 22, 1994 to May 10, 1995.” Strictly speaking, this is not a sufficiency argument in its normal form. Rather, appellant seems to be arguing that the government constructively amended the indictment or impermissibly varied therefrom by failing to prove a fact asserted in the Mdictment. See Pace v. United States, 705 A.2d 673, 676-78 (D.C.1998). Nonetheless, however analyzed, the evidence is sufficient.

We start with the observation that “[w]hen an Mdictment charges that the offense occurred ‘on or about’ a certain date, as it did here, a defendant is on notice that a particular date is not critical.” Ingram v. United States, 592 A.2d 992, 1007 (D.C.1991) (emphasis added). “The evidence will conform to the Mdictment in such circumstances if it establishes that the offense was committed on a date reasonably close to the one alleged.” Id.

We think there was sufficient evidence that appellant wrote the note reasonably close to the wMdow of time alleged in the Mdictment. The government introduced as evidence the court jacket in this very same case, which showed that, pending trial, appellant had been in the custody of a third party until December 23, 1994. On that date, for reasons that are not important here and were not made known to the jury, a Superior Court judge revoked appellant’s third-party custody status and ordered him held without bond. The note was recovered on May 10, 1995, in a bedroom belonging to William Sweeney, whose nickname is “Draper.” A man known as “Butchie,” the addressee of the note, had previously lived at the same townhouse. The detective who testified as to the recovery of the note also testified that he had executed a search warrant at the same premises on November 1, 1994, and that this letter had not been found.

The jury could infer that appellant wrote the “Dear Butchie” letter while he was incarcerated, viz., sometime on or after December 22, 1994, the day before his bond was revoked. In the letter, appellant stated that he must speak with Vance to “program him on what to say,” but that he could only do so over the telephone and that he needs But-chie’s help as an intermediary. If appellant was incarcerated at the time, then his reluctance to speak over the telephone would be quite understandable since his conversation might be monitored by corrections authorities. But if he was not incarcerated at the time, then he could have arranged his own meeting with Vance and personally advised him on what to say. Therefore, the jury could reasonably infer that appellant wrote the letter after he was incarcerated in December but, of course, before it was discovered in May. The detective’s testimony that they had not found the letter during a search in November 1994, though by no means dis-positive, helped to narrow the range of dates to the period specified in the indictment.

IV.

Here, the highly experienced trial judge, who of course was present throughout the proceedings and heard all the evidence personally, carefully considered appellant’s post-trial written motion for judgment of acquittal¹¹ and concluded that the evidence was sufficient to support both convictions. She wrote a fifteen-page opinion setting forth the basis for that conclusion. On the cold record before us, we are quite unconvinced by appellant’s arguments that the trial judge was wrong.

Accordingly, we affirm the judgment on the obstruction of justice count and the conviction for accessory after the fact to first degree murder while armed, but remand for resentencing on the latter conviction.

So ordered.

1 . The jury acquitted Jones of an additional count of obstruction of justice, and counts of possession of a firearm during a crime of violence and assault with a dangerous weapon. All three of these counts related to the events in the "cut,” which we explain infra. The trial court granted appellant's motion for a judgment of acquittal on three other charges, as discussed infra. One of these was assault with intent to kill while armed, with respect to which the trial court permitted the lesser-included offense of assault with a dangerous weapon to go to the jury.

2 . Goings could not see the faces of the two men because they wore hoods. He testified that he thought the perpetrators were "Erky-Berk and Art” "BJust by the way they walked. It just looked — just by saying if I seen them every day [sic].” Goings had lived in the neighborhood for nine years and would see appellant "almost every day.” He would see Rice less often, "once in a while.” Goings acknowledged on cross-examination that because he did not see their faces, he could not "identify” appellant as being one of the men.

Goings did not know whether one or both of the men shot Dunbar.

3 . Another witness, Jimmy Lewis, confirmed that two men had emerged from the cut, one of them shot the decedent, and then both men fled into the cut. However, Lewis could not identify either assailant because the incident "happened so quick.”

4 . The note appears exactly as it was reproduced in the written order denying appellant’s post-trial motions for judgment of acquittal.

5 . Appellant makes several specific sufficiency arguments as to this conviction that we may dispose of summarily. First, he suggests that Rice had already successfully escaped when he (appellant) encountered Webb in the alley, and that therefore any assistance rendered would be ineffectual. But an eyewitness who had known both appellant and Rice for several years testified that they ran together out of an adjacent cut shortly after the shooting stopped, a fair indication that Rice hardly thought he had already made his escape.

Second, appellant contends that it would have been physically impossible for Webb to see Rice shoot Dunbar from the back of the cut, as he testified. An architect had testified that there was a wall that would have blocked a view from the back of the cut to the area outside the cut where Dunbar was killed, but there was contrary evidence. Dealing with any discrepancies was a quintessential jury matter. The same may be said for appellant’s assertion that it was impossible from the timing and physical layout that he would be both at the scene of the shooting and, shortly thereafter, back in the cut threatening Webb. The witnesses were testifying to a fast-moving series of events that the jury had to resolve, and we cannot conclude that it was impossible for him to have been in both places sequentially.

6 . We think that any attempt to analyze the “true" basis of a jury’s decision when engaged in a determination of evidentiary sufficiency would be an unacceptable dilution of the inconsistent verdict rule with no discernible limits. Cf. Dobyns, supra, 679 A.2d at 490-92.

7 .The dissent would make much of Webb’s acknowledgment in cross-examination that he did not positively see a firearm in appellant’s hand and that he did not know whether someone else could have been in the dark shooting at him. But what an honest witness might acknowledge as theoretical possibilities hardly weakened the force of Webb’s repeated and categorical assertions that appellant fired at him and that he was the only one back there at the time. While the evidence was sufficient to warrant a jury conclusion that appellant had in fact shot at Webb, even a similitude of such an action by appellant in the cut would suffice to support the conviction.

The quality of Webb's testimony bears no comparison with the shortcomings in Crawley v. United States, 320 A.2d 309 (D.C.1974), where the key witness did not previously know the defendant, had serious difficulties in observation, gave a significantly discrepant description immediately after the incident and was unable to identify the defendant in court.

8 . Rice’s escape is unlike the situation we encountered in Williams v. United States, 478 A.2d 1101 (D.C.1984). In Williams, we held that the driver of a getaway car was not an accessory after the fact to armed robbery because the offense was not yet complete; driving off with the loot was treated as part of the asportation element of robbery. Id. at 1105. Escape is of course not an element of the murder in this case.

On the other hand, it is clear from Prophet that a person serving only a lookout function can be an aider and abettor. We are unable to perceive any principle that would distinguish the effective assistance of a lookout, whether he be deemed an aider and abettor or an accessory after the fact.

9 . Conversely, the action in the cut might be used to bolster the interpretation of appellant’s role in accompanying Rice in his flight.

10 . There is no impermissible inconsistency between appellant’s alleged presence at the killing itself and his conviction as an accessory after the fact. Perhaps appellant could have been charged as an aider and abettor, but it does not follow that he could not also be charged as an accessory after the fact for those actions which occurred once the murder was completed. The long-established rule is quite the contrary. See (James) Smith v. United States, 113 U.S.App. D.C. 126, 127, 306 F.2d 286, 287 (1962) (per curiam). As we interpreted (James) Smith in Clark v. United States, 418 A.2d 1059, 1062 n. 4 (D.C.1980),

”[o]ne can be at the scene of the crime and be a principal participant, but one can also do other acts which would justify a conviction as an accessory after the fact." (Emphasis added.) The reference in Outlaw that an accessory after the fact cannot also act as a principal, citing a Maryland case, presumably used the word "principal” in its strict common-law sense, i.e., not an aider and abettor. See 632 A.2d at 411. A statute has modified the common law in this jurisdiction so that aiders and abettors are treated as principals. See D.C.Code § 22-105.

11 . Appellant had orally made such motions at the close of both the government and the defense case; the trial court reserved ruling on both oral motions pursuant to Superior Court Criminal Rule 29(b).