kevin moore v. u.s., 90-cf-542 (d.c. ct. app. 1993)

8/12/2019 Kevin Moore v. U.S., 90-CF-542 (D.C. Ct. App. 1993)

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DISTRICT OF COLUMBI COURT OF APPEALSNo. 90-CF-542 [L [EVIN F. MOORE, ApPEllANT UL 2 993F.UNITED STATES ApPEllEE. COURT OF PPE LS

Appeal from the Superior Court of theDist r ic t of ColumbiaFl1775-88Criminal Division)

Han. Ricardo M. Urbina, Tria l Judge)Argued May 17, 1993 Decided July 2, 1993 )

Richard Todd Hunter appointed by t h i s court , for appel lant .Barbara K Bracher Assistant United States Attorney, with whom

jay B Stephens united s ta tes Attorney a t the t ime the br ie f wasf i led , and john R isher and Russell D Duncan Assis tant united Sta tesAttorneys, were on the br ief , for appellee.

Before ROGERS Chiefjudge and SCHWELB and WAGNER Associate judges.

MEHOR NDUK OPINION ND JUDGMENT

Appellant Kevin F. Moore, who was indicted for f i r s t degreemurder while armed and carrying a pis to l without a l icense, D.C.Code 22-2401 Repl. 1989), -3202, -3204 Supp. 1992), appealshis convict ion by a jury of second degree murder and carrying apis tol without a l icense on eight grounds. We aff irm.I

The charges arose out of the shooting death of the decedent,Reginald Simpson, who fa i led to turn over the proceeds from thesale of i l l ega l drugs tha t he was given on credi t by Damon Chase,who, in turn, had received the drugs on credi t from appellant . Inrul ing on appe l lan t s motion in limine to bar admission of other


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2cr imes Dnnv evidence t ha t tended to por t ray appe l l an t as a drugkingpin, the t r i a l judge ru led t h a t t he government could in t roduceevidence focusing on the deceden t s unpaid debt and t he p a r t i e sre la t ionships dur ing t he four t o s i x week per iod pr io r to theshooting.

Three witnesses t e s t i f i ed t h a t they saw appe l l an t ge t out ofhis jeep with a gun, aim, and f i r e two or t h r e e t imes as t hedecedent was running away. David Bal l inger and two othe r witnessest e s t i f i e d t h a t they heard appe l l an t t h r e a t e n the decedent s hor t l ybefore the shoot ing . In addi t ion to Bal l inger and Joseph Hughey,a f r i end o f t he deceden t s t e s t i f i e d t h a t she saw appe l l an t shootthe decedent .For t he defense, Nigel Williams2 t e s t i f i e d t h a t appe l l an tnever got out of h i s jeep a t t he shoot ing s i t e . Another witnesst e s t i f i e d t h a t he saw a man with a gun in h i s hand run back to ablue ca r and ente r the passenger s ide . Three o ther witnessest e s t i f i ed t h a t they saw a man, car ry ing what appeared to be a gun,running down the s t r ee t a f t e r the shoot ing . Appel lant t e s t i f i e dt ha t he never l e f t h i s j eep , t ha t Chase ran a f t e r t he decedent witha gun j u s t before the shoot ing , t h a t Hughey shot the decedent whiles i t t i n g in a c a r d i r ec t ly in f ront of a p p e l l a n t s j eep , and t h a ta man who appeared to be holding a gun ran down t he s t r e e t a f t e rthe shoot ing.

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Drew Ruling. 3 The pr inc ipa l i s sue ra i sed by appe l l an t r e l a t e sto whether the t r i a l judge e r red in denying a p p e l l a n t s motions fo ra mi s t r i a l because the prosecu to r r epea ted ly exceeded t he j udge sru l ing on Drew evidence. The prosecu to r asked Bal l inger , [w]hohad [ the decedent] seen you with with regards to [ the deceden t s ]se l l i ng drugs? Bal l inger mentioned appe l l an t and Chase. The

Dnnv v United States 118 U.S. App. D. C. 11, 331 F. 2d 85(1964).2 Williams t e s t i f i ed before t he grand ju ry t h a t appe l l an tshot the decedent , bu t s t a t ed a t t r i a l t h a t pol ice de tec t ives hadcoerced h i s s ta tements .3 The t r i a l judge proper ly admit ted evidence of the drugt ransac t ion (s ) occurr ing within four to s i x weeks of the shoot ingunder the motive except ion of Dnnv. See Drew, supra 118 U.S. App.

D.C. 11, 331 F.2d 85; if Robinson v United States No. 91-CF-1278, s l i pop. a t 9 (D. C. May 4, 1993): Johnson v United States 596 A.2d 980, 984(D.C. 1991) (review fo r abuse o f d i sc re t i on ) , cert. denied 1 1 2 S . C t .1987 (1992).


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3t r i a l judge i n t e rp r e t e d t he ques t ion as being within t heframework, of h i s ru l i ng and overru led the defense objec t ion , andthe prosecutor rephrased the ques t ion t o r e f e r to the month o r twobefore the shoot ing . Error , i any, was c l ea r l y harmless. SeeKotteakos v United States 328 U. S. 750, 765 (1946); see also Johnson supra596 A.2d a t 986; Dixon supra 565 A.2d a t 75 ( c i t a t ion omit ted) .The ob jec ted - to ques t ion immediately followed a s e r i e s of ques t ionsabout what happened the day o f the shoot ing . There wasoverwhelming evidence o f appe l l an t ' s g u i l t , and the of fendingques t ion d id not d i r ec t ly concern appe l l an t ' s gu i l t .

Appellant a lso notes t h a t t he deceden t ' s mother , t e s t i fy ingas a r ebu t t a l witness , s t a t ed t h a t she paid one o f her s on ' s debtsto t he appe l l an t . Appel lant c laims t h a t t h i s t es t imony a l s oexceeded the t r i a l judge ' s ~ ru l i ng . 4 Defense counse l objectedt ha t t he mother could not p lace t he debt -paying inc ident with in there levan t t ime per iod of four to s i x weeks before the shoot ing , andin f ac t could not remember in which year t he inc iden t occurred.The t r i a l judge susta ined the objec t ion , s t ruc k the mother ' st es t imony, and excluded a piece o f paper with a p p e l l a n t ' s name anda phone number, which the mother found in her son ' s room a f t e r h i sdeath . Given t he overwhelming evidence o f appe l l an t ' s g u i l t , weconclude t h a t the judge ' s ac t ions in s t r ik ing the t es t imony andevidence and i n s t ruc t i ng the j u ry to d i s regard any evidence s t ruc kfrom t he record were adequate to cure e r ro r , see Harris v United States602 A.2d 154, 165 (D.C. 1992) : Thompson v United States 546 A.2d 414,425 (D.C. 1988) : Dorman v United States 491 A.2d 455, 462 (D.C.1984), and t ha t t he r eques t fo r a mis t r i a l was proper ly denied. SeeJohnson supra 596 A.2d a t 986.

Appel lan t fur the r ob jec t s t h a t t he prosecu to r s t a t ed in h i sopening, clos ing , and r ebu t t a l arguments t h a t Hughey helped Chasedea l in drugs and t h a t some witnesses had t e s t i f i e d t h a t they wereinvolved in drug deal ing . These comments did not v io la t e t he ~ru l i ng because they did not spec i f i ca l l y concern appe l l an t ' s drug4 Appel l an t ' s c la im t h a t t h i s was an impermiss ib le use o f

ex t r in s i c evidence to impeach on a c o l l a t e r a l mat ter , see McClain vUnited States 460 A.2d 562, 569 (D.C. 1983) i s mer i t l e s s .Appel l an t ' s r e l a t i ons h ip with t he decedent was not a c o l l a t e r a lmat te r . Appel lant admit ted working with the decedent one summerand having cont inuing contac t with the decedent af terwards , butdenied t h a t t he decedent owed him money on the day o f the shoot ingand t h a t appe l l an t had rece ived money from the deceden t ' s mother.Likewise, appe l l an t ' s complaint t h a t t he t es t imony was undulypre j ud ic i a l because see ing deceden t ' s mother must have had anemotional impact on the j u ry i s mer i t l e s s s ince the jury hadal ready seen t he deceden t ' s mother t e s t i f y as the f i r s t prosecut ionwitness .


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4dealing. In addit ion, the prosecutor- s statement tha t the decedentwas ki l led because he fa i led lito turn over the prof i t s of the drugdealing to appellant , and refused or showed him disrespect ,referred to events immediately preceding the shooting and thereforecomplied with the rul ing.

The prosecutor 's statement during closing argument t ha t a l lf ive of these young men were involved in i l l i c i t drug dealing i smore t roubling because one of the f ive men was appellant . Thejudge overruled the defense object ion, in te rpre t ing the argumentto mean tha t a l l f ive men were involved with the par t icular cocainetha t caused the decedent 's debt. SeeJobnson supra 596 A.2d a t 986;Dixon v United States 565 A.2d 72, 75 (D.C. 1989) (c i ta t ion omitted).Any error was harmless because the jury had already heard enoughto be aware tha t appellant , the decedent, and many of the witnesseswere involved in drug deal ing See Kotteakos supra 328 U. S a t 765;Dixon supra 565 A.2d a t 75 (quoting Dyson v United States 418 A.2d127, 132 (D.C. 1980. The t r i a l judge did not e r r in denying amistr ial af te r closing argument.

Co-conspirator exception. Appellant contends tha t the t r i a ljudge erroneously permitted testimony about Chase's statementsunder the co-conspirator exception to the hearsay ru le . 5 See Butlerv United States 481 A.2d 431, 439 (D.C. 1984) cert. denied 470 U.S.1029 (1985); see also Bellanger v United States 548 A.2d 501, 502-03(D.C. 1988) (per curiam); Chavarria v United States 505 A.2d 59, 62(D. C. 1986). Even i f w were to r e j ec t the government's apparentlyreasonable contention tha t Chase's statements were properlyadmitted because they were made in furtherance of the conspiracy,Butler supra 481 A.2d a t 439, w would f ind any er ror harmlessbecause of the extensive ident i f ica t ion and other evidence ofgui l t . See Kotteakos v United States 328 U.S. 750, 765 (1946). Therewas other evidence before the jury about the drug conspiracyinvolving appellant , Chase and the decedent. Moreover, there wassuf f ic ient evidence to prove each of the elements required byButler supra 481 A.2d a t 439, 441, including independent nonhearsay testimony tha t a conspiracy exis ted.

Appellant addi t ional ly claims tha t in many instances , theco-conspirator statements were beyond the scope of the judge 's Drewruling, and tha t admission of statements made by a deceased coconspirator violated appellant ' s Sixth Amendment r ight to confrontwitnesses . However, the statements di rec t ly concerned the speci f icdebt tha t led to the decedent 's beating and death and they did notviola te appellant ' s Sixth Amendment r ights . See United States v lnadi475 U.S. 387, 395-400; Dutton v Evans 400 U.S. 74, 82-84 (1970); see

5 Chase was deceased a t the t ime of t r i a l .


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5also Butler, supra 481 A.2d a t 438, 442 n.18.

Grand Jury Testimony. Appellant contends tha t the prosecutorused grand jury testimony as sUbstantive evidence of his gui l trather than for impeachment. See Gray v United States 589 A.2d 912,915 (D.C. 1991); if Brooks v United States 448 A.2d 253, 258-59 (D.C.1982). The record shows tha t the t r i a l judge careful ly controlledthe prosecutor 's use of the grand jury testimony and sustainedseveral objections. The judge twice instructed the jury on the useof the pr ior testimony. The prosecutor also s ta ted in closingargument tha t the grand jury testimony could not be considered fori t s t ru th , but only to evaluate c red ib i l i ty . Accordingly, w f indno er ror in the t r i a l judge 's fai lure, sua sponte to take furthermeasures concerning the use of Williams' grand jury testimony. CfBrooks, supra 448 A.2d a t 260. 6

Arguments to Jury. Appellant contends tha t parts of theprosecutor 's arguments were inflammatory and improper. Theprosecutor 's opening argument tha t appel lant ' s gi r l f r i end t r i edto stop [appellant] from doing i t , was not an expression of theprosecutor 's personal opinion but a permissible inference from theevidence tha t appellant asked his gir l f r iend to get the gun fromthe jeep 's glove compartment, she refused, and he cursed her . SeeMcGrier v United States 597 A.2d 36, 43 (D. C. 1991); Irick v United States565 A.2d 26, 37-38 (D.C. 1989); Powell v United States 455 A.2d 405,408, 410 & n.4a (D.C. 1982). The prosecutor 's statement tha t thegir l f r iend t r ied to do the r ight thing .was a fa i r inference fromthe gi r l f r i end ' s refusal to get the gun. 7

However, the prosecutor 's argument tha t the gi r l f r i end saidn[n]o we're going home, we're going to steak N Eggs, w don' t needth is , leave t alone, was unsupported by the evidence. See Howard)Jones v United States 512 A.2d 253, 257-58 (D.C. 1986). But, sinceshe refused to hand appellant the gun and the two l a t e r went to

6 Appellant contends tha t the prosecutor 's use of the pr iorinconsis tent grand jury testimony was disorganized, contrary tousual pract ice and prejudic ia l , because the prosecutor had thewitness read from the grand jury testimony, and the pr ior testimonywas therefore presented as SUbstantive evidence. Cf Frederick v UnitedStates 472 A.2d 888, 889-90 (D.C. 1984). Any error in theprosecutor 's form was harmless.

7 Appellant also contends tha t testimony tha t appel lant ' sgir l f r iend said no, " when asked to get appel lant ' s gun wasinadmissable hearsay. There was no object ion a t t r i a l , and we findno plain error . See Watts, supra 362 A.2d a t 709. The testimonyadded only corroborative deta i l .


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6s teak N Eggs, we f ind no pla in er ror , espec ia l ly given the s t rongevidence agains t appel lant , the t angent i a l re la t ionship between theal leged s ta tement and appe l l an t s gu i l t , and the judge sins t ruc t ions t ha t counsels arguments a re not evidence and t ha t thej u ry s memory of the evidence cont ro l s . Cf Lewis v United States, 541A.2d 145, 146-47, 149 (D.C. 1988). 8

Nor do we f ind pla in er ror in the admission of tes t imony aboutHughey s background and about pagers and por tab le te lephones usedby some witnesses . See Watts supra, 362 A.2d a t 709. Defensecounsel objected to the form of the prosecu t o r s cross-examinationabout pagers and por table te lephones , and on appeal he contendstha t such quest ions were i r re levant and implied cr iminal ac t iv i ty .See lvlcCoy v United States, 518 A.2d 1013, 1016-17 (D.C. 1986), cert.denied, 485 U.S. 907 (1988). The prosecu t o r s quest ions aboutwitnesses possession of appe l lan t s beeper and por tab le te lephone,and t he i r use of beepers to contac t other persons who a l sot e s t i f i e d a t appel lant s t r i a l , were proper to expl i ca te thewitnesses I re la t ionships with appe l lan t and t he i r contac t withothe r witnesses before the t r i a l . Mere possess ion of a beeper i snot per se evidence of a crime and does not t r igge r a Drew analys i s .Cf Bigelow v United States, 498 A.2d 210, 212-23 (D. C. 1985); Hawkins vUnited States, 482 A.2d 1230, 1232 (D. C. 1984); qames Jones v UnitedStates, 477 A.2d 231, 237-38 (D.C. 1984).

Iden t i f ica t ion evidence. Appellant s content ion t ha t thet r i a l judge erred in admit t ing out -of -cour t and in -cour tiden t i f ica t ions by the decedent s f r iend, Carol Moses, i smeri t less . Appellant contends t ha t a photographic array wasimpermissibly suggest ive because t conta ined some photographswhich had appeared in a previous array. The t r i a l judge cor rec t l yappl ied the fac tors of Manson v Brathwaite, 432 U.S. 98, 114-115(1977), and Neil v Biggers 432 U.S. 188, 200-01 (1972), in f i n i n ~tha t the photographs produced in cour t were not unduly suggest ive ,and tha t there were suff ic ien t ind ic ia of r e l i a b i l i t y and an

8 Appellant a lso contends tha t some of the prosecu tor sremarks during opening, c los ing, and r ebu t t a l argument wereinflammatory. e f ind no pla in e r ro r . See Irick supra, 565 A.2d a t3 4 3 7 ; Doe v United States, 583 A.2d 670, 676 (D.C. 1990); Watts vUnited States, 362 A.2d 706, 709 (D.C. 1976) (en banc) ; if Dixon vUnited States, 565 A.2d 72, 76-77 (D.C. 1989).

The judge noted tha t there was conf l i c t ing tes t imonyconcerning how many arrays the witness had viewed and how manyphotographs were in each array, nor was t c lea r t ha t a l l of thephotographs shown to the witness had been made avai l ab le to thecour t .

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7independent source for the witness ' ident i f ica t ion of appellant.The findings are supported by evidence tha t the witness viewed theshooter from approximately two feet , her at tent ion was focused a tthe time of the observation, and she t es t i f i ed tha t she was verysure of her ident i f ica t ions of appellant. 1 Therefore, there i s nobasis to conclude tha t the t r i a l judge erred in admitt ing theident i f ica t ions . See Stewart v United States 490 A.2d 619, 623 (D. C.1985).11

10 Appellant notes tha t Moses used approximately three bagsof crack cocaine on the morning of the shooting, before making herobservations a t about 1:30 p.m. However, Moses t e s t i f i ed tha t therushrt from using the drugs only las ted about f ive to ten minutes,and tha t a t the time of her observations she was rtclear headed.Cf Williams v United States 595 A.2d 1003, 1006 (D. C. 1991). Appellantalso asser t s tha t Moses to ld the grand jury tha t Chase shot thevict im. In fact , Moses to ld the grand jury n[ t ]hat Damon [Chase)had [the decedent] shot , (emphasis added), which i s not the sameas saying tha t Chase personally pulled the t r igger . In addit ion,Moses dist inguished between Chase and the shooter when she spoketo pol ice on the day of the shooting, s ta t ing tha t the shooter wasstanding next to Chase during the f ight .

We f ind no merit in appel lant ' s remaining contentions.Appellant claims tha t his due process r ights and Sixth Amendmentr ight to an impartial jury were violated when the t r i a l judgefai led to voir di re the jurors individually during t r i a l todetermine whether they were exposed to episodes of a te levis ionprogram tha t contained reports about appel lant . During pre- t r ia lvoi r dire , the judge asked i f any potent ial jury members had seent e levis ion or other media coverage of the case. Appellant concedestha t the pre t r ia l voi r d i re was adequate. See Welch v United States466 A.2d 829, 837 (D.C. 1983). Throughout the t r i a l , the judgerepeatedly inst ructed the jury not to watch or l i s ten to te levis ionor other media coverage of the case. Cj Moms v United States 564A.2d 746, 748 (D.C. 1989): Welch supra 466 A.2d a t 836. Afterclosing arguments, defense counsel agreed tha t t was unnecessaryfor the judge to ask jurors about t he i r exposure to the program.See Mitchell v United States 569 A.2d 177, 180 (D.C. 1990), cm. denied498 U.S. 986 (1990). Therefore, the t r i a l judge did not e r r infa i l ing sua sponte to individual ly voir dire the jury concerningexposure to the t e levis ion program.

Nor did the t r i a l judge e r r in fa i l ing to give a sua spontemissing witness inst ruct ion, by which appellant appears to meanan ins t ruct ion tha t a witness may be absent for many reasons andthe jury i s not to concern i t s e l f about why the witness has nott es t i f i ed . For example, the jury was read a s t ipula t ion s ta t ing(continued )
http:///reader/full/1985).11http:///reader/full/1985).11


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8Accordingly, it i sORDERED and ADJUDGED t h a t t he judgment on appeal here in be,and hereby i s , aff i rmed.

FOR THE COURT:

copies to :

Honorable Ricardo H RubinaClerk, Superior CourtRichard Todd Hunter, Esquire801 North Pi t t StreetSuite 209, The Port RoyalAlexandria, VA 22314John R Fiaher, EsquireAssistant United States Attorney

continued)t h a t t he ju ry should not cons ider why Chase was not on t r i a l withappe l l an t . t was not improper fo r the prosecu to r to r e f e r , dur ingarguments to the jury , to appe l l an t s g i r l f r i end , who was presen tduring t he shoot ing and whose conduct was descr ibed by anotherwi tness , even though she did not t e s t i f y . The g i r l f r i e n d was nota missing witness because she was not pe c u l i a r ly a va i l a b le t o oneparty , but was presen t a t the cour t house under subpoena dur ing t het r i a l . The prosecutor d id not make a missing witness argument, andnever even impl ied t h a t appel lan t should have ca l l ed h i s g i r l f r i e n das a witness o r t h a t her tes t imony would have been adverse toappe l l an t . See Allen v United States 603 A.2d 1219, 1223 (D.C. 1992)(en banc) , cert denied 112 S. c t . 3050 (1992); McGrier v United Statessupra 597 A.2d a t 47-48; Lemon v United States 564 A.2d 1368, 137576 (D.C. 1989). There was no e r ro r .

kevin moore v. u.s., 90-cf-542 (d.c. ct. app. 1993)

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