Petition for Writ of Certiorari — Reed v. United States

Supreme Court, U.S

FILED

t

ray .

IN THE

Supreme Court of the United States

ANTONIO REED.

PETITIONER,

UNIreD STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

ROBERT L. ZISK

Counsel of Record

ferric L. YAFFE

Gray, Plant, Mooty, Mooty & Bennett, P.A

2600 Virginia Avenue, N.W., Surte 1111

Telephone: (202) 295-2200

robert.zisk@ppmlaw.com

Counsel for Petitioner Antonio Reed

ag pm i ri ea RR NL GEIS i EER SEIS ELIE DIINO HEE

(a ET RP ARIE REREAD NCEE PINRO ISIN RIT PISTONS AAI

LEGAL PRINTERS LUC, Washington DC e 202-747-2400 @ leyalprinters.com

QUESTION PRESENTED

Whether a prior inconsistent statement is

sufficient evidence to support a conviction when the

statement giver has no recollection of the events in

question and therefore cannot be cross-examined

effectively about the contents of the statement?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW.

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT

REASONS FOR GRANTING THE PETITION

THE DECISION BELOW IMPROPERLY

EXPANDS THE SCOPE OF THE RULE

REGARDING ADMISSIBILITY OF PRIOR

INCONSISTENT STATEMENTS .......

THE DECISION BELOW CONFLICTS

WITH RULINGS OF THIS COURT, THEE

SIXTH CIRCUIT AND THE HIGHEST

COURTS OF SEVERAL STATES

lit

The Decision Conflicts With Principles

Kstablished By This Court In

California v. Green

The Decision Below Creates A

Direct Conflict With Decisions Of

Other Courts

CONCLUSION

lV

TABLE OF AUTHORITIES

Cases

Bell v. United States,

790 A.2d 523 (D.C. 2002) ..

Brower v. State,

728 P.2d 645 (Alaska 1986)

California v. Green,

399 US. 149 (1970)

Commonwealth v. Stneiro,

740 N.E. 2d 602 (Mass. 2000)

Douglas v. Alabama,

380 US. 415 (1965) ....

Johnson v. United States,

820 A.2d 551 (D.C. 2008)

Mattox v. United States,

156 U.S. 237 (1895)

R.T.L. v. State of Florida,

746 So. 2d 871 (Fla. Dist. Ct

App. 2000)..........

State v. Green,

667 So. 2d 756 (Fla. 1995)

State v. Moore,

485 So. 2d 1279 (Fla. 1986)..

State v. Perce,

906 S.W.2d 729 (Ct. App. Miss. 1995)

State v. Robar,

157 Vt. 387, 601 A.2d 1376 (Vt. 1991).

l/nited States v. Green,

548 F.2d 1261 (6th Cir. 1977)

United States v. Orrico,

599 F.2d 113 (6th Cir. 1979).

Constitutional Provisions, Rules, and Statutes

28 U.S.C. 1257(a)

28 U.S.C. 1257(b) .....

>. Code § 14-102(b)

_R. Ev. 801(d)(1)

>. Constitution: Amendment V1

>. Constitution: Amendment NIV......

Other Authorities

Stanley Goldman, Guilt by Intuition:

The Insufficiency of Prior Inconsistent

Statements to Convict, 65 N.C.L. REV. 1

(1986)

S. Rep. No. 1277, 93d Cong., 2d Sess.,

reprinted in 1974 U.S. Code Cong. &

Admin. News 7051 (483-84).

iJ. Weinstein & M. Berger,

Weinstein’s Evidence P

801 (d)(1)(A)[01] (1995)

PETITION FOR A WRIT OF CERTIORARI

Antonio Reed respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the District of Columbia

in this case.

OPINIONS BELOW

The opmion of the court of appeals denying

Petitioner's motion for rehearing en banc (App.,

untfra, 15a to 16a) is unreported. The opinion of the

Court of Appeals (App., infra, la to lla) is

unreported. The judgment of the trial court (App.,

infra, 12a to 14a) is unreported.

JURISDICTION

The United States Court of Appeals for the

District of Columbia denied Petitioner's appeal on

August 5, 2010, and on October 6, 2010, the Court of

Appeals denied his motion for rehearing en banc

The jurisdiction of this Court is invoked under 28

U.S.C. 1257(a) and (b).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions involved are:

U.S. Constitution: Amendment VI

In all criminal _ prosecutions, the

accused shall enjoy the right to a

y

speedy and public trial, by an impartial

jury of the State and district wherein

the crime shall have been committed,

which district shall have — been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the

Witnesses against him; to have

compulsory process’ for obtaining

witnesses in his favor, and to have the

Assistance of Counsel for his defense.

U.S. Constitution: Amendment XIV:

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its

jurisdiction the equal protection of the

laws.

The District of Columbia statute that is the

subject of this petition is

D.C. Code § 14-102(b):

A statement 1s not hearsay if the

declarant testifies at the trial or

hearing and is_ subject to cross

examination concerning the statement

and the statement is (1) inconsistent

with the declarant's testimony, and was

given under oath subject to the penalty

of perjury at a trial, hearing, or other

proceeding, or in a deposition, or (2)

consistent with the declarant's

testimony and is offered to rebut an

express or implied charge against the

witness of recent fabrication’ or

improper influence or motive, or (3) an

identification of a person made after

perceiving the person. Such _ prior

statements are substantive evidence

STATEMENT

Petitioner seeks review of the decision of the

Court of Appeals for the District of Columbia

affirming the trial court’s denial of his motion for

acquittal on first degree murder and assault with

intent to kill charges due to insufficiency of the

evidence. Review by this Court is necessary to give

much-needed attention to an issue of exceptional

importance: whether prior inconsistent statements

concerning the element of intent to commit first

4

degree murder can, standing alone, satisfy the

governments burden of proving guilt beyond a

reasonable doubt. In finding in the affirmative, the

court of appeals ignored this Court’s decision that

there is a difference between that which the

Constitution requires for the admission of such

statements and that which is needed to establish

their sufficiency. See California v. Green, 399 U.S.

149 (1970).

Here, Petitioner was convicted of first degree

murder and assault with intent to kill. The

government proved Petitioner’s supposed intent by

relying upon a statement that his ex-girlfriend gave

to police in which she stated that Petitioner came to

her house after the crime was committed and told

her about the crime. Specifically, she testified that

Petitioner came to her window one night and woke

her up. He told her that he had been in a fight at a

gas station and that a person had been shot and

killed. (02/06/07 Tr. at 256.) When asked if

Petitioner had told her how the person had been shot

or who shot the person, sHe stated that she did not

remember. (02/06/07 Tr. at 256.) The government

then read portions of her July 28, 2005, grand jury

testimony to the jury and used that grand jury

testimony as its primary substantive evidence. The

portions read included a partial transcript of a

statement she had given the police on July 14, 2005,

that she adopted in the grand jury proceeding,

including her statement to the police that:

[t]he night of the murder, my baby

father came to my house, | guess after

J

it happened, and he told me that him

and his friend, Red just shot somebody

at a gas station. And I asked him for

what? And he told me because he had a

beef with the boy and that someone told

him that the boy was going to get him

back. So before the boy could get him,

he took it into his own hands and then

shot him at the gas station. He told me

that they had — that they beat him up

they beat him up first, then that’s when

his friend handed him a gun and he

shot him and he handed the gun back

and he ran off

(02/06/07 Tr. at 260-261.)

The government asked her if that was the

only conversation she had with Petitioner about the

shooting. She stated, “That I recall, yes.” (02/06/07

Tr. at 262.) The government then read portions of

her grand jury testimony regarding an evening in

May 2005 when she was watching the local news and

saw a story about the shooting at the gas station in

which the news broadcast showed a picture of a blue

hat left at the scene. (02/06/07 Tr. at 263-65.) She

told the grand jury that Petitioner called her later

that evening to ask if she had seen the news

(02/06/07 Tr. at 265.) She claumed that she told him

she had seen it and that he stated that the hat the

police found on the scene was his. (02/06/07 Tr. at

265.)

6

On cross-examination, the witness again

stated that she could not remember what Petitioner

told her the night he visited her. (02/06/07 Tr. at

268-269.) She also stated that in July 2005, the

same month she talked to the police and testified

before the grand jury, she knew that Petitioner was

dating another woman and that he was not going to

ask the witness to marry him. (02/06/07 Tr. at 271.)

The witness’ statement to the police, her

grand jury testimony, and even her trial testimony,

because she claimed she could not remember the

events, were never subjected to cross-examination.

On appeal, Petitioner argued that the _ prior

inconsistent statement of a witness who no longer

has a memory of the events related to the statement

is insufficient evidence to sustain a conviction. The

government countered that under Bell v. United

States, 790 A.2d 523 (D.C. 2002), “there is nothing ...

that precludes a trier of fact from basing a verdict,

primarily or entirely, on a prior inconsistent

statement made under oath and admitted under

(D.C. Code §] 14-102(b)(1), and disregarding contrary

live testimony from the very same person who made

the statement.” The court of appeals also cited Bell

in its denial of Petitioner’s appeal. (App., infra, 8a.)

However, neither the government nor the court of

appeals focused on the issue which is before this

Court: whether it is sufficient to base a conviction on

an out of court statement made by a witness who no

longer remembers the incident and therefore cannot

be effectively cross-examined about it?

i

Petitioner properly raised this issue at trial

when he moved for a judgment of acquittal based on

insufficiency of the evidence (App., infra, 17a-18a.)

The trial court denied his motion. The issue was the

subject of Petitioner's appeal to the District of

Columbia Court of Appeals, which issued a written

opinion denying Petitioner's motion. (App., infra,

la-lla.) Petitioner moved for a rehearing en banc

and was denied. (App., infra, 15a-16a.)

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW IMPROPERLY

EXPANDS THE SCOPE OF THE RULE

REGARDING ADMISSIBILITY OF

PRIOR INCONSISTENT STATEMENTS

In 1975, the Federal Rules of Evidence were

revised to permit the use of prior inconsistent

statements as substantive evidence Fed. R. Ev

8O1(d)(1). In 1995, the Council of the District of

Columbia rewrote I).C. Code § 14-102(b) to also

permit the use of prior inconsistent statements as

substantive evidence. Johnson v. United States, 820

A.2d 551, 557 n.3 (D.C. 2003). When the Federal

Rules of Evidence were revised, legal scholars were

quick to observe that prior inconsistent statements

used as evidence, while admissible, would likely be

insufficient to support a conviction alone The

Senate Committee Report on the proposed rule

stated

it would appear that some of the

opposition to this Rule is based on a

concern that a person could — be

convicted solely upon evidence

admissible under this Rule. The Rule,

however, 1s not addressed to the

question of the sufficiency of evidence to

send a case to the jury, but merely as to

its admissibility. Factual

circumstances could well arise where, if

this were the sole evidence, dismissal

would be appropriate

S.Rep. No. 1277, 93d Cong., 2d Sess., reprinted in

1974 U.S. Code Cong. & Admin.News 7051, 7063 > n

21 (483-84). Likewise, in his treatise on the federal

rules, Judge Weinstein observed that

theoretically, a party may be able to

make out a prima facie case even if the

only evidence 1s a previous inconsistent

statement of this type In a

criminal prosecution, however, it 1s

unlikely that a prior inconsistent

statement alone will suffice to support a

conviction

4 J. Weinstein & M. Berger, Weinstein’s Evidence P

801 (d)(1)(A)[O1], at 141-42 (1995) (footnotes and

quotation marks omitted)

While a prior inconsistent statement may be

admissible as substantive evidence, the central

difficulty in basing a conviction entirely on an out-of-

court statement that is inconsistent with in-court

testimony is that the fact. finder may he falsely

J

persuaded by the presentation of the out-of-court

statement. This inherent danger 1s compounded

when that prior inconsistent statement is the only

evidence of one of the elements of the charges

avainst the accused and becomes the sole basis for

conviction. See Stanley Goldman, Guilt by Intuition:

The Insufficiency of Prior Inconsistent Statements to

Convict, 65 N.C.L. Rev. 1, 2 (1986). Further, the

jury may draw. negative inferences from the

recanting witness’ demeanor, failing to recognize

that his or her demeanor may have been just as poor

when the statements were first made. /d. Thus,

“the witness’ unsatisfactory trial demeanor . may

create an dllusion of unwarranted — reliability

associated with the earlier statement.” /d. at 22

See State v. Pierce, 906 S.W.2d 729, 735 (Ct. App

Miss. 1995)

The decision below 1s mistaken in several

fundamental respects First, the panel's

determination that prior inconsistent statements,

standing alone, are sufficient to prove guilt beyond a

reasonable doubt improperly expands the scope of

D.C. Code § 14-102(b). The statute addresses the

admissibility of prior inconsistent statements as

substantive evidence The court of appeals’

determination expands the scope of the statute by

finding that such statements are sufficient on their

own to provide a basis for conviction. The panel also

failed to address several important issues regarding

the use of prior inconsistent statements at

Petitioner's trial. While the court of appeals found

that there was’ evidence corroborating — the

inconsistent witness testimony, it failed to discuss

LO

how the corroborating evidence demonstrated that

Petitioner had the necessary intent to commit first

degree murder. Indeed, the corroborating evidence

failed to establish the element of intent. The prior

inconsistent statements were the sole evidence of

Petitioner's intent to commit first degree murder.

Further, the court of appeals determination

that it can base a verdict primarily or entirely on a

prior inconsistent statement improperly expands the

scope of the statute by finding that such prior

inconsistent statements are sufficient to provide the

sole basis for a conviction, without any meaningful

analysis of corroboration or reliability.

Il. THE DECISION BELOW CONFLICTS

WITH RULINGS OF THIS COURT, THE

SIXTH CIRCUIT AND THE HIGHEST

COURTS OF SEVERAL STATES

A. The Decision Conflicts With

Principles Established By This Court

In Caltfornia v. Green

In California v. Green, 399 U.S. 149, 164

(1970), this Court held that admitting a declarant's

out-of-court statements, as long as the declarant was

testifying as a witness and was subject to cross-

examination, did not violate the Sixth Amendment.

[In doing so, it cited Mattox v. United States, 156 U.S.

237, 242-243 (1895) for the general principle behind

the Confrontation Clause

The primary object of the constitutional

provision in question was to prevent

depositions or ex parte affidavits, such

as were sometimes admitted in civil

cases, being used against the prisoner

in lieu of a personal examination and

cross-examination of the witness in

which the accused has an opportunity,

not only of testing the recollection and

sifting the conscience of the witness,

but. of compelling him to stand face to

face with the jury in order that they

may look at him, and judge by his

demeanor upon the stand and _ the

manner in which he gives his testimony

whether he is worthy of belief

399 U.S. at 157-158. The Court held that there was

no Confrontation Clause violation as long as “the

declarant 1s testifying as a witness and subject to

full and effective cross-examination.” Jd. at 158. It

stressed the importance of confrontation by cross-

examination in) such circumstances, because it

“permits the jury that is to decide the defendant's

fate to observe the demeanor of the witness in

making his statement, thus aiding the jury in

assessing his credibility.” Jd. When the declarant

was unavailable to testify, the Confrontation Clause

was violated, as this Court noted in Douglas v.

Alabama, 380 U.S. 415 (1965). There the Court

reversed a conviction in which the prosecution read

into the record an alleged confession of the

defendant's supposed accomplice who refused to

testify on self-incrimination — grounds. The

12

confrontation problem arose precisely because the

supposed accomplice could not be cross-examined as

to his prior statement. 380 U.S. at 419-420.

Similarly, when a declarant cannot remember

anything about the prior statement, effective cross

examination is impossible. The instant situation is

in many ways analogous to Douglas in that the jury

could not judge whether the declarant, here

Petitioner’s ex-girlfriend, was telling the truth when

she gave her statement by judgin: her demeanor as

she described or explained away the differences in

her previous testimony. Instead, she did not say

anything about the events at all because she could

not remember them. Allowing the prior statement in

such circumstances impermissibly expands the

Court’s ruling in California v. Green. However,

even if such statements are admissible, they should

not, standing alone, be sufficient evidence to sustain

a conviction, as discussed next.

B. The Decision Below Creates A Direct

Conflict With Decisions Of Other

Courts

The decision of the District of Columbia Court

of Appeals conflicts with the U.S. Court of Appeals

for the Sixth Circuit, which has held that where

prior inconsistent statements are the

only source of support for the central

allegations of the charge, especially

when the statements barely, if at all,

meet the minimal requirements of

13

admissibility, we do not believe that a

substantial factual basis as to each

element of the crime providing support

for a conclusion of guilt beyond

reasonable doubt has been offered by

the Government.

United States v. Orrico, 599 F.2d 113, 118 (6th Cir.

1979). In Orrico, the Sixth Circuit evaluated

whether the government had presented sufficient

evidence to sustain a conviction for check fraud. The

only evidence that the accused had committed the

crime was a written statement by a bank employee

that was signed approximately one year after the

alleged crime took place, and some _ conflicting

testimony by another witness who also did not have

a complete memory of the events. Jd. at 115-116. At

trial, the bank employee could no longer remember

what. had occurred, so the government relied upon

her written statement as aé_epast_ recollection

recorded. ld.

The court recognized the prejudice to the

appellant in attempting to cross-examine a declarant

who professed no memory of the event:

Under these circumstances, while

Orrico may have’ been | physically

confronted with the witnesses against

him, cross-examination was, for all

practical purposes, impossible. He

could not probe Kennedy’s memory of

the meeting at Bosse’s office; she did

not remember it at all. He could not

14

challenge her identification of him as

the person who authorized her over the

phone to endorse the check; she could

not remember if she could recognize his

voice.

117. The Court noted that its

concern in this case focuses on the fact

that the central clement of the crime

with which the defendant was charged

was established entirely through the

use of out-of-court statements, made at

a time when the defendant had no

opportunity LO cross-examine the

witnesses as to the accuracy of their

accusations.

Turning to the sufficiency of the evidence in

Orrico, the Sixth Circuit stated that while it had a

“general hesitancy” to disturb a jury verdict, “there

must be substantial evidence as to each clement of

the offense from which a jury could find that the

accused is guilty beyond a reasonable doubt.” It

cited a previous Sixth Circuit opinion, United States

v. Green, as defining “substantial evidence” as “more

than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept to

support a conclusion. It is evidence affording a

substantial basis of fact from which the fact in issue

can be reasonably inferred.” Jd. at 117 (citing Green,

548 F.2d 1261, 1266 (6th Cir. 1977). Because the

15

prior inconsistent statements in Orrico constituted

the “sole evidence of a central element of the crime

charged,” the Sixth Circuit held that the government

failed to sustain its burden of proving guilt beyond a

reasonable doubt. /d. at 118.

Other courts have come to the same

conclusion. In State v. Moore, the Florida Supreme

Court noted that “the risk of convicting an innocent

accused is simply too great when the conviction is

based entirely on prior inconsistent statements.”

485 So. 2d 1279, 1281 (Fla. 1986). See also State v.

Green, 667 So. 2d 756 (Fla. 1995); R.T.L. v. State of

Florida, 746 So. 2d 871 (Fla. Dist. Ct. App. 2000).

Convictions were overturned in each case because

the prior inconsistent statement was the sole

evidence against the accused.

Likewise, in Commonwealth v. Sineiro, the

Massachusetts Supreme Court acknowledged that

“when the prior inconsistent grand jury testimony

concerns an essential element of the crime, the

Commonwealth must offer at least some additional

evidence on that element in order to support a

conclusion of guilt beyond a reasonable doubt.” 740

N.E. 2d. 602, 607 (Mass. 2000). It also recognized

that grand jury testimony especially requires a

degree of corroboration:

Grand jury testimony, while given

under oath, is given in secret, may

contain hearsay, is often done by way of

leading questions, and is not subject to

cross-examination. It is an

16

understandable concern, therefore, that

grand jury testimony admitted at trial

for substantive use be subject to a

certain level of corroboration before a

conviction can be based on it.

Id. at 609. In doing so, it echoed the holding in

Orrico.

Similarly, in State v. Robar, 157 Vt. 387, 601

A.2d 1376 (Vt. 1991), the Vermont Supreme Court

reversed a burglary conviction because it found that

the prior statement was not sufficiently reliable to

support conviction even though made under oath

The Alaska Supreme Court came to a similar

conclusion in Brower v. State, 728 P.2d 645, 648

(Alaska 1986), in which it held that’ prior

inconsistent grand jury testimony, which was

inadequately corroborated, was insufficient evidence

to sustain a conviction.

Here, the Court of Appeals distinguished

Orrico by stating that there was physical evidence

that corroborated the _ ex-girlfriend’s statement

(App., infra, 7a-8a.) It stated:

In this case, the government’s evidence

against [Petitioner] consisted of witness

testimony that he initiated the fight

and that he admitted shooting [the

victim] because he believed “the boy

was going to get him back” as a result of

a beef; DNA from the baseball cap;

17

surveillance video tape; and expert

(ballistics) testimony.

Id. However, the only one of those pieces of evidence

that demonstrated the supposed intent to kill was

the statement made by the ex-girlfriend to the police,

which she could no longer remember at trial and

which is the subject of this petition. The Court of

Appeals failed to address how the other evidence

showed Petitioner's intent to commit murder. The

DNA evidence merely places Petiticner at the scene,

something that has never been disputed. The

surveillance footage shows that there was an

altercation between Petitioner, the victim, and an

unknown man wearing camouflage clothing. Again,

this evidence in no way establishes Petitioner's

intent to commit murder. If anything, it shows that

Petitioner was pushed away from the decedent by

the actual killer, the man in camouflage. (Appellate

App. P/Q 23:36:31-33.) Finally, the ballistic evidence

simply establishes that the gun used to commit the

murder was likely the same make and model as the

silver gun that the man in camouflage was seen

holding on the video surveillance footage. (02/07/07

Tr. at 399-401, 403, 407-11.) The ballistic evidence

also establishes that a magazine fell out of a gun

that was likely the same make and model as the

black gun held by Petitioner — a gun that was not

used to commit the murder. (02/07/07 Tr. at 399-

401, 403, 407-11.) However, like the DNA and

surveillance footage, the ballistic evidence in no way

shows that Petitioner intended to commit murder

Thus, Petitioner respectfully submits that the

panel’s conclusion that the corroborating evidence

|e.

was sufficient for a jury to find that Petitioner was

guilty of murder beyond a reasonable doubt is

misplaced

CONCLUSION

For the reasons stated, the Court should grant

the petition

Respectfully submitted,

ROBERT L. ZISK

Counsel of Record

ERIC L. YAFFE

Gray, Plant, Mooty, Mooty &

Bennett, PA

2600 Virginia Avenue, N.V

Suite 1111

Telephone: (202) 295-2200

robert.zisk@gpmlaw.com

January 4, 2011] {ttorneys for Petitione?

la

INDEX TO APPENDIX

Appendix A

Memorandum Opinion and Judgment of

the District of Columbia Court of Appeals

(Aug. 5, 2010)...

Appendix B

Judgment in a Criminal Case of the

Superior Court for the District of

—

Columbia (April 27, 2007)

Appendix C -

Order of the District of Columbia Court of Appeals

Denying Motion for a Rehearing En Ban

(Oct. 6, 2010)

Appendix D

Defendant's Motion for Judgment

of Acquittal (Feb. 7, 2007)

la

APPENDIX A

[Filed Aug. 5, 2010]

DISTRICT OF COLUMBIA COURT OF APPEALS

il from the Superior Court of t

Columbia Criminal Division

Christian, Trial Judge)

2010 Decided August

1) and KRAMER, Associate Judge

SCHWELB, Sentor Judge

MEMORANDUM OPINION AND JUDGMENT

-URIAM \ jury convicted appellant

Reed f premeditated first-degree

armed,! assault with intent to kill

irmed (‘AWIKA’)* and two count of

n of firearm during the commission

ia

crime of violence (“PFCV”).* Discerning no error, we

affirm the judgment of the trial court.

FACTUAL SUMMARY

The government presented evidence showing

the following events. At the Lowest Price gas

station, in the Southeast quadrant of the District of

Columbia, Alade Ganiyu was working in _ the

cashier’s booth. Mr. Ganiyu sold Dewayne James a

cigar and soon after, Mr. Reed approached Mr.

James. The two men began to fight and dragged

each other onto the ground near the gas pumps. Mr.

Ganiyu witnessed the altercation from inside his

booth as he talked on the telephone. He then heard

two gunshots and looked out of the booth’s window to

see Mr. James on the ground, and Mr. Reed and

another man who was dressed in camouflage. Mr.

Reed and the camouflaged man ran off in different

directions.

Four security cameras at the gas station

recorded the incident, but not the actual shooting.

On the surveillance video Mr. Reed follows Mr.

James to the cashier’s booth and then a fight ensues.

Mr. Reed is holding a black gun while he straddles

Mr. James as the two men wrestle on the ground

near the gas pumps. The camouflaged man walks

toward Mr. Reed and Mr. James with a silver gun in

his hand and seems to help Mr. Reed but Mr. Reed

stumbles backward. There is an inexphicable

eighteen-second camera malfunction and the next

3 In violation of D.C. Code §§ 22-4502 :b)

3a

image is of Mr. James lying motionless on the

pavement.

After the shooting, Mr. Reed went to his then-

girlfriend and soon-to-be mother of his child’s house

and knocked on the bedroom window. According to

her (Leticia Bryant), Mr. Reed said he and his

friend, Red, “just shot somebody at a gas station.”

She asked him for what and he told her, “because he

had a beef with the boy and that someone told him

that the boy was going to get him back. So before

the boy could get him, he took it into his own hands

and then shot him at the gas station.” They first

beat him up, then his friend, Red, handed him a gun

and he shot him, then he handed the gun back, and

ran away. Subsequently, footage from the gas

station appeared on television. Soon after, Mr. Reed

telephoned Ms. Bryant to ask whether she saw him

on the news.

The police recovered two shell casings and a

loaded magazine from the ground at the gas station,

and two bullets from Mr. James’ clothing. According

to ballistics expert Jonathan Pope, the shell casings

and the bullets were discharged from a .38 caliber

semiautomatic pistol, although, he could not

determine if the casings and bullets were discharged

from the same gun. Mr. Pope also testified that the

magazine was consistent with a .22 caliber Ruger

semiautomatic pistol. On a Ruger pistol, a minimal

amount of pressure on the magazine-release button

dislodges the magazine and the gun will not fire.

The police recovered from the scene a blue baseball

cap containing DNA for which Mr. Reed “[could] not

be excluded as a potential contributor.”

4a

ANALYSIS

Sufficiency of the Evidence

Mr. Reed contends that the government's

evidence was insufficient to find him guilty beyond a

reasonable doubt. Specifically, he argues that key

witness testimony (Mr. Ganiyu’s prior grand jury

testimony and Ms. Bryant's prior police statement)

was contradictory and uncorroborated; — the

surveillance video provided reasonable doubt; and

the evidence did not show the requisite mens rea.

We conclude that the evidence was sufficient to

convict Mr. Reed of the charged crimes beyond a

reasonable doubt.

In reviewing a claim challenging the

sufficiency of the evidence, we must

‘view the evidence in the lght most

favorable to the government, giving

deference to the fact finder’s right to

weigh the evidence, determine the

credibility of the witnesses, and draw

inferences from the evidence presented.

We can only reverse a conviction on this

sround if there is no evidence upon

which a reasonable mind could infer

guilt beyond a reasonable doubt.’

Mitchell v. United States, 985 A.2d 1125, 1133-34

(D.C. 2009); McCullough v. United States, 827 A.2d

48, 57 (D.C. 20038) (quoting Patton v. United States,

633 A.2d 800, 820 (D.C. 1993). When reviewing for

sufficiency, there is “no distinction between direct

and circumstantial evidence.” Busey v. United

—

aa

States, 747 A.2d 1153, 1160 (D.C. 2000) (citing Curry

v. United States, 520 A.2d 255,263 (D.C. 1987).

In a prosecution for premeditated murder, the

government must prove all of the elements of the

offense, whether the defendant is charged as a

principal or as an aider or abettor. Wilson-Bey v.

United States, 903 A.2d 818, 822 (D.C. 2006). The

elements for premeditated murder — include:

premeditation, deliberation, and intent to kill. Id.

“To prove premeditation, the government must show

that a defendant, before acting, gave thought to the

idea of taking a human life and reached a definite

decision to kill, while deliberation is proved by

demonstrating that the accused acted with

consideration and reflection upon the preconceived

design to kill.” Fortson v. United States, 979 A.2d

643, 656 (D.C. 2009) (quoting McAdoo v. United

States, 515 A.2d 412,427 (D.C. 1986). “Both

premeditation and deliberation may be inferred from

the surrounding facts and circumstances, and may

occur 1n only a few seconds.” Jd. (quoting Downing v.

United States, 929 A.2d 848, 862 (D.C. 2007».

Here, Mr. Reed takes issue, not with the

evidence itself, but with the inferences the jury chose

to draw from it. His position however, ignores the

fact that drawing reasonable inferences is within the

province of the jury. Mitchell, supra, 985 A.2d at

1133-34. Although there was an_ unexplainable

camera malfunction that did not directly show Mr.

Reed shooting Mr. James, the jury could reasonably

infer from the evidence presented that he fired one of

the fatal shots with the requisite intent. Mr. Reed

did not dispute that he is the man beating Mr.

6a

James in the video. Based on the video footage, it is

evident that Mr. Reed beat Mr. James and then a

man in camouflage ran over to the fight with a silver

gun in his hand. Eighteen seconds later, the video

shows Mr. James lying still and alone in the lot.

Moreover, after the shooting, Mr. Reed told Ms.

Bryant that he and his friend “shot somebody at a

gas station.”

Based on this evidence, the jury could

rationally infer that Mr. Reed “gave thought to the

idea of taking [Mr. James’] life and reached a

definite decision to kill,” and that he thus “acted

with consideration and_ reflection upon the

preconceived design to kill.” Fortson v. United

States, 979 A.2d 643, 656 (D.C. 2009). In addition,

“carrying a gun to the scene of the murder is ‘highly

probative of premeditation and deliberation’ because

it suggests that the defendant arrived on the scene

with a preconceived plan to kill.”. Busey, 747 A.2d at.

1161 (quoting Frendak v. United States, 408 A.2d

364, 371 (D.C. 1979)). The video footage depicted

Mr. Reed holding a black gun while he fought with

Mr. James. This footage suggests that Mr. Reed

brought the gun to shoot Mr. James. The video

footage also showed the camouflaged man carrying a

silver gun, however, this does not refute the fact that

Mr. James possessed the black gun prior to the

camouflaged man’s arrival and had a “preconceived

plan to kill.” Busey, 747 A.2d at 1161. Based on this

evidence, “a reasonable mind could infer guilt

beyond a reasonable doubt.” Mitchell, 985 A.2d at

1134.

4a

Mr. Reed’s attack on prior out-of-court

statements by Mr. Ganiyu and Ms. Bryant is

unpersuasive. He argues that a prior statement by

Mr. Ganiyu was inconsistent with his trial

statement concerning the person he saw fleeing from

the scene and the color of the gun that this person

carried. Additionally, he contends that Ms. Bryant

never adopted her police statement at trial and had

an obvious motive to he when she appeared before

the grand jury, that is, she was a jilted ex-girlfriend

‘vho had just given birth to Mr. Reed’s child and she

knew that he was dating another woman. Of course,

the jury had the right to assess the credibility of Mr.

Gantiyu and Ms. Bryant and to weigh that evidence.

Mitchell, supra, 985 A.2d at 1133-34.

Furthermore, although Mr. Reed recognizes

that the prior out-of-court statements of Mr. Ganiyu

and Ms. Bryant could be admitted properly under

D.C. Code § 14-102(b)(1), he nevertheless asserts

that “there is no corroboration for either [Ms.]

Bryant’s or [Mr.] Ganiyu’s. prior inconsistent

statements, [and that he] should not have been

convicted based solely on these statements.” First,

as previously discussed, the video corroborated Ms.

Bryant's prior statement in several aspects. Second,

Mr. Reed’s reliance on the Sixth Circuit’s United

States v. Orrico, 599 F.2d 113 (6th Cir. 1979), is

unavailing. That case is distinguishable from this

one. Orrico involved a prosecution for an elaborate

financial scheme to illegally “improve position on

paper without actually investing any capital.” ld. at

115. The only evidence linking the defendant to the

crime consisted of “one sentence” in a statement.

drafted one year after the alleged crime and grand

Sa

jury testimony used for impeachment. /d. at 116.

Reviewing for sufficiency, the court held that “when

such evidence is the only source of support for the

central allegations of the charge . . . we do not

believe .. . a conclusion of guilt beyond reasonable

doubt has been offered by the government.” Jd. at

118. In this case, the government's evidence against

Mr. Reed consisted of witness testimony that he

initiated the fight and that he admitted shooting Mr.

James because he believed “the boy was going to get

him back” as a result of a Leef; DNA from the

baseball cap; surveillance videotape; and expert

(ballistics) testimony. Similar additional evidence

was not presented in Orrico. Moreover, as the

government points out, our decision in Bell v. United

States, 790 A.2d 523 (D.C. 2002), specifically states

that “there is nothing .. . that precludes a trier of

fact from basing a verdict, primarily or entirely, on a

prior inconsistent statement made under oath and

admitted under [D.C. Code §] 14-102 (b)(l), and

disregarding contrary live testimony from the very

same person who made the statement.” Jd. at 530-

3l.

The Video Equipment Issue

Mr. Reed contends that he was “substantially

prejudiced” after the jury retired for its deliberation

and the trial court rejected his counsel’s request

“that the jury be given the equipment to review the

[security camera] videos as soon as possible.” The

record does not indicate whether the trial judge

advised the jury about obtaining the video

equipment or whether Mr. Reed’s counsel followed

up on the issue. What the record does reflect is that

9a

the judge, on two separate occasions prior to Mr.

Reed’s request, instructed the jury that they could

send him a note via the clerk if they needed to

communicate with him about any matter. Mr.

Reed’s request occurred after the jury had been

excused for deliberation and the record does not

indicate whether they were actually given the

instruction. Additionally, the jury was excused for

deliberation at 2:47 p.m. on Thursday, February 8th,

2007 and they had reached a verdict by 2:35 p.m.

Friday, February 9th, 2007. “Mr. Reed now asserts

that there was prejudice, and hence reversible error,

because the Court did not explicitly give the jury

unfettered access to the video equipment and/or

failed to advise that the equipment be available upon

request.

This Court will not reverse if it is able to “say,

with fair assurance, after pondering all that

happened without stripping the erroneous action

from the whole, that the judgment was _ not

substantially swayed by the error.” Edwards uv.

United States, 785 A.2d 292,294 (D.C. 2001) (quoting

Dallago v. United States, 427 F.2d 546, 560 (D.C.

Cir. 1969) (quoting Kotteakos v. United States, 328

U.S. 750, 765 (1946)). When an appellant fails to

raise an issue in the trial court, he must meet the

plain error standard on appeal. In other words,

“luJnder the plain error standard, the error must be

(1) ‘obvious or readily apparent, and ‘clear under

current law’; and (2) ‘so clearly prejudicial to

substantial rights as to jeopardize the very fairness

and integrity of the trial.” Coates v. United States,

705 A.2d 1100, 1104 (D.C. 1998) (quoting Hasty v.

United States, 669 A.2d 127, 134 (D.C. 1995))

10a

(citations omitted); see United States v. Olano, 507

U.S. 725, 732 (1993).

Mr. Reed’s argument fails to show any trial

court error or abuse of discretion. The trial judge’s

decision not to keep the video equipment in the jury

room was “rational and informed” and “within the

range of permissible alternatives.” Johnson ov.

United States, 398 A.2d 354,365 (D.C. 1979). Given

the very large number of trial court judges and

magistrate judges who must share video equipment

between multiple court rooms, the decision not to

send the equipment to the deliberation room until

the need arose contributed to the efficiency of the

trial court. Even assuming arguendo that the trial

court erred or abused its discretion, we are satisfied

that Mr. Reed would not be able to demonstrate that

the error or abuse of discretion seriously affected his

substantial rights, or “seriously affected the fairness,

integrity or public reputation of the proceedings’

against him. Williams v. United States, 858 A.2d

984, 998 (D.C. 2004). The jury saw the entire video

at least two different times and Mr. Reed’s counsel

played certain portions of the video repeatedly for

the jury. If the jurors wanted to see the video they

could have sent a note to the judge via the clerk.

Accordingly, for the foregoing reasons, we

affirm the trial court’s decision.

So ordered.

ENTERED BY DIRECTION OF

THE COURT:

/s/ Joy A. Chapper

lla

JOY CHAPPER

Acting Clerk of the Court

Copies to:

Han. Erik P. Christian

Eric L. Yaffe, F'sq.

2600 Virginia Avenue, N.W., #1111

Washington, D.C. 20037

Elizabeth Trosman, Esq.

Assistant U.S. Attorney

l2a

APPENDIX B

SUPERIOR COURT FOR THE DISTRICT OF

COLUMBIA

United States of JUDGMENT IN A

America CRIMINAL CASE

V.

Case Number: 2005

KEL 4054

ANTONIO DUPRE PDID No. 465-943

REED

THE DEFENDANT:

[] ENTERED A PLEA OF GUILTY TO

COUNT(S)

WAS FOUND GUILTY ON COUNT(S) 1, 2. 3

and 4

AFTER A PLEA OF NOT GUILTY.

Count Nature of Title & Date of

Charges Section Offense

Count ] Murder ] 22 DC 05/02/05

While 2101.4502

Armed

Count 2 Assault 22 DC 401- 05/02/05

With 4502

Intent to

Kill While

Armed

l3a

Count 3 Possession 22 DC

of Firearm 4504 (b)

During

Crime of

Violence

Count 4 Possession 22 DC 05/02/05

of Firearm 4504 (b)

During

Crime of

Violence

SENTENCE OF THE COURT

As to count “1” (600) six hundred months followed by

(5) five years of supervised release.

As to count “2” (180) one hundred and eighty months

followed by (5) five years of supervised release to

run concurrent count “1” As to count “3” (72) severity

two months followed by (3) three years of supervised

release to run consecutive to count “1” As to count

“4” (72) seventy two months followed by (3) three

years of supervised release to consecutive to count

‘cy?

hu

APPEAL RIGHTS GIVEN

The defendant is hereby committed to the

custody of the Attorney General to be imprisoned

for a total term of 744 months __ _

[| |] MANDATORY MINIMUM term of

applies

l4a

[<x] Upon releas from imprisonment the

defendant shall be on supervised release for a

term of 5 years

Sg The Court makes the following

recommendations to the Bureau of Prisons

Costs in the aggregate amount of $400.00

have been assessed under the Victims of Violent

ee . . . ]

Crime Compensation Act of 1996, and | | hav

[><] have not been paid

April 27, 2007 /s/ Erik P. Christian

Date Judge

Krik Y Christian

Associate Judge

Name and Title

Judicial Officer

Certification by Clerk

pursuant to Criminal]

Rule 32(d)

April 27, 2007 Sandra Bennett-Cave

Date Deputy Clerk

04/27/2007 5:20:24 PM

APPENDIX

[Filed Oct. 6, 2010]

District of Columbi:

Court of Appeal

ANTONIO REED

A 1]

ippeuant

BEFORE Washington, Chief Judge: Ruiz, Reid

Glickman, Kramer, *Fisher, Blackburne-Rigsby

Thompson, and Oberly, Associate Judges

ORDER

On consideration of appellant’s petition for

rehearing en bane; and it appearing that no judge of

this court has called for a vote on the petition for

rehearing en bane, it is

ORDERED that the petition for rehearing en

bane 1s denied

PER CURIAM

* Judge Fisher is recused from this casi

loa

Copi S ]

Honorable Erik P. Christian

Eric L. Yaffe, Esquire

Gray, Plant, Mooty, Mooty & Bennett, P.A

2600 Virginia Avenue, NW

Suite 111]

Washington, DC 20037

Elizabeth Trosman, Esquire

Assistant United States Attorney

| la

APPENDIX D

[Filed Feb. 9, 2007]

In The

SUPERIOR COURT FOR THE DISTRICT OF

COLUMBIA

Criminal Division

UNITED STATES OF

AMERICA

2005 Fel 4054

vs In-Trial: 2/9/07

J. “nik Christian

ANTONIO DUPRE REED

DEFENDANT’ MOTION FOR JUDGMENT OF

ACQUITTAL

COMES NOW Antonio Dupree Reed by and through

undersigned counsel respectfully to move this

Honorable Court for a judgment of acquittal on each

and every charged offense. In support of this motion

counsel submits the following

l The record

Mr. Reed requests a hearing

lSa

Respectfully submitted

Sara Kopecki

Sara E. Kopecki #436304

619 Morris Place. N_.E

Washington, D.C. 20002

202-543-2113

\ittorney for Mr. Reed

Certificate of Service

The undersigned certifies that a true and correct

copy of the foregoing was sent by facsimile (202-305

1577) to Assistant U.S. Attorney Michelle Jackson of

the U.S. Attorney’s Office, 555 Fourth Street, N.W

Washington, D.C. 20530 this 8t* day of February

2007

Sara E. Kopecki