# Petition for Writ of Certiorari — Reed v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1222

## Text

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

[<] 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0813%3A1. Public record. Not legal advice.