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Washington v. United States5/19/2005
Argued June 23, 2003
Before WAGNER, Chief Judge, and GLICKMAN, Associate Judge, and STEADMAN, Senior Judge.
Appellant, Vonn Washington, was charged with one count of first-degree premeditated murder (D.C. Code §§ 22-2401, -3202 (1996)), two counts of assault with intent to kill while armed (AWIKWA) (D.C. Code §§ 22-501, -3202 (1996), three counts of possession of a firearm during a crime of violence (PFCV) (D.C. Code § 22-3404 (b) (1996), and one count of carrying a pistol without a license (CPWL) (D.C. Code § 22-3404 (a) (1996)). Following a jury trial, appellant was found not guilty of premeditated murder and AWIKWA, but convicted, respectively, of the lesser-included offenses of involuntary manslaughter while armed and assault with a deadly weapon (ADW). He was also convicted of CPWL and all three counts of PFCV. He argues for reversal on the grounds of: (1) improper and prejudicial prosecutorial argument; (2) exclusion from evidence of a learned treatise; and (3) conviction of CPWL, which he contends is unconstitutional under the Second and Fifth Amendments. Appellant also argues, and the government concedes, that his three PFCV convictions merge. Finding no reversible error related to appellant's first three arguments, we affirm the convictions, and we remand to the trial court with instructions to vacate two of the PFCV convictions.
I.
A. Factual Background
The government presented evidence showing that on July 10, 1996, appellant, intending to shoot Kevin Jackson, shot and killed his best friend, Kenneth Anderson. At about this time, there were two rival groups in the area of Wayne Place, Southeast, and the shooting arose out of a feud between them. Kevin Jackson testified that he associated with a group which included Antonio West and his friends, Aaron and "Poo." Appellant and Anderson were a part of another group. Jackson testified that about a week before Anderson was killed, he was in the area with West, Aaron, Poo and Shawn when shots were fired. Poo and Aaron returned the fire, and Aaron was hit in the leg. Jackson said that his car was torched after the shooting on Wayne Place.
According to Jackson, the night that Anderson was killed, Jackson was at home with his little brother, Poo, Antonio, and others. He went outside to meet a friend, Mike Ko, who parked his Land Cruiser right in front of Jackson's house. Jackson entered the vehicle, and while they were talking, Anderson drove up in a white automobile. Appellant was in the front passenger seat. Jackson testified that he saw Anderson and appellant raising their pistols, heard gunshots, ducked and started firing back. Jackson said that the vehicles were only a couple of feet apart and facing in the opposite directions. Jackson testified that he fired his .38 revolver basically out of the window, but Ko, who also had a weapon, did not fire at all. Jackson said that he did not shoot downward because he was firing over Ko's back, and he was afraid of hitting him. Jackson further testified that the Land Cruiser was taller than the car in which Anderson and appellant were sitting, with the top of the smaller car's roof reaching only up to the mirror of the Land Cruiser. The Land Cruiser's driver's side window and front passenger side window were shattered. Jackson said that glass from the vehicle went into his eyes, causing him to believe that he had been shot. After emptying his five-shooter revolver, Jackson and Ko jumped out of the car, ran around the corner, and hid behind a building. According to Jackson, Anderson's car drifted off slowly. Frightened, Jackson and Ko ran back to the house and told the people there that Anderson and appellant had tried to kill them. Jackson
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