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Spencer v. United States

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Argued January 22, 2008

Before RUIZ and GLICKMAN, Associate Judges, and FERREN, Senior Judge.

Appellant, Jermaine S. Spencer, was convicted of assault with a dangerous weapon (“ADW”),*fn1 possession of a firearm during a crime of violence (“PFCV”),*fn2 and carrying a pistol without a license (“CPWL”),*fn3 all in connection with the shooting death of Anthony Gabriel.*fn4 On appeal, he argues that the trial court erred by (1) failing to properly instruct the jury that it must find that appellant had the same intent required of the principal actor in order to be convicted on an aiding and abetting theory; (2) not allowing defense counsel to respond to the aiding and abetting argument that, he claims, the prosecutor made for the first time in its rebuttal; and (3) refusing the jury’s request to see the impeaching grand jury testimony of a key witness. We conclude that the aiding and abetting instruction given was erroneous, but did not constitute plain error; that exclusion of the grand jury testimony also was error, but harmless; and that the trial court did not abuse its discretion in denying appellant’s request for additional argument. Accordingly, we affirm.

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