Appeal from the Superior Court of the District of Columbia; Hon. Reggie B. Walton, Trial Judge
Rogers, Chief Judge. Ferren, Associate Judge, and Belson, Associate Judge, Retired.*
The opinion of the court was delivered by: Ferren
An indictment jointly charged appellant Ingram and co-defendant Morgan with offenses attributable to the armed robbery of a Georgetown video arcade on May 9, 1988. After a jury trial in August 1989, appellant was convicted of armed robbery, D.C. Code §§ 22-2901, -3202 (1989), and was sentenced to prison for fifteen years to life. On appeal, he argues (1) the trial Judge committed reversible error in failing to sever the defendants' trials because their defenses were irreconcilable and there was a danger the jury would unjustifiably infer from this conflict alone that appellant was guilty; (2) the jury instructions on armed robbery improperly permitted conviction for aiding and abetting the armed offense even if the jury believed appellant was only aware of an unarmed robbery; and (3) appellant's constitutional right to a grand jury indictment was violated when the government altered its theory of aiding and abetting after both sides had rested. Finding no error, we affirm.
According to the government's evidence, shortly after 10:00 a.m. on Monday, May 9, 1988, an armed man, later identified as Morgan, entered the back office of a video arcade moments before a Brinks armored truck was scheduled to collect the week-end proceeds. He asked, "Where is the money at?," and struck the manager four times on the head with a gun, drawing blood, before taking $4,500 in presorted bills. As Morgan was leaving, a customer gave chase and saw him get into the passenger side of a Volkswagen with Maryland tag "SES 299." Morgan was carrying a blue athletic bag. Another black male was driving the car.
Police investigation led two Metropolitan Police Department detectives to the golf course where Morgan, the owner of the Volkswagen bearing Maryland tag "SES 299," was employed. Morgan had punched into work at 10:32 a.m., about four hours later than normal and about 20 minutes after the robbery. Morgan told the detectives that he had received a ride to work from a friend, Thomas Clark. Morgan was arrested.
As the detectives were driving Morgan to the police station around 3 p.m., they noticed a Volkswagen with Maryland tag "SES 299" approaching from the opposite direction. On seeing the car, Morgan lunged toward the window. The detectives (in an unmarked car) turned around, followed the Volkswagen to a nearby 7-11 store, and watched as appellant Ingram emerged from the driver's side.
As the police walked past the car, they noticed an empty pistol holster containing six bullets partially visible on the car floor. Appellant was immediately arrested and searched. The search revealed a badge identifying appellant as an employee of the video arcade robbed that morning. A search of the car's trunk produced a zipped blue cloth bag containing a loaded revolver and $700 in cash. The revolver -- which had blood on it later found consistent with the blood type of the arcade's manager -- was later identified as the robbery weapon. The money was identified as some of the money stolen from the arcade that morning. On the passenger seat underneath appellant's jacket was a deposit slip showing that appellant had deposited $1,700 in his credit union that day at 12:32 p.m. The money, some of which was retrieved from the credit union, was identified as proceeds from the robbery. The teller testified that appellant had deposited a packet containing 50 twenty dollar bills wrapped in a blue wrapper and 700 one dollar bills wrapped in yellow straps of one hundred bills apiece.
Thomas Clark, whom Morgan had implicated in the crime, testified as a government witness. He admitted he was a friend of Morgan and knew appellant, admitted he knew Morgan had named him as the person who had driven him to work on May 9th, and admitted to being on parole until 1998. Clark testified, however, that he had been at home the morning of May 9th and had neither seen the co-defendants nor driven Morgan's car that morning. Clark was impeached with a 1983 conviction for armed robbery. Clark's father supported his son's alibi.
Appellant testified and also denied any involvement in the robbery, explaining he had innocently driven the getaway car and had unknowingly come into possession of the robbery proceeds. He testified that he had stayed with his brother at his mother's home the morning of May 9th until Thomas Clark arrived to drop off Morgan's car at approximately 11:30 a.m. According to appellant, after Clark had driven Morgan to work, Clark drove to appellant's mother's home, where he handed appellant an envelope containing $1,700 (50 twenty dollar bills and 700 ones in wrappers), and said: "This is from Bobby ." Appellant further testified that he was not surprised to see so much money in small denominations because he "had often seen Bobby with a lot of money in small bills" and the wrappers "were just regular money wrappers." Appellant then drove Clark in Morgan's car to the subway, drove to the credit union to meet his sister and to deposit the money, and drove to an auto parts shop to purchase parts for his own car.
Appellant explained he had approached Morgan, one of his best friends, for a loan in March and again in April to help him attend carpentry school in July because Morgan always had "a lot of money." Also, because his car was in the repair shop, appellant had asked Morgan if he could borrow Morgan's car to pick up repair parts. On the night before the robbery, Morgan phoned appellant while appellant was working at the arcade. He told appellant that he had the money ready for him and that appellant could borrow his car the next morning. Morgan promised to bring his car over as soon as he had taken his wife to the hospital on Monday morning. Although appellant admitted telling Morgan about his job at the arcade, he denied telling Morgan any specifics about where the money was kept or when the armored car came to pick up deposits. Appellant was impeached by 1984 and 1985 convictions for theft, a 1984 conviction for malicious destruction of property, and a 1985 conviction for storehouse breaking and entering. Appellant's brother and sister, as well as an employee at the auto repair shop, testified in support of appellant's alibi defense. Appellant's defense was further corroborated when a detective found auto parts inside the Volkswagen's trunk when appellant was arrested.
Codefendant Morgan also testified. He denied any involvement in the robbery, denied lending appellant any money, denied discussing appellant's job with him, and denied sending Clark to appellant's mother's home with Morgan's car on the morning of the robbery. He argued misidentification and testified that the night before the robbery he had left his car at a subway station so that appellant could use it to pick up some auto parts. Morgan claimed Thomas Clark had driven him home from the subway in Morgan's second car. Morgan also explained that he had been late to work on Monday because he had had to take his wife to a hospital clinic (there were no records introduced in evidence showing that he or his wife had signed in), and that Clark had given him a ride to work that morning in Morgan's second car. Morgan admitted on direct examination that he had been convicted of armed robbery in 1982.
In closing argument, appellant's attorney argued that Morgan had robbed the arcade with Clark as the getaway driver and that Clark had taken a $2,000 cut while Morgan took a $2,500 share and gave $1,700 of it to appellant as a loan.
Appellant contends the trial court erred in denying his motions for severance based on the defendants' conflicting and irreconcilable defenses. Because appellant moved to sever before trial and three times during trial, we review for abuse of discretion. See Garris v. United States, 559 A.2d 323, 329 (D.C. 1989).
When two defendants are charged with jointly committing a criminal offense, there is a strong presumption that they will be tried together. See Super. Ct. Crim. R. 8 (b); *fn1 Tillman v. United States, 519 A.2d 166, 169 (D.C. 1986). To avoid prejudice, however, properly joined defendants may request a severance at any time under Super. Ct. Crim. R. 14. *fn2 Ready v. United States, 445 A.2d 982, 985-86 (D.C. 1982), cert. denied, 460 U.S. 1025, 103 S. Ct. 1279, 75 L. Ed. 2d 498 (1983).
Unfair prejudice does not arise merely because defendants are mutually hostile and attempt to blame each other. See Sweet v. United States, 438 A.2d 447, 451 (D.C. 1981). Rather, severance is required only when a defendant shows that (1) a "'clear and substantial contradiction between the respective defenses' causes inherent irreconcilability between them," Tillman, 519 A.2d at 170 (citing Williams v. United States, 382 A.2d 1, 8 (D.C. 1978)), and (2) that the irreconcilability creates "a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." Rhone v. United States, 125 U.S. App. D.C. 47, 48, 365 F.2d 980, 981 (1966). "Stated another way, the task of the court is in assessing the risk of the jury's being misled into finding guilt from the existence of the conflicting defenses alone." Johnson v. United States, 398 A.2d 354, 368 n.11 (D.C. 1979) (emphasis in original). The degree of such risk is measured by assessing the evidence offered against the defendant, independent of the conflicting evidence presented by the codefendant. See Garris, 559 A.2d at 329. The prejudice resulting from irreconcilable defenses is overcome if
there would be available at trial enough independent evidence of appellant's guilt -- beyond that required for the government to survive a motion for judgment of acquittal -- so that the court reasonably could find, with substantial certainty, that the conflict in defenses alone would not sway the jury to find appellant guilty.
Tillman, 519 A.2d at 170 (quoting Ready, 445 A.2d at 987); see also Reynolds v. United States, 587 A.2d 1080, 1082 (D.C. 1991); Garris, 559 A.2d at 329-30. Applying these principles, we conclude that although appellant and Morgan did present irreconcilable defenses, the independent evidence of appellant's guilt was sufficient to dispel any prejudice.
As the government concedes, Morgan's testimony contradicted the crux of appellant's defense: appellant's explanation of why and how he had the money and Morgan's car. Appellant testified that he had innocently received the robbery proceeds as a loan from Morgan and had not been driving Morgan's car on the morning of the robbery. Morgan, however, denied lending money to appellant and claimed that he had sent his car to appellant the night before the robbery. These defenses are in "clear and substantial contradiction" and cannot be reconciled because it would be impossible for a jury to accept both defenses at the same time. See Ready, 445 A.2d at 986.
Nonetheless, the independent circumstantial evidence of appellant's participation in the armed robbery was "powerful," Mitchell v. United States, 569 A.2d 177, 182 (D.C.), cert. denied, 112 L. Ed. 2d 532, 111 S. Ct. 521 (1990), and was more than sufficient to assure that the jury did not convict him on the basis of the conflicting testimony alone. Appellant was accused of aiding and abetting the armed robbery by driving the getaway car or planning the robbery or both. *fn3 Here, the evidence of appellant's role in the robbery -- evidence independent of Morgan's testimony and admissible at a trial of appellant alone -- showed: (1) appellant worked at the arcade that was robbed; (2) appellant testified that Morgan and he were close friends; (3) appellant knew that a Brinks truck came to the arcade on Monday mornings to pick up the weekend's proceeds; (4) when the robber came to the arcade's back office, he demanded, "Where is the money at?"; (5) a black male other than Morgan was driving the getaway car; (6) Thomas Clark denied any involvement in the robbery; (7) the night before the robbery, appellant and Morgan talked on the telephone while appellant was working at the arcade; (8) two hours after the robbery, appellant deposited $1,700 of the stolen money in his credit union account; (9) four hours after the robbery, appellant was driving the getaway car; (10) in the trunk of that car was a blue bag containing both the gun used in the robbery and proceeds of the robbery; and (11) an empty gun holster was visible on the floor of the car. Taken together, this evidence is compelling enough to go well beyond that required to survive a motion for judgment of acquittal. See Lemon v. United States, 564 A.2d 1368, 1372 (D.C. 1989); Ready, 445 A.2d at 987-88. The risk was minimal that the jury would improperly conclude on the basis of the conflicting defenses alone that both appellant and Morgan were guilty. See Reynolds, 587 A.2d at 1083. *fn4
Appellant tries to persuade us, however, that this independent evidence of his involvement in the crime is mostly innocuous. He also argues there is significance in the fact that all this evidence is circumstantial. He therefore urges us to conclude that far more substantial evidence is required than the government produced to offset the prejudice of conflicting defenses. According to appellant, by allowing the level of circumstantial evidence presented here to satisfy the test for denying severance, this court would be reading out of our jurisprudence all possibility for reversal for abuse of discretion under Rule 14 when co-defendants present irreconcilable defenses.
Specifically, appellant cites Mitchell for the outside limit of denying severability when defenses are irreconcilable. There, we found "powerful" circumstantial evidence of defendant's guilt when his roommates saw him go into his bedroom with the victim and heard the victim scream, and neighbors later saw defendant leave his apartment holding his hand over the mouth of his struggling victim on the night of her alleged murder. Mitchell, 569 A.2d at 179. In every other case where we have affirmed a decision not to sever based on concededly irreconcilable defenses, the government's evidence has consisted of an eyewitness who positively identified the appellant as a participant in the crime. *fn5 Appellant accordingly argues that because the government did not offer an eyewitness who could place appellant near the scene of the crime, and because the mostly innocuous, circumstantial evidence against him became compelling only after co-defendant Morgan presented a conflicting defense, the trial court should have severed the two defendants' trials.
This court has never held that an eyewitness identification of one or all defendants is a prerequisite for a joint trial with irreconcilable defenses. *fn6 Nor are we prepared now to say that circumstantial evidence, standing alone, is insufficient as a matter of law to negate the prejudice from irreconcilable defenses. It is long settled that circumstantial evidence is not necessarily entitled to less weight, as such, than direct evidence. See Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 99 L. Ed. 150 (1954); Chaconas v. United States, 326 A.2d 792, 797 (D.C. 1974); Criminal Jury Instructions for the District of Columbia, No. 2.10 (3d ed. 1978). Our decision in Mitchell, as well as the evidence in ...