Appeal from the Superior Court of the District of Columbia; Hon. Ronald P. Wertheim, Trial Judge.
Rogers, Chief Judge, and Schwelb and Wagner, Associate Judges. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Associate Judge Wagner.
The opinion of the court was delivered by: Schwelb
On October 26, 1983, Reginald Brooks was convicted by a jury of one count each of burglary in the second degree, D.C. Code § 22-1801 (b) (1981), malicious destruction of property, id. § 22-403, breaking and entering a vending machine, id. § 22-3427, and petit larceny, id. § 22-2202. On appeal he contends, among other things, *fn1 that the trial Judge committed reversible error by instructing the jury, after it had commenced its deliberations, with respect to the law of aiding and abetting. Brooks claims that the case was tried on the theory that he was the principal and that there was no evidentiary basis for the notion that he aided and abetted another principal in the commission of the crime. We agree with Brooks' contention, and therefore reverse his conviction.
This case arises out of an incident which occurred more than nine years ago. On Sunday, February 21, 1982, according to the prosecution witnesses, someone broke into the Lincoln House Restaurant, which is located near Ford's Theatre at 10th and E Streets in Northwest Washington, D.C. The rear door of the establishment was taken off its hinges. The intruder attempted to tamper with the office door and the safe and broke into the cigarette machine. Several liquor bottles were removed from a storage area behind the bar and placed in a bag in the center of the floor; other bottles were found standing on the bar. There was no dispute at trial that a burglary and related offenses had been committed by someone. It was the prosecution's theory that the someone was Reginald Brooks.
The government introduced a substantial amount of evidence to prove its case; we describe only that portion of it which is relevant to the issues at hand. Briefly, the restaurant was closed on the day of the crime. The owner came to the premises and heard banging noises emanating from the direction of the back door in the basement. After a brief attempt to investigate, he called the police and waited for officers in the front of the restaurant.
Officers Tyrie Wharton and Allan Waters were the first to arrive. Officer Wharton went to the front of the building, while Officer Waters covered the back. The owner remained with Officer Wharton, and both looked into the restaurant through a window near the front door. They noted that the cigarette machine had been moved several feet from its normal location, and they then spotted a man crouched down near the contraption, apparently trying to pull it. Officer Wharton noticed that the man was wearing a plaid sweater which, as she recalled, contained the colors red, rust and brown.
In the meantime, when Officer Waters arrived at the rear of the establishment, he saw a woman, later identified as Cynthia Murphy, standing in an alley near the open front of a garage adjoining the restaurant. In the garage, a few feet from Ms. Murphy, the officer found a woman's pocketbook which contained an assortment of tools. *fn2 Officer Wharton estimated that the opening of the garage was eight to ten feet from the rear door of the restaurant.
Officer Wharton called for the assistance of a canine unit, and Officer Donald L. Beach and his German shepherd police dog soon arrived on the scene. After announcing his presence and receiving no response, Officer Beach released the dog. The canine sleuth ran to the bag containing the liquor bottles, then down a stairway to the lounge in the basement, and finally towards the rear door. Hearing the noise from inside the establishment, Officer Waters positioned himself behind a wall in the alley so that he could see the basement doorway. According to Officer Waters, a man ran out of the open doorway. Officer Waters grabbed the man, who turned out to be Reginald Brooks.
Officer Wharton eventually testified that the sweater which Brooks was wearing looked like *fn3 the sweater which she had observed on the intruder when he was at the cigarette machine. *fn4 The owner thought that Brooks was the man whom he had seen inside the restaurant, but was not sure enough to make a positive identification.
Brooks did not testify on his own behalf. His only witness was a Public Defender Service investigator who had examined the premises and prepared photographs and a diagram. The investigator testified, among other things, that the door to the basement of the restaurant is not visible from within the garage, and that a person standing in the front opening of the garage could not see someone running out of the basement doorway.
Brooks and Ms. Murphy were both arrested and charged as co-defendants in the same indictment. The record before us does not disclose the Disposition of the case against Ms. Murphy. In any event, Brooks was tried alone.
THE CONTROVERSY OVER THE AIDING AND ABETTING INSTRUCTION
The prosecution case was presented in its entirety on the theory that Brooks was the principal, rather than an aider or abettor. The prosecutor began his opening statement by telling the jury that
You will hear in this case evidence of how the man who sits before you today, Reginald Brooks, was caught in the act of burglarizing the Lincoln House Restaurant.
The government's theory remained the same during closing argument:
The most important evidence is to consider what happened once Mr. Brooks got inside. What did he do? He went in and tried to steal the liquor bottles. He went in and he broke open this cigarette machine, left cigarettes and money all over the place. How do we know he had an intent to steal when he went in? That's what he did when he went in.
The government's focus never changed during the presentation of the case. With the express consent of both counsel, the trial Judge decided to instruct the jury before closing argument. *fn5 He did so because
it is easier for you to make your arguments based on the instructions that the jury has already heard. It is much easier for the jury, having heard the instructions, then to follow your argument.
The Judge thus correctly viewed it as especially important that both Brooks and the prosecutor be apprised of the content of the instructions before making their arguments. His determination that the instructions should be given first was plainly designed to assure that this be effectively accomplished. Indeed, the purpose of Super. Ct. Crim. R. 30 is to "provide counsel with the opportunity to fashion their closing arguments ...