Appeals from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)
Before Farrell and Wagner, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Farrell
Opinion for the court by Associate Judge Farrell.
Opinion by Associate Judge Wagner, Concurring in part and Dissenting in part.
Farrell, Associate Judge: Appellants Taylor and Lawrence appeal from their convictions for armed robbery. Lawrence, who was tried and convicted on a theory of aiding and abetting, challenges the sufficiency of the evidence linking him to the acts of the principal offenders. Taylor, tried jointly with Lawrence and a third co-defendant who was acquitted, argues that the trial Judge erroneously denied his motions for severance on the ground of conflicting defenses, and also contends the Judge abused his discretion in rejecting Taylor's request to submit a voice exemplar without taking the stand and being subjected to cross examination.
We reject Lawrence's attack on the sufficiency of the evidence. As to Taylor, we conclude that his motions for severance were properly denied, but that the Judge's ruling on the voice demonstration issue was influenced by an erroneous conception that it was inadmissible, because testimonial, unless Taylor submitted to cross-examination. We do not reverse outright, however, but instead remand for a proper exercise of the discretion the Judge possessed in regard to admission of the voice exemplar.
The events in issue were set in motion in the early evening of July 11, 1989, when Officer Dean Welch of the Metropolitan Police went to the Barry Farms section of Southeast Washington to attempt to buy three ounces of liquid PCP. Welch, supported by backup officers, was driving an unmarked vehicle equipped with a recording device, and had $750 in pre-marked bills in his pockets. According to the government's evidence, when Welch arrived at the Barry Farms location he encountered a group of two men and a woman. One of the men, appellant Lawrence, approached Welch's car and Welch explained his interest in buying PCP, asking for "Derrick," a drug dealer who frequented the area (and who Welch knew was in jail at that time). Lawrence answered that he could help obtain the drug, then got into Welch's car and directed him to a parking lot a few blocks away. There he signaled to another man who was wearing black shorts and a white T-shirt with an approximately six-inch black band around the middle. This man, whom Welch identified in court as appellant Taylor, asked Lawrence if Welch wanted PCP. When Lawrence replied that Welch wanted three "bottles" (the street term for ounces), Taylor ran off apparently to procure the drug.
Lawrence then got out of Welch's car and stood near a dumpster behind the car with two other men. One of these men, co-defendant Shorter, *fn1 approached the driver's side of the car and offered to sell Welch drugs. When Welch said Lawrence was already helping him obtain the "water" (street vernacular for PCP), Shorter replied that he knew Lawrence. Shorter moved away but twice returned to the car, both times attempting to sell Welch PCP. On the last try he brought a one-ounce bottle of PCP with him. As Shorter tried to persuade Welch to buy the bottle, Taylor reappeared on the scene, running toward the car as if holding something near his abdomen. Welch believed he was concealing the three ounces of PCP Welch had requested. Taylor got into the front passenger seat while Lawrence stayed outside the car near the dumpster and Shorter stood near the driver's window. *fn2 When Taylor sought to persuade Welch to buy Shorter's ounce of PCP, Welch grew fearful and told Taylor to leave the car if he was not going to sell the three ounces Welch wanted. Taylor suddenly took out a .38-caliber revolver, pointed it at Welch, and directed him to hand over all his money. Welch first relinquished $100, then an additional $550; after searching him for additional money and finding none, *fn3 Taylor got out of the car and told Welch to drive away. Welch had recorded the conversation.
Welch left the parking lot and Taylor, Lawrence, Shorter, and a fourth unidentified person ran uphill together toward the apartments behind the parking lot. Welch radioed "lookout" descriptions, including one of Taylor as wearing black shorts and a white shirt with a black band around the middle. Lawrence and Shorter were stopped some twenty minutes after the robbery and immediately identified by Welch. *fn4 Lawrence was still wearing the clothing Welch had described, and a $20 bill found in Lawrence's pocket was one of the marked bills taken from Welch.
Shown an array of photographs later that evening, Welch positively identified Taylor as the man who had robbed him. Shortly after making the identification, Welch returned to the crime area and saw Taylor there, identifying him again even though Taylor was now wearing a white T-shirt, a towel around his neck, and what appeared to be light-colored khaki pants. Taylor eluded Welch, but an updated description of his clothing was broadcast and he was picked up around midnight wearing stone-washed jeans that closely resembled khaki pants in cut and color. Welch identified Taylor as the robber at the scene of the stop, and once more in court. He also identified Taylor's voice as the voice of the assailant on the contemporaneous recording.
We first consider Lawrence's claim that the evidence sufficed only to show that he arranged an aborted drug transaction, not that he took part in the robbery of Welch. Of course, to withstand a motion for judgment of acquittal the evidence need only permit a reasonable jury to find guilt beyond a reasonable doubt; it need not compel such a determination. Curry v. United States, 520 A.2d 255, 263 (D.C. 1967) (citing Crawford v. United States, 126 App. D.C. 156, 158, 375 F.2d 332, 334 (1967)). Nor must the government refute "every possible inference of innocence." Driver v. United States, 521 A.2d 254, 259 (D.C. 1987). Lawrence was found guilty on a theory of aiding and abetting; to support his conviction the government had to adduce evidence permitting reasonable jurors to find that he was "involved in the criminal activity to the extent that he in some sort associate himself with the venture, that he participate in it as in something that he wished to bring about, that he by his action to make it succeed." Wesley v. United States, 547 A.2d 1022, 1026 (D.C. 1988) (citations and internal quotation marks omitted).
Viewing the evidence in the light most favorable to the government, we hold that the jury could fairly conclude that Lawrence knew of Taylor's design to rob Welch and facilitated it by his presence. See Hordge v. United States, 545 A.2d 1249, 1254 (D.C. 1988) (presence that "facilitates the unlawful deed" sufficient to show aiding and abetting). First, Lawrence does not dispute that he was working with Taylor to sell drugs. From that starting point, the evidence supports reasonable inferences that Lawrence and Taylor knew it was likely Welch was carrying enough money to buy the amount of PCP Welch told Lawrence he wanted, *fn5 and that Lawrence and Taylor tacitly agreed to rob Welch when Taylor, summoned to Welch's car by Lawrence, discussed with Lawrence the number of "bottles" of PCP Welch wanted to buy. Moreover, after Lawrence got out of the car, he stood behind it near the dumpster where he could see the street entrance of the parking lot as well as into the car, and remained there throughout the robbery, inferentially in the role of a lookout. Lawrence then fled with Taylor and the others toward the same apartment buildings. See In re Q.L.J., 458 A.2d 30, 32 (D.C. 1982) (flight can imply guilty participation when it "accompanied conduct that facilitated an unlawful act"). Finally, Lawrence had $20 of the stolen money in his possession when ...