Appeal from the Superior Court of the District of Columbia; (Honorable Reggie B. Walton, Trial Judge)
Before Ferren, Steadman, and King, Associate Judges.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: A jury convicted appellant of first degree felony murder while armed, D.C. Code §§ 22-2401, -3202 (1988 and 1991 Suppl.), and of armed robbery, D.C. Code §§ 22-2901, -3202 (1988 and 1991 Suppl.). Appellant raises four issues on appeal. He argues that (1) there was insufficient evidence to sustain his conviction for armed robbery; (2) his statements to the police should have been suppressed as fruit of an unlawful arrest; (3) the trial court erred when it permitted the government to rehabilitate its key witness with a prior consistent statement uttered when the witness still had a motive to fabricate; and (4) the trial court's standard felony murder instruction misstated the scope of liability for an aider and abettor. We affirm the conviction for felony murder while armed. Because appellant's conviction for the underlying armed robbery merges with the felony murder conviction, however, we remand to the sentencing court with instructions to vacate the armed robbery conviction. See Catlett v. United States, 545 A.2d 1202, 1219 (D.C. 1988), cert. denied, 488 U.S. 1017 (1989).
I. THE FACTS AND PROCEEDINGS
On December 11, 1987, at about 9:45 in the morning, the decedent, Kendall Merriweather, walked down Martin Luther King Avenue, S.E., carrying books and a large radio "boom box." He passed a group of four other young men, among whom were appellant, *fn1 co-defendant Jarrell Allen, government witness Anthony Humes, and Dennis Kingman, *fn2 standing near a public telephone at a gas station. Allen wore a blue jacket with black patches on the shoulders. As Merriweather passed by, Allen asked appellant, referring to the boom box, "Do you want it?" Appellant replied, "Yeah." Allen began walking after Merriweather; appellant followed Allen. *fn3 Appellant looked around, forward and backward, as he followed Allen. Then appellant stopped, watching Allen from a distance later measured to be 264 feet as Allen approached Merriweather and tried to take the boom box away from him. Merriweather backed away from Allen, shaking his head as if to indicate a negative response. After a slight struggle, Allen shot Merriweather in the back with a .357 magnum revolved Merriweather slumped against a parked car. Allen shot him again in the back and Merriweather fell to the pavement. Allen "cautiously" and "slowly" picked up the boom box and walked "casually" away through an alley near the shooting.
Appellant met Allen again at the other end of the alley through which Allen had fled. With Allen still carrying the radio, they walked together through the nearby woods toward the apartment of appellant's friend, Tyrone Wells, at 405 Orange Street, S.E. They stopped first in the basement of the apartment building at 405 Orange Street while police helicopters were circling overhead. Appellant knocked on the door of Tyrone Wells' apartment and entered, followed in ten or fifteen seconds by Allen, who was carrying the boom box. Allen handed the boom box to Wells, who took it to his bedroom and plugged it in. Wells returned to see Allen sitting on the couch, with the gun on top of the blue jacket beside him.
Three or four minutes after appellant and Allen had entered the apartment, there was another knock at the door. Wells called out, "Who is it?" "The police. Open up," was the response. Hesitating about a minute, Wells went to the door, turning his back on Allen. When Wells turned back around after admitting the police, he saw Allen coming into the living room from a back bedroom. As three police officers, one of whom was carrying a shotgun, entered Wells' apartments both Allen and appellant dropped to the floor.
After obtaining permission to search the apartment, the police found ammunition for a .357 magnum, as well as shells for a .22 and a single shotgun shell, in Allen's coat pocket. They recovered a .357 magnum from beneath the mattress in the back bedroom from which Wells had seen Allen emerge. They also discovered the stolen boom box in Wells' bedroom. (Later, one of the fingerprints found on the boom box was identified as appellant's.)
The police arrested Allen and appellant inside the apartment, handcuffed them, and brought them outside. Anthony Humes identified them separately on the sidewalk outside the apartment building. Humes and Dennis Kingman had been stopped by police several times that morning between the time of the murder and the identification on the sidewalk. On one of those occasions, Humes had been handcuffed and transported by police to the scene of the shooting. Humes acknowledged at trial that he had been, and still was, afraid of being implicated in the shooting.
Later, at the police station, after being properly advised of his Miranda *fn4 rights, appellant told police interviewers that he had watched the shooting from a nearby gas station. *fn5 He acknowledged that earlier that morning he had seen Allen at a store called Robie's on the corner of Martin Luther King Avenue and 4th Street, S.E., holding a gun matching the murder weapon.
Before trial, appellant filed a motion to suppress his statement to police as fruit of an illegal arrest. After a hearing, the trial court ruled that appellant had been subjected to a valid Terry *fn6 stop, resulting in the police bringing him outside for the show-up identification, and that Humes' identification of appellant then provided probable cause to arrest. The following day, the trial court sua sponte amended its ruling, concluding that the handcuffing of appellant inside the apartment had transformed an otherwise valid Terry stop into an arrest. The court nonetheless denied the motion to suppress, reasoning that because the officers had been justified, under Terry, in bringing appellant outside, the mere fact that he was handcuffed when they did so should not result in suppression of his statement.
Anthony Humes testified for the government at trial, referring to the radio, that he had heard Allen ask "Do you want it?" and had heard appellant respond, "Yeah." Defense counsel, on cross-examination, elicited testimony that in Humes' statement to Officer Bobby Shephard, *fn7 Humes had reported that Allen had said that he (Allen) wanted the radio, but that Humes had said nothing about appellant. Humes said on the stand that he did not recall his statement to Shephard. The defense called Officer Bobby Shephard to complete the impeachment of Humes. Shephard testified that Humes had never mentioned that appellant had said anything about wanting the radio.
Over strenuous defense objection, the trial court allowed the prosecution to rehabilitate Humes by introducing a prior statement to the police consistent with his trial testimony on direct examination. The government called Lieutenant Eric Witzig, who testified that he had interviewed Humes at the police station on the afternoon of the murder. At the time he was interviewed, Humes was not a suspect in the murder. Witzig testified that Humes had told him only three hours after the murder that Allen had asked appellant, "Do you want it?" (meaning the decedent's radio) and that appellant had answered, "Yes." Immediately after this testimony, the trial court instructed the jury on the proper use of testimony about a prior consistent statement.
At the end of the trial, after instructing the jury on aiding and abetting the armed robbery, the trial court delivered the standard "Redbook" instruction on accomplice liability and felony murder. See D.C. CRIMINAL JURY INSTRUCTIONS 4.22 (3d ...