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02/21/92 MARVIN TAYLOR v. UNITED STATES

February 21, 1992

MARVIN TAYLOR, APPELLANT
v.
UNITED STATES, APPELLEE; BRYANT K. JONES, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Reggie B. Walton, Trial Judge); (Hon. Joseph M. Hannon, Motions Judge)

Before Terry, Steadman, and Wagner, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: A grand jury charged appellants Taylor and Jones with two counts each of assault with intent to kidnap while armed, *fn1 assault with intent to commit robbery while armed, *fn2 assault with a dangerous weapon, *fn3 mayhem while armed, *fn4 and one count each of carrying a pistol without a license. *fn5 Jones pleaded guilty to the charges in this indictment and agreed to testify for the government before a second grand jury. The government then dismissed the indictment against Taylor. Jones testified before a second grand jury but did not implicate Taylor, as the government had expected him to do. The second grand jury then indicted Taylor for the same offenses charged in the first indictment. The second indictment also charged Jones with perjury *fn6 for his allegedly false testimony before the second grand jury. Both appellants were tried together on the second indictment and were found guilty as charged. Both noted appeals from their convictions. *fn7

Taylor then filed a motion, pursuant to D.C. Code § 23-110 (1989), to vacate his sentence on the ground that his trial counsel had been ineffective. The court denied that motion without a hearing. Taylor did not appeal from that denial, but instead filed a motion for reconsideration, which the court also denied. From the latter denial Taylor noted an appeal (No. 89-1466). We affirm the convictions of both appellants (Nos. 87-188 and 87-227), dismiss No. 87-482 because it was taken from an invalid order, and dismiss No. 89-1466 for lack of jurisdiction.

I

On June 15, 1985, Joseph Billera and his fiancee, Dolores Benninger, both from New York, came to Washington to visit an old friend, Gary Hacker, who lived in suburban Virginia. The three of them went to a restaurant in Northwest Washington for a late dinner. After leaving the restaurant at about midnight, they drove around Washington for a while in Hacker's car, looking at a few famous buildings and monuments. They then decided that on the way back to Virginia they would stop at Hains Point in East Potomac Park to see a statue known as "The Awakening," a popular tourist attraction.

They arrived at Hains Point sometime between 1:00 and 2:00 a.m. on June 16, parked the car, and started to walk toward the statue, but soon they realized that it was too far to walk. *fn8 As they headed back to the car, Benninger paused to look at the former presidential yacht Sequoia, which at that time was docked near Hains Point. Billera and Hacker meanwhile walked back directly to Hacker's car. As they stood next to it, they were shot and wounded by two men who were attempting to rob them. It is undisputed that one of the gunmen was appellant Jones. *fn9 The sole issue at trial was the identity of the second gunman.

Appellants Taylor and Jones were at the park with two other men, Gary Jones and Louis Williams, who was known by his nickname "Henry." *fn10 They were in appellant Jones' car, a Peugeot registered in his aunt's name. Because they needed money to go to a concert later that month, they decided to rob Billera and Hacker using two pistols that appellant Jones had in the car.

Jones and Taylor approached Billera and Hacker. As Taylor held a gun on Billera and Jones aimed the other gun at Hacker, they ordered Billera and Hacker to get into their car. Billera, who was studying his assailant's face, *fn11 asked Jones and Taylor what they wanted, but they simply repeated their demand that the two men get into the car. Benninger then came up and asked what was going on, whereupon Jones told her to shut up and ordered her into the car as well. Billera then pushed Taylor away, and Taylor responded by putting his gun to Billera's head.

Just then a Catholic priest, the Reverend Jerry Hargrove, having completed his nightly jog in the park, drove up to the scene in his car. As Billera moved towards Hargrove's car, Taylor shot him in the leg. At the same time Jones shot Hacker, also in the leg. Jones and Taylor then ran to the Peugeot and climbed in, and the car took off, driven by someone who was already in the front seat. Father Hargrove followed the Peugeot while calling the police on his car phone. He gave the police a description of the car, including the license number. Eventually, however, he lost sight of the car when it sped up.

Both victims spent several weeks in the hospital and three to four months thereafter in body casts; Billera, in addition, spent four more months on crutches. Each suffered some permanent disability in the injured leg.

Detective Thomas Wise of the United States Park Police, assigned to investigate the case, learned that the Peugeot was registered to Jones' aunt and that Jones had used the car on the night of June 15-16. Detective Wise interviewed Jones and then showed a photograph of Jones to the victims, each of whom identified Jones as Hacker's assailant. Wise later showed the victims and witnesses an array of photographs that included a picture of Louis Williams. None of the witnesses identified Williams as the second gunman. All four witnesses -- Billera, Hacker, Benninger, and Hargrove -- viewed a lineup in which both Taylor and Williams stood, and all four separately identified Taylor as the second gunman. The same four witnesses testified at trial that Taylor was the second gunman and that Williams was not.

The government introduced part of Jones' grand jury testimony to support the perjury charge against him. In that grand jury testimony, Jones stated that he, Taylor, Williams, and Gary Jones were together that night and that they drove to Hains Point, where he and Williams decided to rob Billera and Hacker. Jones told the grand jury that he and Williams were the two robbers, that he himself shot both victims, and that Taylor and Gary Jones were asleep in the back seat of the car while the attempted robbery was taking place.

Jones testified at trial consistently with his grand jury testimony, stating that Williams, not Taylor, was his accomplice. Jones said that as he and his companions fled from the scene of the crime, they drove over the South Capitol Street bridge, and he threw both guns into the river below. Taylor took the stand and said that he was asleep in the back seat when the shootings occurred.

Louis ("Henry") Williams asserted his Fifth Amendment privilege against self-incrimination and did not testify at trial. He was, however, made available for identification purposes. Benninger viewed Williams in the courtroom and testified that he was not the second gunman. Billera testified that he had observed Williams in the waiting room, just outside the courtroom, for quite some period of time and that he was "one hundred percent" sure that Williams was not Jones' accomplice. Asked whether there was any doubt in his mind about that, Billera replied, "Absolutely not."

II

Taylor claims that the joinder of his trial with that of Jones was improper under Super. Ct. Crim. R. 8 (b) *fn12 and that he is therefore entitled to a new trial. The government argues that Taylor waived his right to complain of misjoinder under Rule 8 (b) because he did not raise the issue in a pre-trial motion, as required by Super. Ct. Crim. R. 12 (b)(2) and 47-I. The government notes that the failure to raise a timely Rule 8 objection "constitutes waiver of that objection." Evans v. United States, 392 A.2d 1015, 1023 (D.C. 1978). Although this is technically correct, this court has held nevertheless that it will consider a claim of misjoinder under the plain error standard if the objection was not timely raised in the trial court. Smith v. United States, 561 A.2d 468, 472 (D.C. 1989) (citing cases). We therefore review Taylor's claim of misjoinder for plain error, which means that Taylor must demonstrate error "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial" in order to win reversal on this ground. Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc).

Rule 8 (b) controls joinder in any case in which two or more defendants are charged in the same indictment. Settles v. United States, 522 A.2d 348, 352 (D.C. 1987). Under Rule 8 (b), defendants may be joined only if the charges against them "are based on the same act or transaction or series of acts or transactions." *fn13 Id. (citation omitted). When the joined defendants are charged with different offenses in the same indictment, the different offenses must constitute a "series of acts or transactions" joinable under Rule 8 (b). Id. As we noted in Settles, multiple offenses

constitute a "series of acts or transactions" joinable under Rule 8 (b) only if they fall into one of three categories: (1) where the offenses are committed to achieve a "specific common end," (2) "where one offense logically leads to another," or (3) "where the offenses are part of a common scheme or plan," and are so closely connected in time and place "that there is necessarily a substantial overlap in proof of the various crimes and 'it would be difficult to separate proof of one from the other.'"

Id., quoting Davis v. United States, 367 A.2d 1254, 1262 (D.C. 1976), cert. denied, 434 U.S. 847, 54 L. Ed. 2d 114 , 98 S. Ct. 154 (1977).

In the instant case, the indictment charged Taylor with various assaults and charged Jones with perjury. Joinder was proper under Rule 8 (b) only if the assault charges and the perjury charge fell into one of the three categories listed in Settles. Taylor argues that the offenses do not fall into any of the three categories and that joinder was therefore improper in this case. *fn14

Citing Davis, supra, Taylor argues that the second category, offenses logically leading to another offense, applies only to offenses which "necessarily led to or caused" subsequent offenses. In Davis two defendants were tried together for seven rapes committed over a period of several months. We held that the defendants were misjoined, ruling that there was "no logical development of or relationship between the offenses because no crime necessarily led to or caused the subsequent offenses." 367 A.2d at 1263. Taylor relies on this language in arguing that the second category does not apply in this case because the offenses with which he was charged did not "lead to or cause" Jones' perjury before the grand jury. Taylor argues that, although his alleged offenses were a necessary precondition for Jones' perjury, they did not themselves cause Jones' perjury. Thus, Taylor maintains, this case does not fall into the second Settles category.

We held, however, in a case decided after Davis, that one offense "logically leads to another" for purposes of Rule 8 (b) joinder when the subsequent offense is a "sequel" to the initial offense. Bush v. United States, 516 A.2d 186, 192 (D.C. 1986). In Bush two defendants were charged with robberies, and two other defendants were charged with obstruction of Justice for their attempts to prevent witnesses from testifying about the robberies. This court, citing Davis, rejected the defendants' claims that they were misjoined in violation of Rule 8 (b). We noted that while the cover-up that led to the obstruction of Justice charges "was not the inevitable result of the commission of the underlying crimes, the cover-up surely was a sequel to those crimes." Id. In this case likewise, Jones' perjury "was not the inevitable result" of ...


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