Appeal from the Superior Court of the District of Columbia; (Hon. Truman A. Morrison, III, Trial Judge)
Before Rogers, Chief Judge, Ferren, Associate Judge, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson
BELSON, Senior Judge : A jury found appellant, Christopher Dickerson, guilty of one count of armed robbery under D.C. Code §§ 22-2901, -3202 (1989 Repl.), but was unable to reach a unanimous verdict on the charges of burglary in the second degree, D.C. Code §§ 22-1801 (b), -3202 (1989 Repl.), felony murder while armed in connection with the burglary, D.C. Code §§ 22-2401, -3202 (1989 Repl.), and felony murder while armed in connection with the armed robbery, D.C. Code §§ 22-2401, -3202. *fn1 After a retrial, a second jury found appellant guilty of armed robbery and felony murder in connection with the robbery, but acquitted him of the remaining charges. *fn2 The count of armed robbery was resubmitted to the second jury for the sole purpose of clarifying the charge of felony murder, with the agreement of all parties that the second verdict was to have no effect on the original conviction for armed robbery and the trial court would defer imposing sentence on the original conviction, thus foreclosing its use for impeachment at the second trial. The Judge sentenced Dickerson on both the armed robbery and the felony murder convictions.
Dickerson's principal contention on appeal is that the trial court committed plain error when it substituted the word "duty" for the word "must" in the standard jury instruction regarding acquittal in the event the jury had a reasonable doubt as to whether Dickerson had committed every element of the offense in question. We find appellant's contention of plain error unpersuasive and, accordingly, affirm.
In the early morning hours of January 29, 1986, a drug dealer named Wilfredo LaRosa was stabbed to death and robbed of an unspecified amount of currency and narcotics. At trial, the government presented the testimony of Sean Butler, who was in the decedent's employ as a drug runner. Butler, who was familiar with all four codefendants, testified that on January 28, 1986, at approximately 9:00 or 10:00 p.m., he observed Dickerson and his co-defendants go into an apartment building on First Street near Galveston Street, S.W., with Rosa. Inside the building were several empty apartments, including Apartment No. 202, which were apparently utilized by Rosa as a "clubhouse" where he waited while his "employees" trafficked in narcotics outside on his behalf.
One of these employees was Donald "Butch" Stewart, who testified that he was a friend of both appellant Dickerson and co-defendant Evans, and was with Rosa in Apartment No. 202 at 10:00 p.m. on the night of the murder. He testified that he gave LaRosa five or six hundred dollars in exchange for cocaine which Stewart was to sell on the street. Co-defendant Evans, who was also present, confided to Stewart that he intended to kill LaRosa. Stewart, not taking Evans seriously, never told LaRosa about Evans' remark.
Due to an apparent lack of customers that evening, Stewart retired to a friend's house for two hours. Upon his return to the Galveston Street area, he encountered Anderson and his three codefendants, who appeared out of breath as if from running. They all went to Evans' apartment where Stewart noticed that Anderson had in his possession approximately four to five hundred dollars, and appellant Dickerson had a bag containing what he believed to be cocaine. Stewart testified that he recognized the bag as the one LaRosa had used to dispense cocaine to him several hours earlier. To ensure Stewart's silence, Anderson gave him some of the cocaine.
LaJuan Baylor, Dickerson's girlfriend, testified that the night before she learned of LaRosa's death, Dickerson had approached her at approximately 1:00 a.m. and asked her to hide some cocaine. He also informed her that there had been a murder in which he was involved. She testified that after she had given her statement to the police, Dickerson requested her to change it, but she refused.
Standard Jury Instruction 2.08 provides, in relevant part:
If you find that the government has proved beyond a reasonable doubt every element of the offense with which the defendant is charged, [you may] [it is your duty to] find him guilty. On the other hand, if you find the government has failed to prove any element of the offense beyond a reasonable doubt, you must find the defendant not guilty.
CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 208 (D.C. Bar Ass'n, 2d ed. 1972) (emphasis supplied).
At the second trial, the trial court instructed, in the part Dickerson challenges, "if on the other hand, you find that the government has failed to prove any element of any charge as to a particular defendant, then as to that defendant in that charge it's your duty to acquit, ...