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03/30/93 DENNIS JACKSON v. UNITED STATES

March 30, 1993

DENNIS JACKSON, APPELLANT
v.
UNITED STATES, APPELLEE. FLOYD R. BUSH, APPELLANT V. UNITED STATES, APPELLEE. MITCHELL Q. OWENS, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Eugene Hamilton, Motions Judge).* (Hon. Robert Scott, Motions Judge and Trial Judge)**

Before Rogers, Chief Judge, Schwelb and Wagner, Associate Judges. Concurring opinion by Judge Schwelb.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge : These consolidated appeals involve three co-defendants who were convicted following a joint trial for various offenses arising out of the armed robberies of three different liquor stores in the District within a one week period. During the last robbery, one of the robbers shot and killed a store manager, Lester Tuchman. The crimes occurred at: (1) Northeast Liquor Store on January 23, 1984; (2) Sol's Liquor Store on January 27, 1984; and (3) Kovak's Liquor Store on January 30, 1984. Appellant Mitchell Owens was the only defendant at trial indicted for offenses arising out of all three incidents. *fn1 Appellant Owens was convicted of two counts of robbery while armed of Leroy Davis and Rod Coller which occurred at Northeast Liquor Store; three counts of robbery while armed of Allen Porter, Jochim Berger and James Proctor which occurred at Sol's Liquor Store; and attempted robbery while armed of Lester Tuchman, two counts of robbery while armed of William Morrison and Adrienne Brox, and one count of first-degree felony murder while armed of Lester Tuchman, all arising out of the crimes at Kovak's. *fn2 Appellant Floyd R. Bush was convicted of the same offenses as Owens related to the robberies of Northeast Liquor Store and Kovak's Liquor Store. Finally, Dennis Jackson was convicted of the charges stemming from the robberies of Sol's Liquor Store and Kovak's Liquor Store. *fn3

Appellants raise numerous claims of error on appeal. Common to all appellants' arguments is that the trial court erred in denying their motions to sever counts and/or defendants. Appellant Jackson also contends that the trial court erred in denying his motion to suppress identification evidence. Appellant Bush also argues that reversal is required because the trial court erred in (1) admitting other crimes evidence; (2) failing to make an inquiry when it became apparent that a conflict of interest existed between his attorney and Owens' attorney; and (3) allowing the prosecutor to make improper arguments which resulted in an unfair trial. Appellant Owens contends that the trial court erred in failing to rule sua sponte that Owens' common-law wife had a spousal privilege which precluded her testimony and in quashing a subpoena for, or in failing to inspect in camera, psychological records of a key government witness. Finding no reversible error, we affirm.

I. Facts

During January 1984, Christopher Sampson and his friend of seven years, appellant Owens, frequently visited the apartment of Barbara Singletary at 1254 C Street, Southeast, Washington, D.C. Singletary's home was a known "shooting gallery," i.e., a place which people paid to enter to inject heroin. Singletary's boyfriend, John Williams, *fn4 had introduced Sampson and Owens to appellants Bush and Jackson about five months earlier. Ms. Singletary testified that she had known appellant Jackson since they were teenagers and that appellant Owens had introduced her to Sampson and Bush.

Ms. Singletary testified that the four men were often together in her apartment, i.e., "two -- three times a week." Sampson referred to the house as the group's headquarters. According to Ms. Singletary's testimony, some time after January 11, 1984, she overheard a Discussion between Owens and Jackson about a liquor store. However, she could not place appellant Bush in the Discussion, and she only assumed that Sampson was present because he was there with them most of the time. Ms. Singletary recounted the Discussion this way:

They didn't have enough money. They needed more money. They had to hit some place easy. Get at least a liquor store that was easy for them so they could have some money, more money.

John Williams testified that in early 1984 he discussed with Owens, Bush, and Sampson the possibility of robbing Kovak's Liquor store, which Owens, who knew the "spots," said was "sweet." Owens also said that Kovak's had a lot of machines and cash registers, but that the group did not have enough weapons to rob a store of that size. Sampson testified that at some point he and Owens had agreed that Kovak's could be taken, but that they needed more than three people and three pistols. The three robberies occurred after these Discussions.

A. The Robbery of Northeast Liquor Store

On January 23, 1984, Sampson and Owens discussed robbing Northeast Liquor store, selecting that store because of its secluded location. The two men met at Singletary's apartment and asked Floyd Bush to assist them. Bush agreed. Sampson had the only weapon, a .38 caliber pistol. Owens drove the three men to the store in his green Datsun. Owens parked in a nearby alley and left Sampson and Bush in the car while he went to case the store. About two minutes later Owens returned to the car and gave Bush and Owens the go-ahead.

Between 5:00 and 5:30 p.m. Bush and Sampson entered the store. Sampson pulled out his gun, jumped on the counter, yelled "stick up" and ordered everyone to lie on the floor. At the time, two employees, Leroy Davis and Rod Coller, and at least two customers were in the store. Although neither employee saw who gave the order, they both complied. One of the customers, Arthur Williams, apparently stunned, remained standing. Sampson went to Coller's location, opened the cash register and removed the money. Sampson also took an old pistol with a long barrel (.38 long) from a nearby shelf.

In the meantime, Bush picked up one of the clerks (Leroy Davis) by the belt and ordered him to open the other cash register. Davis complied. Bush pushed Davis back to the floor and removed money from the register. Sampson jumped over the counter just before leaving and fell. Bush and Sampson then ran to the alley where Owens was waiting in the car. As Owens drove away, Sampson and Bush lay down inside the car to avoid being seen. Sampson, Bush, and Owens returned to Singletary's apartment where they divided the money. They gave Ms. Singletary $20.00.

Sampson and Owens spent the night at a hotel. Subsequently Owens informed John Williams, Singletary's boyfriend, that he had participated in the robbery of the liquor store. Williams also testified that Owens showed him the gun they took from the store, which Williams described as a big "mounty gun" with a clip on the butt.

B. The Robbery of Sol's Liquor Store

Williams testified that after Owens showed him the mounty gun, he was present when Sampson, Bush, and Owens discussed whether they had enough guns to rob Kovak's. Owens said he thought they did not. Shortly thereafter Sampson and Owens convinced Dennis Jackson to help rob another liquor store. On January 27th the three men rode around in Owens' Datsun looking for a store to rob, and they settled on Sol's Liquor Store. Again Owens went into the store alone, reported back to his cohorts that conditions were good, and drove around the block before parking nearby. It was about 5:20 p.m. when Sampson, armed with a .38, and Jackson, armed with the .38 long taken in the Northeast Liquor Store robbery, entered Sol's. The owner, Jochim Berger, and two employees, Alan Porter and James Proctor, were behind one counter, while Margaret Peach, another employee, was operating a lottery machine at another. Charles Mayo, another employee, was stocking beer at another counter.

Alan Porter first noticed the two robbers when one said, "Hold it right there." Jackson, who was holding a gun, was near the counter where the men were working. Sampson jumped over the counter and ordered Mr. Porter to open the cash register. Sampson took money out of the cash drawer and asked Jackson whether he should take the change. He filled a bag with more money after Jackson responded affirmatively. Sampson took wallets from Berger and Porter and cash from James Proctor. Jackson continued to stand guard, threatening the store's employees. Sampson vaulted over the counter, and he and Jackson ran to the alley where Owens was waiting in the get-away car. Owens drove the group to Jackson's house where they split the money. Sampson spent the night in an Econo Lodge with Owens and his girlfriend, Barbara Moore.

C. The Robbery of Kovak's Liquor Store

After the Sol's Liquor Store robbery, Owens and Sampson decided that two guns were enough to rob Kovak's. On January 30, 1984, Owens and Sampson met Jackson and Bush at Singletary's apartment. Owens assigned responsibilities to each of them. Jackson was to "hold the store" i.e., make sure no one entered or left during the robbery; Bush was to take the money from one cash register and the lottery machine on the right; Sampson was to take the register on the left side of the store; and Owens was to wait outside and act as the lookout. Owens drove to Kovak's in his green Datsun which he parked in an alley nearby. As the trio walked from the car to the store, Sampson handed Jackson the .38 long which had been taken in the Northeast Liquor Store robbery. When Jackson, Bush and Sampson entered the store at about 7:30 p.m., the manager, Lester Tuchman, and a clerk, William Morrison, were working behind the main counter on the left side of the store, and Adrienne Brox was selling lottery tickets at the counter on the other side. One customer, Errick Murdock, was waiting to buy a lottery ticket from Brox, while another, Reginald Reid, was in the rear of the store.

Consistent with their plans, Bush went to the lottery machine, Sampson went behind the counter where Tuchman and Morrison were working, and Jackson, armed with the .38, stood near the front counter, announced the robbery, and commanded everybody to remain where they were. Sampson took two wallets from Morrison's pocket, forced him toward the cash register, and ordered him to open it. The manager, Tuchman, kept moving in spite of Jackson's command that he stop, and Jackson shot Tuchman in the chest from a distance of about four feet. Sampson started to leave the store, but he returned to get the money from the cash register. Bush, who had ordered Ms. Brox to open the register near the lottery machine, started to leave, but Jackson told him to make sure he had all of the money. Bush returned to Brox's station and took more money from a cigar box inside a drawer. Before leaving, Jackson commanded everyone to remain where they were, threw a display case of watches to the floor, and kicked it. Someone yelled, "Mike, c'mon let's go." Bush, Sampson, and Jackson ran outside where Owens was waiting in the Datsun. Again, the three passengers lay down to avoid being seen as Owens drove away. Jackson told Sampson that he shot the clerk because he thought the man was reaching for something. Sampson stayed at the Econo Lodge after this robbery.

John Williams testified that the day after the robbery, Bush admitted to him that he was involved in the robbery with three others; that an employee had been shot with the "mounty" gun because he appeared to be reaching for a weapon; that the shooter knocked over the watch display case after the shooting; and that they used a green Datsun as the get-away car.

II. Joinder Issues

Appellants were indicted jointly and tried on all counts arising out of the three separate criminal events described above. Each appellant argues that the trial court erred in failing to sever some of the counts for trial. Therefore, we review first some of the principles which control Disposition of these issues generally.

In cases involving more than one defendant, Super. Ct. Crim. R. 8 (b) controls whether joinder is proper. *fn5 Settles v. United States, 522 A.2d 348, 352 (D.C. 1987); Ray v. United States, 472 A.2d 854, 857 (D.C. 1984). The rule controls whether the issue raised on appeal challenges joinder of defendants or offenses. Ray, 472 A.2d at 857. Under this rule, it is not necessary that all defendants be charged in each count. Id. Although properly joined under Rule 8 (b), severance may be warranted "if joinder prejudices any party." Id. at 856; Russell v. United States, 586 A.2d 695, 698 (D.C. 1991). The grant or denial of severance of offenses properly joined is within the sound discretion of the trial court, and will result in reversal only upon a showing of abuse of discretion. Russell, 586 A.2d at 698. Where individuals are charged jointly with committing crimes, there is a strong presumption that the offenses should be tried together. Id.

In a case involving multiple defendants, Rule 8 (b) allows joinder only if the offenses "are based on the same act or transaction or series of acts or transactions." Ray, supra, 472 A.2d at 857. For purposes of joinder, multiple offenses are deemed to constitute a series of acts or transactions only when they meet the following criteria: "(1) where the offenses are committed as a means to a specific common end, or where they are directed toward some shared goal; (2) where one offense logically leads to another; and (3) where the offenses are part of a common scheme or plan, involving the same place, a short period of time, and a similar modus operandi, so 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.'" 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) (footnotes omitted); accord Byrd v. United States, 551 A.2d 96, 99 (D.C. 1988), cert. denied, 493 U.S. 968, 107 L. Ed. 2d 380, 110 S. Ct. 415(1989); Wright v. United States, 510 A.2d 223, 224 (D.C. 1986). These categories constitute an exclusive list of factors for determining whether offenses are properly joined under Rule 8 (b) in all multi-defendant cases. Settles, supra, 522 A.2d at 352.

A. Floyd Bush's Joinder Challenge

Appellant Bush argues on appeal that the trial court erred in denying his motion for severance because the counts related to the offenses at Northeast Liquor Store and Kovak's Liquor Store were joined improperly under Super. Ct. Crim. R. 8 (b). Assuming proper joinder, he contends that the offenses should have been severed under Super. Ct. Crim. R. 14 because of undue prejudice. Specifically, appellant Bush asserts that the two separate criminal incidents did not fall within any of the exclusive categories required for joinder under Rule 8 (b) as outlined in Davis, supra, 367 A.2d at 1262. The government argues the contrary, contending that its evidence established that the offenses were a part of a common scheme or plan and were committed to achieve a common goal within the meaning of the rule. See Settles, supra, 522 A.2d at 352.

We consider first the government's theory that the crimes meet the criteria for a common goal. For offenses to fall within this category, the sets of offenses must be directed toward a specific goal or must depend for their success upon each other. Id. at 353; Davis, supra, 367 A.2d at 1263; Ray, supra, 472 A.2d at 858. In support of its position, the government relies on the fact that another appellant, Owens, determined to commit the Kovak's robbery prior to the first robbery at Northeast Liquor Store for the purpose of obtaining more guns and cash to enable the participants to rob the larger store, Kovak's. We view these facts as too general to support the common, unitary goal requirement. Each of the separate incidents was an isolated event, and no one of them actually depended upon the other for its success. In each instance the object was to obtain money, with only an additional interest articulated by one of the instigators that the group should also steal guns to facilitate other robberies. In the context of this case, the robbery of each liquor store was an end in itself. It was not shown that the sole purpose for the first two robberies was to further the goal of robbing the third store. Therefore, we consider the goal advanced by the government to be simply too broad and too unspecific to meet the requirement for a specific, unitary goal toward which the criminal acts were directed. See Ray, 472 A.2d at 858. The goal of obtaining property from others, here money and guns, was too general for joinder of offenses under Rule 8 (b). See id. at 858.

The government also argues that the offenses are joined properly under Rule 8 (b) because they formed a part of common scheme or plan. Specifically, the government contends that appellant Owens and Christopher Sampson were close associates who planned the robberies in advance and secured the help of the others to carry out their plans. Additionally, the government cites similarities in the modus operandi for each of the crimes, including: use of the green Datsun; Owens' preliminary survey of the targeted store and his driving of the get-away car; assignments by Owens to the others; and the manner in which one person "held the floor" while other participants looted the cash registers and lottery machines.

The government's argument is similar in many respects to the arguments rejected by this court in Davis, supra. In Davis, the appellants were charged in a forty-four count indictment with multiple armed offenses, including kidnapping, robbery and rape, arising out of eight incidents, involving eight women in the District of Columbia. One of the appellants, Warren, challenged joinder of the counts which charged Davis either alone or with others, for assaults on three of the complainants in the same indictment with those counts charging Warren and Davis jointly with criminal assaults on four of the victims. We held that the counts were misjoined. Davis, 367 A.2d at 1263. In doing so, we rejected the government's argument that the similarity of the modus operandi for each criminal incident fulfilled the requirements of Rule 8 (b), i.e., that both defendants be charged with having participated in a "series of acts or transactions." Id. at 1261. In Davis, the government had argued in opposition to Warren's motion for severance the similarity in the modus operandi with respect to the use of the same green Vega; the occurrence of all offenses within a seven month period; and the fact that the appellants knew each other and were identified by some of the complaining witnesses. In Davis, we acknowledged the principle that:

The series of acts envisioned by the drafters of Rule 8 (b) is one in which the individual offenses are connected or interrelated in such a manner that proof of charges against one defendant would necessarily have to be introduced in proving the jointly-charged offenses, or that the ...


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