Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Motions Judge)
Before Rogers, Chief Judge, and Steadman, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: In this expedited interlocutory appeal, appellant James W. Kelly contends that the Double Jeopardy Clause bars his retrial, after a remand based on reversible instructional errors, unless this court finds that the evidence at trial was sufficient to support his conviction of armed robbery. Appellant contends that he may not be retried because there was insufficient evidence that he knew the principal intended to commit the robbery, and that he knew or should have foreseen that a weapon would be involved. We hold that, in the absence of an express finding on evidentiary sufficiency by the court when it remanded the case for a retrial, the issue is properly before the court in the instant appeal. Upon viewing the evidence in the light most favorable to the government, as we must, we conclude that the evidence at appellant's first trial was sufficient to support his conviction. Accordingly, there remains no double jeopardy bar to appellant's retrial and we remand the case to the trial court.
On February 21, 1991, appellant, who was indicted for first-degree murder while armed, felony murder, and armed robbery, was convicted by a jury of armed robbery and thereafter sentenced to fifteen years to life imprisonment. On appeal from his conviction, appellant raised four issues: (1) there was insufficient evidence that he acted with "guilty knowledge" that the principal, John Watson, was committing a robbery when appellant picked up Watson and James Jones and drove away; (2) there was insufficient evidence that appellant knew or should have foreseen that a gun would be required to commit the robbery; (3) the trial Judge erred by refusing to instruct the jury that it had to find that appellant knew or should have foreseen that a weapon would be required; and (4) the trial Judge erred by refusing to give a lesser-included offense instruction on unarmed robbery.
In response to appellant's brief, the government moved to vacate the judgment of conviction and to remand the case for a new trial, conceding the reversible instructional errors in light of Ingram v. United States, 592 A.2d 992 (D.C.), cert. denied, 116 L. Ed. 2d 757, 112 S. Ct. 667 (1991), which was decided shortly after appellant's trial. The government also argued that because the evidence was sufficient, a retrial was not barred by the Double Jeopardy Clause. Appellant filed a response agreeing that his conviction should be vacated but arguing that the evidence was insufficient and a judgment of acquittal was, therefore, required. A three-Judge motions division granted the government's motion and remanded the case to the trial court. *fn1 A new trial date was set for September 13, 1993. Before the retrial commenced, appellant moved to dismiss the indictment on the ground that the retrial would violate the Double Jeopardy Clause of the Fifth Amendment. The motions Judge denied the motion. *fn2
It has long been established that when a defendant obtains a reversal of his or her conviction on the basis of evidentiary insufficiency, the Double Jeopardy Clause bars a retrial. Burks v. United States, 437 U.S. 1, 18, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). This is so because a reversal on the ground of insufficient evidence is the constitutional equivalent of an acquittal. Id.
Appellant maintains, contrary to the government's argument, and we agree, that this court did not previously decide the sufficiency issue at the time of the remand. Although evidentiary sufficiency was addressed in appellant's initial brief in his direct appeal and in the government's motion to vacate and remand, the motions division did not address the issue in its per curiam order. *fn3 Nor did the government request that the motions division do so. The government's argument that the motions division implicitly made such a finding is contrary to the established manner in which the court addresses contentions that are put before it. When the court addresses a sufficiency claim, it does so explicitly. *fn4 See, e.g.,Lyons v. United States, 606 A.2d 1354, 1361 & n.16 (D.C. 1992); Kind v. United States, 529 A.2d 294, 296 n.6, 302 (D.C. 1987) (per curiam), rev'd on other grounds, White v. United States, 613 A.2d 869 (D.C. 1992) (en banc); Butler v. United States, 481 A.2d 431, 442 (D.C. 1984), cert. denied, 470 U.S. 1029, 84 L. Ed. 2d 786, 105 S. Ct. 1398 (1985). That another court has taken a different view, see United States v. Bizzard, 674 F.2d 1382, 1386 (11th Cir. 1982), is, of course, not dispositive, particularly in light of the fact that the Eleventh Circuit went on to decide the sufficiency question for itself. For the reasons noted by the motions Judge, see (supra) note 2, in the instant case the motions division may have concluded that there was no need for it to decide evidentiary sufficiency until it was clear that the government intended to proceed with a new trial. *fn5 It would generally be preferable, for reasons of judicial economy, for the court to address the sufficiency of the evidence before remanding the case for a new trial. Nonetheless, as the government acknowledged at oral argument, the court has jurisdiction to decide the sufficiency issue in the instant appeal. Abney v. United States, 431 U.S. 651, 662, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977); Green v. United States, 584 A.2d 599, 601 (D.C. 1991); see Lyons, supra, 606 A.2d at 1361 n.16 ("we are obliged to address [appellant's] sufficiency argument because, if the evidence were insufficient, the Double Jeopardy Clause would bar her retrial") (citing Richardson v. United States, 468 U.S. 317, 325, 82 L. Ed. 2d 242, 104 S. Ct. 3081 (1984), and Burks, supra, 437 U.S. at 18).
Turning to the merits, appellant makes two claims of evidentiary insufficiency: first, that there was insufficient evidence that appellant acted with "guilty knowledge" that the principal, John Watson, was committing a robbery when appellant picked up Watson and James Jones and drove away; and second, that there was insufficient evidence that appellant knew or should have foreseen that a gun would be required to commit the robbery. We find neither contention persuasive and hold that the evidence at appellant's first trial was sufficient to support his conviction of armed robbery. *fn6
In reviewing for sufficiency of the evidence, the court must examine the evidence in the light most favorable to the government and inquire whether a reasonable person could find guilt beyond a reasonable doubt. See Parker v. United States, 601 A.2d 45, 51 (D.C. 1991). 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 finding. Taylor v. United States, 601 A.2d 1060, 1062 (D.C. 1991) (citations omitted). Thus, to prove that appellant aided and abetted the armed robbery of the decedent, the government was required to establish beyond a reasonable doubt that an armed robbery had been committed and that appellant knowingly participated in the robbery. Prophet v. United States, 602 A.2d 1087, 1092 (D.C. 1992); D.C. Code § 22-105 (1989). Viewing the evidence in the light most favorable to the government, we conclude that a jury could reasonably find that appellant knowingly participated and assisted in the robbery.
The facts, briefly stated, are as follows. The decedent worked at a grocery and liquor store at 2155 Pennsylvania Avenue, N.W. that was owned by her husband. On Thursdays and Fridays, the decedent regularly brought large amounts of cash to the store in a brown handbag for the store's check-cashing service. All of the employees at the store knew about this practice, and one of the store's cashiers, who was friendly with appellant and his friend, Ms. Bailey, talked about this practice with Ms. Bailey.
On the day of the armed robbery, the decedent arrived at the store around 10:20 a.m., parking her car in a nearby parking lot on Pennsylvania Avenue that stretches through to K Street. Shortly thereafter, two delivery men saw the decedent in the parking lot struggling with a large man who had a gun. Both delivery men heard a shot, which directed their attention to the struggle, and then saw the man fire a second shot at the decedent. A third witness heard two shots, saw two men walking speedily through the parking lot toward K Street, and then saw a white General Motors four-door sedan come around the corner onto K Street and pick up the two men who were described as "fleeing the scene." The car headed east toward 21st Street and then turned right, ...