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Ulmer v. U.S.

October 27, 1994

KEVIN D. ULMER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia. (Hon. Harriett R. Taylor, Trial Judge)

Before Wagner, Chief Judge, Ferren, Associate Judge, and Kern, Senior Judge.

The opinion of the court was delivered by: Kern

KERN, Senior Judge: A jury convicted appellant of armed robbery, D.C. Code §§ 22-2901, -3202 (1989 Repl. & 1993 Supp.); first-degree felony murder while armed, id. §§ 22-2401, -3202; and other related offenses *fn1 arising from his fatal stabbing of the decedent in the latter's home and his subsequent taking of the victim's automobile and various personal items. Appellant contends the trial court committed reversible error in refusing to instruct the jury under the particular evidence presented on larceny, a lesser-included offense of robbery, and therefore his convictions for armed robbery and felony murder must be reversed. We affirm.

I. THE TRIAL

A. The Prosecution Case

In May of 1990, police found Charles Coats dead in his apartment at 252 56th Street, Northeast in the District, wearing only his socks and a prophylactic. Coats had been stabbed to death with a knife. The police stopped and questioned appellant, who was found sitting in the victim's car approximately six or seven blocks from the crime scene. The police discovered that appellant was wearing the victim's jewelry and he also possessed other personal items which were later identified as the victim's property. *fn2 The police arrested appellant for unauthorized use of a vehicle. During a post-arrest interview with a police detective, appellant stated that he had sexual relations with Coats a number of times prior to the stabbing.

A government witness, appellant's brother, testified at trial that on the afternoon of April 30, 1990, appellant announced his plan to rob and kill a "fag" whom he had known. Appellant also told his brother that he would use a knife to kill this person because he was unable to obtain a gun. After the brother declined appellant's request to assist in this criminal scheme, appellant went to a friend's house where he acquired a knife. Appellant told his brother that he would call the person with whom he was having sexual relations and ask for a ride in his car. Approximately twenty minutes after appellant had made the telephone call, the brother observed him ride away in a white car, driven by another man. The brother also testified that when he saw appellant later that night, appellant told him that he stabbed the victim to death and had taken the victim's jewelry and other personal items.

B. The Defense Case

In his defense, appellant testified that he stabbed Coats in self-defense and then, as an afterthought, took his property in order to make the scene appear as if Coats had been the victim of a robbery. Specifically, appellant stated to the jurors that on the evening of April 30, 1990, he engaged in one sexual act with Coats in exchange for money, but declined the victim's request to perform another type of sexual act. Appellant further testified that Coats then became violent and threatened him with a kitchen knife, demanding that he perform this particular sexual act. According to appellant's testimony, a struggle ensued between the two men at which time appellant wrestled the knife away from Coats. Then, appellant claimed to the jury that the victim began strangling him and that in defending himself, he stabbed Coats with the knife. Appellant further explained to the jurors that he took the victim's property in order to create the appearance that Coats was the victim of a robbery.

C. The Defense Request for a Larceny Instruction

At the close of the evidence and during the Discussion with the trial court on its charge to the jury, defense counsel requested the trial Judge to instruct the jury on self-defense and larceny as a lesser-included offense of robbery on the theory that if the jury believed appellant had formed the intent to take the victim's property subsequent to his stabbing the victim, then he committed the crime of theft and not robbery.

The trial court instructed the jury on self-defense in relation to the murder charge, but refused to instruct the jury on larceny as a lesser-included offense of robbery. The Judge reasoned that the government was not required to prove that the force used in a robbery was motivated by a specific intent to steal, but only that appellant took the victim's property with the specific intent to steal the items. Appellant bases his appeal from the jury's verdict on this ruling.

II. THE JURY INSTRUCTION GIVEN

The sole issue on appeal is the trial court's refusal to instruct the jury on larceny as a lesser-included offense of robbery. A jury instruction on a lesser-included offense is warranted when "(1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge." Hebron v. United States, 625 A.2d 884, 885 (D.C. ...


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