Appeals from the Superior Court of the District of Columbia. (Hon. Frederick H. Weisberg, Trial Judge).
Before Steadman, Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Nakia A. (Tony) Roy and Steve B. Ross were convicted at a joint trial of armed robbery, *fn1 possession of a firearm during the commission of a crime of violence (PFCV), *fn2 and carrying a pistol without a license (CPWOL). *fn3 Ross was also convicted of obstruction of Justice. *fn4 On appeal, Roy contends that the trial Judge erred in denying his motion for judgment of acquittal (MJOA) on all charges, and he alleges related instructional error. *fn5 Ross claims that the Judge erred in denying his motion to sever offenses.
We hold that the evidence was insufficient as a matter of law to support Roy's convictions of armed robbery and of PFCV. We affirm Roy's CPWOL conviction and all of Ross' convictions.
This case had its genesis in an attempt by law enforcement officers to purchase a handgun through the use of a paid informant. The proposed undercover buy went awry when the prospective purchaser was robbed of his money instead.
On October 8, 1991, Peppi Miller, who was later to become the principal prosecution witness, was arrested on 10th Place in southeast Washington, D.C. and charged with possession of cocaine with intent to distribute it. Six weeks later, on November 20, 1991, Miller was working as an informant for Agent Mark Potter of the Bureau of Alcohol, Tobacco and Firearms (BATF). With Potter's advance knowledge, Miller undertook to arrange the undercover buy which generated the events underlying this case.
Miller testified that during the mid-afternoon of November 20, on 10th Place, S.E., he met with Tony Roy, whom he had known for several years, to discuss the purchase of a handgun and ammunition. Roy told Miller that he should come back later with $400, and that Roy would then have the weapon and two ammunition clips. Miller left the scene and met with Potter and two FBI agents. These men gave him $400 in bills and equipped him with a tape recorder and a transmitter.
At approximately 6:40 p.m., Miller returned to the scene and found Roy, who was with several other people. Miller activated his tape recorder and approached Roy to discuss the proposed purchase. Roy asked Miller if he had brought the money, and Miller showed him the bills. Roy then explained that Miller would have to wait for "Steve" , who was to bring the handgun.
Ross arrived some 45 minutes later, but he and Roy left with another man, apparently to remedy problems with Ross' car. The three men subsequently returned, and Miller asked Roy "what was up." Ross, meanwhile, walked towards the grounds of a nearby school. Roy told Miller that Steve had brought the handgun and that Miller should "go talk to Steve and get it from Steve."
Miller followed Ross through a gate into the school yard and down some steps to a location approximately thirty yards from the entrance. Roy remained in the vicinity of a blue trash can which was near the gate. Miller caught up with Ross, and at trial he described the ensuing events as follows:
He said, "What's up?" I said, "What's up?" He said, "you got the money?" I said, "Yes, I have the money." And then, I pulled the money out my pocket, and he said, "Is it 350?" I said "No, it's 400." And then he said, "Count it," so I started counting it, and then he gave me the gun, and when he gave me the gun, I got ready to give him the money, and then he asked for the gun back. So, right then and there, I gave the gun back, and he said, "I really don't want to sell it right now."
So, then, I was, like you know, "Tony," *fn6 you know. I was calling him, "Tony" you know, to see what was going on, and then he put the clip into the chamber, pulled the round back, pointed the gun in my face and said for me to drop the money.
... I asked him why he was doing this.
... Then he said that he felt as though I had stuck up his people, and that he didn't want to tell me this. He said, "Motherfucker, you stuck my peoples up."
... Then I said, "No I didn't do that --" I had, "... I never had a gun to do that."
... And then he told me to run.
... At that time, he had told me to put the money on the ground.
... Then I started to back up, and then he said, "I'm not playing with you, I told you." He said, "Better yet, jump the fence," so I jumped the fence.
... Then I gave off the distress signal ... Ace of Spades ... and gave a description of the clothes that he was wearing.
At that point, I started walking toward Tenth Place by the back of the school.
Officers promptly responded to Miller's distress signal. Within two minutes, they had apprehended Roy, Ross, and several other individuals who were in the area. Roy and Ross were standing approximately five feet apart near the entrance to the school at the time of their capture. The officers recovered $600 in cash from Ross' front pants pocket; bills totaling $400 were bundled separately from the other money, and a BATF agent testified that these bills were in the same denominations ...