Appeals from the Superior Court of the District of Columbia. (Hon. Robert I. Richter, Trial Judge)
Before Ferren, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
Farrell, Associate Judge : These felony murder convictions, arising from a vehicular homicide committed during the asportation (or "carrying away") phase of a robbery and flight from the police, require us to consider the sort of causal link the government must demonstrate between the underlying felony and the killing in circumstances where the defendant has reasons in addition to the robbery to want to escape apprehension. Appellants contend primarily that the trial court's instructions to the jury allowed conviction upon too attenuated a causal connection between the robbery and homicide. We hold, to the contrary, that on the facts of this case involving a chase which began only minutes after the robbery assault took place, the instructions adequately insured that, before convicting, the jury found a significant motivational link between the defendants' desire to complete the robbery and the flight resulting in the homicide; and that no more was required. As we reject appellants' remaining contentions as well, we affirm all of their convictions.
At approximately 4:00 p.m. on December 16, 1991, Katerine Childs was walking west on Kennedy Street, N.W., toward a bus stop at the corner of Kennedy and Fourteenth Streets. She noticed a Jeep Cherokee, which she later described as "two-toned," driving slowly along Kennedy Street. As she walked, she heard footsteps behind her. According to an ambulance driver who witnessed the incident, a black male wearing a charcoal-gray coat grabbed twice for Ms. Childs' purse. Instinctively, she reached for her purse which fell into her hand as the shoulder strap fell to the ground.
Turning around, Ms. Childs saw a black male running away from her diagonally across Kennedy Street to the same Jeep Cherokee, in which another black male was waiting behind the wheel. The suspect opened the passenger door, held out his hands palms up, as if to show that his hands were empty, and got into the jeep, which drove away south on Fourteenth Street. Ms. Childs noted the jeep's license plate number as it pulled away. The ambulance driver also noted the license plate number and read it to his partner who wrote it down on a napkin. The two men spotted a policeman and reported the attempted robbery, giving the napkin with the license plate number to the officer. *fn1 He found Ms. Childs near the scene and broadcast a lookout over the police radio using Ms. Childs' and the witnesses' descriptions of the jeep and suspects.
Minutes later, between 4:05 and 4:10 p.m., Theresa Conroy arrived at her home at 1826 Varnum Street, N.W., and was helping her children out of the car when a gray Jeep Cherokee pulled up behind her. A black male wearing a green army-fatigue jacket jumped out of the passenger side of the jeep and approached her. When he appeared to reach into his coat to retrieve a gun, Ms. Conroy started to hand over her purse, whereupon the man grabbed it and pushed her back. He jumped into the jeep and the suspects drove east on Varnum Street at a normal rate of speed. Ms. Conroy called 911 and reported the robbery.
At about 4:15 p.m., Officer Bruce Nixon of the United States Park Police was driving north on Seventeenth Street, N.W., when he saw a Jeep Cherokee drive through an intersection ignoring a stop sign. Nixon noticed that the driver was a black male wearing a green shirt or jacket, but was unable to get a good look at the passenger. Intending to make a traffic stop, Nixon followed the jeep, turned on his emergency lights, and sounded his siren. The jeep did not stop but instead ran another stop sign and turned left onto Mount Pleasant Street. When Nixon sounded the siren again, the two men in the jeep turned around, looked at him, and accelerated as they turned onto Park Road. Nixon reported the chase to his dispatcher.
The chase ended when the jeep turned right onto Sixteenth Street into congested traffic and sideswiped a car that was stopped at a traffic light. It then careened into a bus stop where it struck Juan Zuluaga and his four-year-old sister, Anevia Puerta. The girl eventually died as a result of head injuries, and Zuluaga was seriously injured.
An unmarked Metropolitan Police car had also observed the chase and tried to block the jeep on Park Road, backing out of the way when it became apparent that the jeep was not stopping. Officer John Farr, one of three plain-clothed officers in the car, jumped out of the car and ran around the corner in time to see appellants flee from the jeep following the accident. Farr and other witnesses saw two men jump out of the jeep, one wearing a green army-fatigue jacket and the other a dark-colored jacket. A foot chase ensued. As they fled, the men discarded their coats, which the police recovered. Appellant Scott was apprehended as he was attempting to hide in a pile of lumber. He had eight dollars in his hand. Appellant Johnson was caught approximately fifteen minutes later coming out of a building. Ms. Conroy positively identified him as the man who had taken her purse.
Inside the jeep, which had been stolen four days earlier from a parking lot, police found scattered on the floor of the front passenger side a purse and its contents, which Ms. Conroy identified as belonging to her. Scott's fingerprint was lifted from the left front door of the jeep. Johnson's fingerprint was lifted from an envelope inside the jeep.
At trial, the government's theory was that Johnson was the driver of the vehicle and Scott the passenger at the time of the homicide. *fn2 The instructions given to the jury permitted it to convict Johnson either as principal (the driver) or as aider and abettor (the passenger), but allowed Scott's conviction only on the theory of aiding and abetting.
We first consider the claims of instructional error in regard to the felony murder convictions. Johnson contends that the instructions were defective in two respects: first, they "erroneously took from the jury the question whether there was an unbroken chain [of events] between the robbery and the fatality"; and second, they erroneously allowed the jury to convict him "if it found that the robbery played even the most minor role in causing death." Scott joins in these contentions, arguing that an attenuated causal connection between the robbery and killing was particularly harsh in permitting his conviction for felony murder as an aider and abettor.
As relevant here, the trial Judge first instructed the jury on the attempted robbery of Ms. Childs and the robbery of Ms. Conroy, the latter forming the basis of the felony murder convictions. One element of robbery, the Judge told the jury, was that the defendant, having taken the property, must have "carried it away," but "the least removal of the thing taken from the place it was taken satisfies the requirement of carrying away." The Judge then turned to felony murder, instructing that the government had to prove beyond a reasonable doubt both that the defendant inflicted an injury or injuries on the deceased from which the deceased died, and that the injuries "were inflicted at the time that he was perpetrating or attempting to perpetrate the robbery of Ms. Conroy." To establish the second element, it was "necessary that the defendant robbed or attempted to rob Ms. Conroy and that the defendant inflicted the fatal injuries in the course of that robbery." The Judge defined "in the course of" in terms of two specific findings the jury had to make to convict. It first had to determine whether the robbery "was ongoing at the time the injuries were inflicted":
I instruct you as follows: The offense of robbery requires that the property taken be carried away. The offense continues until such time as the property has been removed to a safe location and the defendant has effected his escape with the property.
In order to find that the injuries occurred in the course of the robbery, the Government must prove beyond a reasonable doubt that at the time the car fled from the police on Park Road, the defendant was still in the process of transporting the proceeds from the area of the crime to avoid apprehension and detection of the property. [Emphasis added.]
The Judge continued, however, by stating:
It is not enough to show only that the robbery was ongoing. It must also be shown that the specific actions leading to the fatal injuries were part of the defendant's efforts to successfully complete the robbery and were motivated at least in part by the defendant's desire to avoid apprehension with the stolen property. [Emphasis added.]
The Judge gave the last-italicized instruction because of what he considered "the unusual circumstances of this case," which involved both a "break in time" -- the five to ten minute interval between the robbery assault and appellants' sighting by the police -- and the existence of "other possible causes" for appellants' flight besides the robbery, viz., their possession of a stolen vehicle and their having just ignored two stop signs. While recognizing that the defendant's intent or motivation is "not a specific normal requirement of felony murder," the "unique facts of this case" convinced the Judge that unless the jury could "find that [the defendants] were running from the police [at least in part] because of ...