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PAGE v. U.S.

August 6, 1998

HERMAN PAGE, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, JOHN H. SUDA, J.

Before Terry, Farrell, and King, Associate Judges.

The opinion of the court was delivered by: King, Associate Judge.

Herman Page was convicted following a jury trial of first-degree felony murder (robbery), robbery, second-degree burglary, and two counts of second-degree murder. He appeals from the judgments of conviction (No. 94-CF-1142), and from the denial of a motion to vacate the judgment filed pursuant to D.C.Code § 23-110 (1996 Repl.) (No. 97-CO-246). Although Page raises a number of issues in these appeals, only two require discussion because they present issues of first impression. Specifically, Page contends that the trial court erred: (1) by using the same robbery as both the predicate crime for the felony murder charge, and as the aggravating factor in sentencing Page to life without parole; and (2) in ruling that the government's notice of intent to seek a sentence of life without parole met statutory and constitutional [715 A2d Page 891]

requirements. *fn1 We conclude that there was no error on the part of the trial court, and accordingly affirm both the judgments of conviction and the denial of the motion to vacate. However, we remand the case to the trial court to permit that court to vacate those convictions that merge with other convictions.

I.

Albert Beverly owned an apartment building and adjacent beauty salon in Southeast Washington. On Saturday, July 3, 1993, Beverly ejected Page from one of the apartments, where he was staying as a guest of tenant Robert Arbuthnot. Beverly had earlier complained to the police that Page was "disorderly" and "didn't belong [there]."

Vincent Kenney testified that he met Page at 8:00 p.m. that evening. According to Kenney, Page was agitated over the fact that Beverly had ejected him and would not let him return to retrieve his belongings. As the two men talked, Page repeatedly ran to a spot from which he could see the open door of the beauty salon and Beverly within. Before parting ways, Page told Kenney that he was "going to get [Beverly] for putting him out" of Arbuthnot's apartment.

Later that evening, Beverly was brutally murdered in the beauty salon. The medical examiner testified that Beverly had been beaten and kicked to death, and that his injuries were of a type and severity normally seen in "high-velocity motor vehicle accidents." The body, when discovered, lay in a large pool of dried blood, and large blood spatters were found on the wall behind the body.

Kenney testified that he saw Page again at 9:45 that night, with "blood all over his clothing and his hands." Page told Kenney that "[h]e beat [Beverly] in the head." Samuel Redman testified that, on the same night, he and Page entered the closed salon at Page's suggestion in search of property they could sell. He testified that upon entering he saw a body on the floor in "a whole lot of blood."

Beverly's body was not discovered until the following Tuesday, July 6. The same day, numerous items from Beverly's salon were found in Robert Arbuthnot's apartment — a television, a space heater, two hairdryers, and a drawer containing combs and brushes. Police also found a rent check from hairstylist Annie Mae Gerald made out to Beverly, and Beverly's keys and identification card. Ms. Gerald had left the rent check in an agreed-upon hiding place, under some jars in a drawer in the salon, before she left the salon the previous Saturday. Page's fingerprints were found on all these items, and at the crime scene.

Following a jury trial, Page was convicted of first-degree murder/felony murder (robbery), second-degree burglary, robbery, and two counts of second-degree murder. *fn2 Page [715 A2d Page 892]

was given consecutive sentences of life imprisonment without possibility of parole ("LWOP") for the felony murder conviction, and five to fifteen years imprisonment for the second-degree burglary conviction, to be served concurrently with sentences of five to fifteen years for the robbery conviction, and two terms of fifteen years to life for the two second-degree murder convictions.

II.

Page contends that the robbery, which was an element of felony murder, cannot also be used as the aggravating factor to raise his sentence to life imprisonment without parole under D.C.Code §§ 22-2404(a) and 22-2404.1 (1996 Repl. & 1998 Supp.). Page argues that using the robbery offense for both purposes amounts to "double counting" which violates the eighth and fourteenth amendments, because "a trial court could find that every [felony murder] would fit the definition under § ...


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