Before Steadman and Farrell, Associate Judges, and Pryor,
The opinion of the court was delivered by: Steadman, Associate Judge:
DeAngelo "Man" Green and Thomas "Bernard" Landon, together with a third individual who was tried separately, *fn1 plotted and carried out on the night of April 10, 1991, a plan to rob and kill a local drug dealer and, in the process, seriously wounded the drug dealer's associate. Their first trial resulted in a mistrial when the jury was unable to reach a verdict. On retrial, each appellant was convicted of first-degree premeditated murder while armed and thirteen other counts. *fn1
Both appellants forcefully argue that the trial court erred in excluding expert testimony about the reliability (or lack thereof) of eyewitness identifications. Appellant Green further contends that the trial court erred in admitting evidence of an eyewitness's pretrial identification from a photo array where the witness could not say which of two photos (picked from an array of ten photos) was Green. Appellant Landon further contends that the trial court gave an erroneous jury instruction on the elements of conspiracy. *fn2 We find no basis for reversal in any of the appellants' contentions. We remand solely for the purpose of allowing the trial court to vacate certain merging convictions and re-sentence accordingly.
The facts, as the jury could reasonably have found them, are somewhat complex and involve a number of individuals, We therefore break down the following statement of facts into smaller, roughly chronological units for greater ease of reference.
In late March or early April of 1991, appellants were overheard discussing Green's plan to rob and kill a drug dealer, Juan McWeay. [718 A2d Page 1046]
Anna Rose overheard such a conversation in the living room of her apartment, which was located in the same building as an apartment shared by Landon's cousin, named John McNeil, and Green's cousin. As Rose recalled, Green explained to Landon that they should order cocaine from McWeay and then rob him when he tried to deliver the drugs. Rose noticed two guns on her kitchen table and asked about them. Green explained that one was a "9 millimeter, and the other one was a 357," and that he intended "to use the 9 millimeter to kill [McWeay] because that had more power." Green added that "if the white boy was with him, he had to be killed too." Landon expressed his agreement with the plan by saying, "Yes, Man, that's the way to do it. We can do it that way."
A few days later, the appellants returned to Rose's living room with Grant Moctar to continue their discussion. As they talked, Rose recalled, McNeil knocked on her door to tell Green that McWeay was waiting downstairs. Green then left the apartment. Through her window, Rose saw him confer with McWeay near McWeay's white Corvette. Green returned to the apartment and announced that McWeay agreed to "score him an eighth of cocaine." Landon replied, "[T]hat's good. At least we'll be able to get to him." Green suggested that they conceal their faces with black masks when they robbed McWeay, and both Landon and Moctar agreed. They would have to be prepared to kill McWeay during the robbery, Green reminded the others, to which Landon replied, "Yeah, Man, that's the way it has to go." Two other witnesses, Donald Barkley *fn3 and Ronald Pinkney, heard Green explain his plan to Landon on other occasions, but they did not hear Landon say anything in response.
B. The Robbery and Kidnapping of Juan McWeay.
On the night of April 10, 1991, Moctar enlisted a sixteen-year-old friend, Rodney Givens, to drive Moctar and the appellants from a gas station in Montgomery County, Maryland, to the District of Columbia. Moctar and the appellants offered to pay for gasoline in exchange for the ride. The appellants rode in the back seat of Givens's beige Oldsmobile and directed him to another gas station at the corner of Sherman Avenue and Harvard Street, N.W. Givens and Moctar stayed in the car while the appellants stepped out for a few minutes.
Meanwhile, Barkley drove his mint green 1991 Chevrolet Blazer north on Sherman Avenue toward Harvard Street. Barkley heard someone call out his name and saw Landon hail him from the curb. Barkley pulled over near the gas station at the corner of Sherman and Harvard, and both appellants approached the Blazer. Barkley asked Landon for some cocaine. Landon replied that he did not have any, but that he expected to get some soon. Landon elaborated that he and Green "were waiting for Juan and . . . were going to rob him." Landon also invited Barkley to stay and "[w]atch my work." If Barkley would agree to "wait and drop them at home," Landon promised, then "they would give [him] some cocaine." Barkley agreed and parked on the opposite side of Sherman Avenue, where he waited with his passenger, Robert Brown. The appellants returned to the back seat of Givens's Oldsmobile.
Within ten minutes, McWeay's Corvette pulled into the gas station. McWeay rode in the passenger seat, and Ralph Cherrico drove. Cherrico, who is white, appears to have been the "white boy" Green expected to accompany McWeay. The appellants and Moctar again got out of the Oldsmobile, walked toward the Corvette, and removed McWeay. There was a brief scuffle outside the Corvette. At some point, Green ran to Barkley's Blazer, displayed a nine-millimeter handgun, and demanded the vehicle. Barkley and Brown surrendered the Blazer and Green drove it into the gas station. Green hopped out of the Blazer, forced McWeay into Givens's Oldsmobile, got into the car himself, pointed a gun at Givens, and ordered him to drive off. Givens heard McWeay plead, "[D]on't kill me," as Givens drove back into Montgomery County, Maryland. Green [718 A2d Page 1047]
told Givens to stop at a location near Landon's apartment. Once there, Green took McWeay out of the car and told Givens to leave.
C. The Kidnapping of Cherrico and the Burglary of His Apartment.
Back at the gas station, Moctar had climbed into the passenger seat of the Corvette, displayed a gun, and demanded drugs or money from Cherrico. Cherrico said that he had neither, and Moctar ordered him to drive off. As Cherrico pulled out of the gas station, he was passed by the beige Oldsmobile carrying McWeay in the back seat. Cherrico also saw a Blazer following him in the rear view mirror; Barkley confirmed that someone driving his Blazer followed the Corvette out of the station.
Cherrico drove to his own apartment near 9th and M Streets, N.W., because he kept cash there with which he hoped to pay off Moctar. The Blazer parked behind Cherrico, and, although Cherrico testified that he never got a good look at the driver, he described the driver as a dark-skinned black man who followed him and Moctar upstairs to the apartment. Moctar hid his gun in his jacket as they passed the building's security guard. All three men entered Cherrico's apartment, and Moctar again demanded drugs or money. Cherrico gave Moctar $850 cash. Moctar continued to demand more money or drugs and threatened to kill Cherrico. Meanwhile, the driver of the Blazer went from room to room, apparently looking for loot. Moctar and the driver of the Blazer then escorted Cherrico out of the apartment and back into the Corvette. When they left, Cherrico noticed that the apartment was in its normal condition.
D. The Mayhem and AWIKWA.
Moctar ordered Cherrico to drive into an alley and, once again, they were followed by the Blazer. When both vehicles reached the alley, Moctar got out of the Corvette and ordered Cherrico to get out, too. The driver of the Blazer also had stepped out of his vehicle and into the alley and approached Cherrico. At around 12:45 a.m. on April 11, 1991, Moctar shot Cherrico in the head. A police officer in the vicinity of 14th and Newton Streets, N.W., heard the shot and promptly responded to a radio run for a shooting in the alley behind the 1300 block of Kenyon Street, N.W. He entered the alley and found Cherrico bleeding from a gunshot wound to the head. The officer followed a trail of blood from Cherrico to a .380 caliber shell casing.
Cherrico survived the shooting, but all four of his limbs were affected by paralysis and he has trouble speaking and reasoning. Within two years he was able to walk again, albeit with a limp, but he lost the ability to perform basic arithmetic and, although he was right-handed before the shooting, he could no longer write with that hand. At trial, a doctor testified that Cherrico would never regain the full use of his arms and legs and that he would always have difficulty speaking and performing cognitive functions.
At approximately 1:00 a.m. on April 11, a neighbor heard banging at the door to Cherrico's apartment. The neighbor looked through his peep hole and saw three black men in the process of entering the apartment. The neighbor was certain that Cherrico was not among the men. Police investigators later took photographs of the apartment showing that it had been ransacked, including a couch. According to Cherrico, McWeay had stashed a package of cocaine in that couch a few days earlier. Cherrico later testified that he had not told his captors about the stash when they first demanded drugs or money because he was so frightened that he forgot about it.
F. The Death of Juan McWeay.
An officer with the Metropolitan Police Department ("MPD") Mobile Crime Laboratory pulled into a gas station at the corner of Georgia and New Hampshire Avenues, N.W., at around 2:30 a.m. on April 11. He found McWeay's body lying face up near a bank of pay telephones. *fn4 McWeay had been shot [718 A2d Page 1048]
three times in the back. The receiver to one of the telephones was dangling off the hook, and the officer noticed a bullet hole or impression in the telephone unit. The officer found a total of four nine-millimeter shell casings and two nine-millimeter slugs near McWeay's body.
G. The Chase by the Police.
Some forty-five minutes before McWeay's body was discovered, Special Agent James Cooke of the Bureau of Alcohol, Tobacco and Firearms was driving a patrol van with an MPD officer as part of a combined federal-local law enforcement task force. Cooke saw a man he later identified as Landon walk out of an alley and cross the 400 block of Ingraham Street, N.W., to a green Blazer, where two other men stood at the open driver- and passenger-side doors. Cooke noticed Landon because he resembled a suspect in an unrelated shooting. The three men entered the Blazer and drove off. Cooke followed the Blazer through the Northwest and Northeast sections of Washington. After Cooke activated the van's emergency lights, the Blazer stopped for a moment on Ogle-thorpe Street, N.E. Later that morning, police returned to that portion of the street and found the nine-millimeter semi-automatic Beretta pistol that killed McWeay.
The Blazer sped off again, and the chase proceeded into Maryland. At one point, the Blazer's front passenger, who wore a distinctive leather jacket and brandished a pistol, opened his door and nearly fell from the vehicle. The pistol fell to the ground as Landon helped the passenger back into the Blazer. Then the two of them jumped from the Blazer and fled by foot. They were pursued by Agent Cooke's partner, the MPD officer, but they escaped. Cooke continued to follow the Blazer until its driver also jumped out and escaped in the same direction as the other two suspects. Cooke then returned to where the pistol fell, and he recovered the .380 caliber semi-automatic pistol that was used to shoot Cherrico. Other officers searched the area where the three suspects fled and recovered a leather jacket, which Cooke identified as the same jacket worn by the Blazer's front passenger; at trial, Barkley identified the jacket as the one he believed Green was wearing that night. The jacket pockets contained McWeay's pager, the keys to McWeay's Corvette, and Cherrico's gold herringbone necklace, which he kept in a drawer in his apartment. Police technicians recovered the appellants' fingerprints from the inside of the Blazer, but they could not recover fingerprints from either of the guns.
After Green had taken his Blazer, Barkley walked with Brown down Sherman Avenue. Brown called his employer and received a ride home from him, while Barkley walked to McNeil's apartment *fn5 where he waited until the next morning. At about 6:00 a.m., Green and Moctar arrived at the apartment. Barkley asked what happened to his vehicle. Green told him to report it stolen, and Barkley did so. That night, however, after Barkley saw a television news broadcast reporting McWeay's death, he went to the police and gave a written statement of what he knew about the planned robbery. From the MPD Homicide Branch downtown, Barkley telephoned Landon to ask what happened to the Blazer; a detective monitored this call. Landon said not to worry about the Blazer and promised to give Barkley money. Landon added, "Just don't say anything to the police."
Between 9:00 and 10:00 p.m. on April 11, Ronald Pinkney arrived at Landon's apartment in suburban Maryland. Landon paid Pinkney $20 to don a pair of gloves and remove the license plates from McWeay's white Corvette, which was parked outside. Pinkney broke the license plates into small pieces and disposed of them in Landon's kitchen trash can. Green telephoned Landon's apartment at least twice during Pinkney's [718 A2d Page 1049]
visit. Pinkney overheard Landon complain to Green that his legs were scarred from jumping out of the Blazer and that he was tired from running from the police. Pinkney's recollection was that Landon told the following story: Green shot Cherrico in the head, and then Landon and Moctar drove McWeay in the Blazer to an apartment, where Landon shot McWeay and stole a kilogram of cocaine. Pinkney also heard Landon say that Moctar wiped their fingerprints off the guns before throwing them out of the Blazer.
Using the information supplied by Barkley, the MPD requested the assistance of Montgomery County authorities to stake out Landon's apartment building. Montgomery County police arrested Green and Pinkney outside the building on April 12, 1991. Landon was arrested later that day. McWeay's Corvette was still parked outside the building, and police found McWeay's broken license plates in Landon's kitchen trash. Police also recovered over ninety grams of crack cocaine, valued at $4,500, from a broiler pan in Landon's kitchen.
II. GIVEN'S IDENTIFICATIONS OF APPELLANT GREEN.
In April of 1993, about one week before appellants' first trial, Givens was shown an array of ten photographs and asked to identify the man whom he drove with McWeay away from the Sherman Avenue gas station. Givens selected two photos from the array and stated that one of the two was the perpetrator. One of these pictures depicted appellant Green.
In a voir dire before the first trial, Givens stated that he did not see in the courtroom either of the men who rode in his car with Moctar, even though both appellants were present. During direct testimony in the first trial, Givens was asked whether he saw either of the men and again said that he did not. Over objection, however, Givens testified about his selection of the two photos from the array.
Still at the first trial, counsel for Green cross-examined Givens about his failure to identify the suspects during voir dire. When asked whether the appellants had been seated at the defense table during the voir dire, Givens craned his neck and responded that he "didn't see anybody sitting back there." The prosecutor, on redirect examination, suggested that something was blocking Givens's view from the witness box. At a bench conference, the trial judge confirmed that he, too, had observed Givens crane his neck in an effort to see the people seated at counsel table when asked to look in that direction by Green's lawyer. The trial court excused the jury and conducted a voir dire of Givens to determine where he was able to see from his seat in the witness box. When the trial judge asked Givens why he had "leaned forward and looked up and over the corner of the bench" during cross-examination, he answered, "To see who [defense counsel] was talking about." Givens explained that the only person he could comfortably see at the defense table was counsel for Landon. The trial court determined that the bench had blocked Givens's view of the appellants and allowed the prosecutor to try again to elicit an in-court identification on redirect examination. The jury returned to the courtroom. Givens then identified Green and explained his failure to do so on direct examination.
In the second trial, Givens again testified about the identification from the photo array. The prosecutor also asked him "to stand up and look around the courtroom and see if you see the person in this courtroom who told you to drive that car at gunpoint that night." Givens identified appellant Green. He was cross-examined extensively about his failure to identify Green in the earlier proceedings. The trial court also allowed the ...