Appeal from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Trial Judge)
Before Steadman, Farrell, and Glickman, Associate Judges.
Opinion for the court by Associate Judge Steadman.
Dissenting opinion by Associate Judge Glickman at p.[ ].
Steadman, Associate Judge: Appellant picked up and rode away on a bicycle that had fallen to the street while the true owner, wearing a bicycle helmet, and an assailant were struggling close by. He was convicted of robbery. On appeal, he argues that the trial court erred in refusing to instruct the jury on the lesser-included offense of theft and that the denial of his request for a continuance to retain new counsel on the eve of trial was an abuse of discretion. Finding no error on either basis, we affirm.
The standards for our review are well-established. "A lesser-included offense instruction is proper where (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge." Woodard v. United States, 738 A.2d 254, 261 (D.C. 1999) (quotation omitted). "This evidentiary requirement can be met in one of two ways: (1) where there is conflicting testimony on the factual issue, and (2) where the lesser included offense is fairly inferable from the evidence including a reconstruction of the events gained by accepting testimony of some or all of the witnesses even in part." Price v. United States, 602 A.2d 641, 644 (D.C. 1992) (quotations omitted). The lesser included instruction, however, is only required where, based on that evidence, "a jury could rationally convict on the lesser-included offense." Bright v. United States, 698 A.2d 450, 457 (D.C. 1997) (quoting Shuler v. United States, 677 A.2d 1014, 1017 (D.C. 1996)). Thus, "[w]here a verdict on the lesser offense would be irrational, or require the jury to undertake a `bizarre reconstruction of the evidence,' the instruction is not warranted." Boykins v. United States, 702 A.2d 1242, 1250 (D.C. 1997) (quoting Shuler, supra, 677 A.2d at 1017); see also Smith v. United States, 686 A.2d 537, 545 (D.C. 1996), cert. denied, 522 U.S. 839 (1997).
The definitions of the relevant crimes must, of course, also shape the analysis. An individual commits the offense of theft "if that person wrongfully obtains or uses the property of another with intent: (1) To deprive the other of a right to the property or a benefit of the property; or (2) To appropriate the property to his or her own use or to the use of a third person." D.C. Code § 22-3811(b) (1996). An individual commits robbery when "by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, [he or she] take[s] from the person or immediate actual possession of another anything of value." D.C. Code § 22-2901 (1996).
There is no dispute here that theft is a lesser included offense of robbery. Ulmer v. United States, 649 A.2d 295, 297 (D.C. 1994). Moreover, the appellant does not contest the sufficiency of the evidence for conviction of the greater charge of robbery. Under these conditions, the exclusion of a theft instruction would only be justified if "a verdict on the [theft] offense would be irrational, or require the jury to undertake a bizarre reconstruction of the evidence." Boykins, supra, 702 A.2d at 1250. Therefore, we examine the record to determine whether the evidence presented limited the rational conclusion of the fact-finder to either acquittal or conviction on robbery.
In this case, there was no eyewitness to the totality of the fast-moving relevant events. The key evidence came in through the testimony of the victim, Matthew Sawalick.*fn1 The "hard facts" to which he could testify about the event consisted of the following. On December 16, at 9:30 p.m., Sawalick was slowly riding his bicycle on P Street, N.W., near Dupont Circle. The street was crowded with pedestrians and cars. Suddenly, he was attacked from behind and pulled off his bicycle. He was dragged away from the bicycle and kicked, the attack lasting for less than a minute. As Sawalick struggled with his assailant, another man -- later identified as appellant -- picked up the bike, as it lay just a few feet from the two struggling men, and rode away with it down P Street. Sawalick broke free and gave chase, all the while yelling for help. A near-by police officer heard his cries and caught up with appellant on the victim's bicycle. The other individual, who had initiated the attack, was never identified or apprehended.
Sawalick acknowledged that as far as he could say for sure, he struggled only with the unidentified man, and that appellant never touched him. Both the assailant and the appellant approached from behind, and therefore he did not see whether the two approached together. Indeed, he said nothing of appellant's movements prior to the moment that appellant took the bike. Sawalick said that his bicycle helmet fell over his eyes for a time, which hindered his observation of events. The only direct link between the assailant and appellant was that, according to Sawalick, during the struggle, the assailant told appellant to"take the bike."*fn2
Clearly this evidence was sufficient for a conviction of robbery, drawing as we must all inferences in favor of the government, on the basis of the inference that the appellant and the unidentified assailant worked in concert. But in considering this evidence on the issue of the lesser-included offense, we must exercise these same considerations in favor of the appellant. In short, the question here is whether this evidence was also susceptible of a reasonable finding only of theft.
The defense theory of the case did not take serious issue with the hard facts presented by Sawalick. It was, in essence, that appellant came upon the scene seeing the two men struggling and the bicycle lying in the street. Appellant picked up the bicycle simply to remove it from the street. As Sawalick chased after him screaming, appellant fled in panic to escape Sawalick, not to steal the bike from him. If believed, this scenario, which did not require the presentation of any additional evidence, would result in an acquittal.
But as our case law indicates, the jury is not bound to accept in full the scenario presented by either side. Shuler, supra, 677 A.2d at 1017. Indeed, a defendant has the right to a lesser-included instruction warranted by the evidence even if it is inconsistent with the defendant's theory of the case. See Bostick v. United States, 605 A.2d 916, 917 (D.C. 1992). Here, the jury could have concluded that the best the evidence showed beyond a reasonable doubt was that appellant came upon two individuals struggling (one of them with a bicycle helmet), saw a bike lying close beside them, and seized the opportunity to take the bike for himself.
Prior to closing arguments, defense counsel requested an instruction on misdemeanor theft because of the undisputed evidence that Leak never assaulted the victim. Counsel argued that attacks on Sawalick's credibility allowed the jury to reasonably discredit his testimony regarding the assailant's purported instruction to Leak and the subsequent inference of a connection between the two men. The trial court denied the requested instruction. The court ruled that there was no evidence on which to support a finding of theft because the appellant was either "totally innocent" or an "aider and abettor in a robbery . . . [because] he [took] advantage of the forcible removal of the complainant from the bicycle." Thus, the trial court apparently concluded that even if no prior connection existed between assailant and appellant, the latter nonetheless was guilty of robbery in taking "advantage" of the assailant's use of force to acquire the property.
We need not decide here whether a conviction for robbery, whether as a principal committing the asportation portion of that offense or as an aider or abettor, can rest upon such a proposition. Rather, the question is whether the evidence could have supported a finding that, although appellant illegally possessed the bicycle, he neither participated in a robbery along with the unidentified assailant, nor acted as a principal of a robbery by snatching the bike from the immediate actual possession of the victim. Even if we assume that the appellant did not act in concert with the assailant, we conclude that a rational jury could not find that appellant's taking of the bicycle happened outside the "immediate actual possession" of the victim within the expanded meaning that our statute and case law have given both to the offense of robbery and to that component of the offense.
In distinct contrast to most jurisdictions, the District of Columbia's statutory definition of robbery includes the stealthy snatching of an item, even if the victim is not actually holding, or otherwise attached to the object, or indeed is unaware of the taking. "To satisfy the `force' requirement in a charge of robbery by stealthy seizure, the government need only demonstrate the actual physical taking of the property from the person of another, even though without his knowledge and consent, and though the property be unattached to his person." (Earl) Johnson v. United States, No. 97-CF-995, slip op. at 6 (D.C. July, 27 2000) (citations and quotations omitted). We have consistently and for many years given a broad meaning to the term "immediate actual possession," and have recognized that any taking from the area encompassed by that term is a robbery -- not simply larceny. Furthermore, such possession may continue for purposes of robbery even though the owner is prevented by force from effectively exercising that possession. See (Phillip) Johnson v. United States, 686 A.2d 200, 208 n.1 (D.C. 1996) ("`immediate actual possession' in the robbery statute . . . means `an area within which the victim could reasonably be expected to exercise some physical control'") (quoting United States v. Spears, 145 U.S. App. D.C. 284, 293, 449 F.2d 946, 955 (1971)); Head v. United States, 451 A.2d 615, 624 (D.C. 1982) (same); Rouse v. United States, 402 A.2d 1218, 1220 (D.C. 1979) ("a thing is within one's `immediate actual possession' so long as it is within such range that he could, if not deterred by violence or fear, retain actual physical control over it") (citing United States v. Dixon, 152 U.S. App. D.C. 200, 204, 469 F.2d 940, 944 (1972)); Spencer v. United States, 73 U.S. App. D.C. 98, 116 F.2d 801 (1940) (jury could reasonably find that defendant took wallet from "immediate actual possession" of victim while he was in bed with a prostitute and his trousers containing the wallet sat on a chair in the same room as unknowing victim). Indeed, in Spencer, the appellate court deemed "clearly correct" a trial court instruction that an item is in immediate actual possession of a person in circumstances where "if the complainant knew that his property was being removed from his clothes, such knowledge would likely result in physical violence or a struggle for possession of the property." 73 U.S. App. D.C. at 99, 116 F.2d at 802.
Here, among the evidence presented, there was no dispute that when appellant took the bike, Sawalick was approximately two feet away.*fn3 A bicycle lying two feet away from the owner is, undoubtably, within the victim's immediate actual possession as our cases have applied that term, at least where, as here, the owner is aware of the attempted taking in a setting of force and violence. *fn4 See, e.g., (Earl) Johnson, supra, No. 97-CF-995, slip op. at 6 ("taking [victim's] wallet from the ground, as opposed to [victim's] person" satisfied the elements of robbery); Giles v. United States, 472 A.2d 881, 884 (D.C. 1984) (evidence was sufficient to prove that property was taken from "immediate actual possession" where defendants stole property from homeowner, while homeowner was physically restrained in the house, despite lack of evidence of the location of the stolen property within the house); Rouse, supra, 402 A.2d at 1220-21 (property remained in immediate actual possession of victim even though victim had fled from scene after threats of force or violence); Spencer, supra, 73 U.S. App. D.C. at 116 (wallet in trousers which were hanging on chair were within victim's immediate actual possession). We therefore conclude that a jury finding of guilt on the lesser-included offense of theft without a finding of guilt on the robbery charge would have irrationally ignored the meaning of "immediate actual possession" within the robbery statute, or would have reflected a bizarre reconstruction of the evidence. Boykins, supra, 702 A.2d at 1250. The request for the lesser-included instruction was properly denied.
Appellant also argues that the trial court abused its discretion when it denied his request to replace his court-appointed counsel from the Public Defender Service (PDS) with retained counsel. Appellant's request came as his trial was about to begin, and would have granted him his third attorney of the proceedings.*fn5 Absent evidence that appellant's trial counsel was ineffective, and in light of the questionable merits of appellant's request and the adverse effect on the orderly administration of justice such a substitution would have had, we find appellant's argument unpersuasive.
The operative principles governing our review have been cogently set forth in United States v. Burton, 189 U.S. App. D.C. 327, 584 F.2d 485 (1978).
An accused who is financially able to retain counsel must not be deprived of the opportunity to do so. Yet the right to retain counsel of one's own choice is not absolute. The right cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same. The public has a strong interest in the prompt, effective, and efficient administration of justice; the public's interest in the dispensation of justice that is not unreasonably delayed has great force.
. . . It is firmly established that the granting or refusal of a continuance is a matter within the discretion of the judge who hears the application and is not subject to review absent a clear abuse. Yet when the continuance is sought to retain or replace counsel, the defendant's ...