Appeal from the Superior Court of the District of Columbia (F4605-96) (Hon. Harold Cushenberry, Trial Judge)
Before Wagner, Chief Judge, and Terry and Reid, Associate Judges
The opinion of the court was delivered by: Wagner, Chief Judge
Following a jury trial, appellant, Jimmy Pearsall, was convicted of conspiracy to commit armed robbery (D.C. Code §§ 22-2901, *fn1 -3202 *fn2 (1996)), second-degree burglary while armed (D.C. Code §§ 22-1801 (b), *fn3 -3202) (1996)), kidnaping while armed (D.C. Code §§ 22-1801,-3202) (1996)); attempted armed robbery, as a lesser included offense of armed robbery (D.C. Code §§ 22-2901, -3202) (1996)), first-degree felony murder while armed (D.C. Code §§ 22-2401, *fn4 -3202) (1996)), carrying a pistol without a license ("CPWL") (D.C. Code § 22-3204 (a) *fn5 (1996)), and possession of a firearm during the commission of a crime of violence or dangerous offense ("PFCV") (D.C. Code § 22-3204 (b) (1996)) . *fn6 He argues that his conviction of conspiracy must be vacated because it is barred by a criminal law doctrine known as Wharton's Rule, an exception to the general principle that a conspiracy and the substantive offense which is its object are discrete crimes for which separate punishments may be imposed. He also contends that the conspiracy count of the indictment was defective, that the evidence was insufficient to support his conviction of armed kidnaping and that the trial court erred in denying, without a hearing, his motion to vacate his convictions pursuant to D.C. Code § 23-110. We hold that Wharton's Rule does not apply, and hence does not require the dismissal of the conspiracy charge in this case. Further, finding no other reversible error, we affirm.
Israel Jones was fatally shot in the head in his apartment on Chesapeake Street, S.W. Keith Barnes, who entered a plea of guilty to second-degree murder while armed and conspiracy to commit armed robbery in connection with Jones' murder, testified at Pearsall's trial. According to Barnes' testimony, on the evening of the murder, April 11, 1996, he, appellant, Carpenter and Mitchell were together when Carpenter suggested that they rob Jones, whom Carpenter had seen selling drugs earlier that day. Barnes testified that they all agreed with Carpenter's plan and that the four of them drove to Chesapeake Street to look for Jones. Barnes testified that he was armed with a .38 revolver; appellant had a .357 revolver; and Carpenter had a semi-automatic pistol. When they arrived at Jones' apartment, no one was there, and Carpenter told appellant and Mitchell to go to South Capitol Street to look for Jones. Barnes testified that meanwhile, he kicked in the door to Jones' apartment, and he and Carpenter searched it for drugs and money. Barnes testified that when appellant and Mitchell returned to the apartment with Jones, appellant had a gun in his hand, and Jones looked scared. He testified that Jones was taken into the bedroom, and Carpenter demanded his money. At some point, Carpenter took appellant's .357 revolver and put it in Jones' mouth. Barnes testified that he heard a shot from the bedroom a few minutes after he and Mitchell left the bedroom to search the living room. Barnes testified that he ran into the bedroom where Jones was lying on his back near the closet. He testified that he and the other three men left the apartment through the bedroom window.
Jones' sister, Quiovalee Jones, testified about events which occurred shortly before the shooting. She testified that appellant and Mitchell were looking for Jones and found him. She said that as she and appellant walked behind Mitchell and her brother, she overheard Mitchell tell her brother, "If you don't come with us, it's going to be the Fourth of July out here . . . ." She testified that her brother said that he did not want to go to see Carpenter.
Only after Jones' friend, James Young, agreed to accompany Jones and the other men did Jones get into a car with appellant and Mitchell. James Young testified and corroborated Ms. Jones' testimony about Jones agreeing to get in the car if Young came along. Young also testified that after driving a short distance, Mitchell pulled over and ordered him out of the car, while appellant, who was holding a gun, placed his arm around Jones' neck.
Following his arrest, appellant gave a videotaped statement to the police which the jury viewed at trial. In his statement, appellant admitted that he agreed with Carpenter, Mitchell and Barnes to rob Jones and that Carpenter gave him a .357 revolver to use. Appellant also stated he and Mitchell found Jones on South Capitol Street and that Jones did not want to get into the car with them; however, after he reassured Jones' sister that her brother would be all right, Jones went along. Appellant said that Young was ordered out of the car and that Mitchell told Young "we got to handle our business." Appellant also recounted in his statement that when they were inside Jones' apartment, Carpenter was demanding money from Jones in the bedroom, and he was facing the living room, when he heard a loud noise, turned around and saw Jones fall. He also said that he heard Carpenter say that he shot Jones.
At trial, appellant provided a different account of the events that evening. He admitted that he rode with Carpenter, Barnes and Mitchell to Jones' apartment and that he went to get Jones, who was not at home. However, appellant testified that he thought the other men were just going to pick up money that Jones owed them and that he stayed in the car when Carpenter and Barnes went inside. Appellant described the ride back to Jones' apartment as friendly, and he said that no one had a gun. He also testified that when they returned to Jones' apartment, only Jones and Mitchell went inside and that he stayed in the car for about ten minutes and then left. Appellant explained that he gave the statement to the police because they would not believe him, and they told him to go along with what the others had said about the murder. However, appellant acknowledged on cross-examination that the police did not threaten him and that he had consulted with his mother and uncle before giving the statement.
Appellant argues that his conviction for conspiracy to commit armed robbery violates Wharton's Rule, since the object of the conspiracy and overt acts in furtherance thereof largely duplicate the substantive counts for which he was convicted. He also contends that the conspiracy count of the indictment is poorly drafted and defective because it is superfluous, and the alleged conspiracy was of extremely short duration. The government argues preliminarily that these claims are barred procedurally because appellant failed to challenge the indictment before trial as required by Super. Ct. Crim. R. 12 (b). Further, the government contends that no law prohibits separate convictions and consecutive sentences for conspiracy to commit armed robbery and attempted armed robbery.
A. Timeliness of the Claim
With limited exceptions, defenses and objections based on defects in the indictment must be raised prior to trial in a pre-trial motion. Super. Ct. Crim. R. 12 (b) (2). *fn7 Failure to raise such an objection prior to trial constitutes a waiver of the objection, "but the Court for cause shown may grant relief from the waiver." Super. Ct. Crim. R. 12 (d). A defendant who fails to object to an error in an indictment in a pre-trial motion waives the right to challenge the indictment on appeal unless it is so deficient as to be "'totally lacking in the statement of offense.'" Nichols v. United States, 343 A.2d 336, 341 (D.C. 1975) (quoting Bush v. United States, 215 A.2d 853, 855 (D.C. 1966)). When no objection is made during trial, our ...