Appeal from the Superior Court of the District of Columbia (F-6314-00) (Hon. Noel A. Kramer, Trial Judge)
Before Wagner, Chief Judge, and Terry and Farrell, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Submitted February 25, 2003
Appellant Hawthorne was charged by indictment with armed robbery and possession of a firearm during the commission of a crime of violence ("PFCV"). A jury found him guilty of PFCV as charged, and on the armed robbery count it found him guilty of the lesser included offense of robbery. On appeal from the judgment of conviction, appellant argues that the trial court erred (1) by raising sua sponte the issue of w hether the government wished it to instruct the jury on the lesser included offense of robbery, and (2) by giving the jury a preliminary instruction on aiding and abetting. We affirm.
On October 16, 2000, at approximately 1:45 a.m., Bobby Knight began walking from his Howard University dormitory room to the apartment of a friend, Darrell Chandler. Upon reaching the 1100 block of Harvard Street, Mr. Knight saw two men riding bicycles on the opposite side of the street. The cyclists then crossed the street and came to a stop in front of Mr. Knight. One of them displayed a gun and said, "Give me your money." The man with the gun rummaged through Mr. Knight's bag, but took nothing from it. At that point, a third man -- later identified as appellant -- approached on foot from behind Mr. Knight and said, "Don't get shot, just give me your money." Mr. Knight gave appellant the $62 he had in his pocket (consisting of three $20 bills and two $1 bills), and appellant in turn gave the other two assailants each a $20 bill. Appellant kept the third $20 bill and threw the $1 bills at Mr. Knight, telling him to "keep the change." Appellant also took Mr. Knight's cellular phone.
After the robbers left, Mr. Knight walked around the corner and found two police officers, James Luckett and Rodney Wilkinson, who were assisting the fire department with a fire in the 1200 block of Columbia Road. Knight told the officers that he had been robbed of his money and cellular p hone. Officer Luckett obtained a description of the three assailants which he then broadcast over the police radio.
As Officer Luckett drove Mr. Knight to his friend's apartment, Lieutenant George Kucik radioed Officer Luckett to inform him that he had stopped two men matching the description at 16th and Lamont Streets, but wanted to obtain more information. *fn1 Appellant was one of the two. Once Officer Luckett arrived, Lieutenant Kucik patted down the two m en he had stopped and felt a cellular phone in appellant's right hip pocket. The officers then conducted a showup identification, in which they brought each suspect separately to a point within a few feet of the police car in which Mr. Knight was seated. Mr. Knight positively identified appellant as the one who had approached him from behind, but was uncertain whether the seco nd man had participate d in the robbery. Appellant was then placed under arrest. A search of his person incident to the arrest produced a cellular phone, which Mr. Knight identified as his, *fn2 and $46 in cash which included one $20 bill.
During a discussion of jury instructions between counsel and the court, the following exchange took place:
THE COURT: Is the government requesting a lesser included?
MR. GORMAN [the prosecutor]: It certainly seems appropriate unless the court thinks otherwise.
THE COURT: I will give a lesser included of robbery.
MR. GORMAN: Just for a rgument's sake, if we didn't have a gun, but the defendant was the one who was alleged to have a gun, I'm not sure that I would necessarily want it, because I think people get confused ...