Appeals from the Superior Court of the District of Columbia (F-1278-99, F-1279-99) (Hon. Stephen G. Milliken, Trial Judge)
Before Terry and Reid, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Terry, Associate Judge
Appellants Beaner and Baham were jointly tried and convicted of armed carjacking, armed robbery, aggravated assault while armed ("AAWA"), assault with a dangerous weapon ("ADW"), possession of a firearm while committing a crime of violence, and carrying a pistol without a license. On appeal they attack their convictions on several grounds. We agree that appellant Baham should have received a five-year sentence enhancement, rather than a ten-year enhancement, for his AAWA and armed robbery convictions. We also agree that both appellants' ADW convictions merge with their convictions of armed robbery. The sentences of both appellants must therefore be modified as set forth in part V of this opinion, and for that limited purpose we remand. In all other respects, we affirm.
At around 8:30 p.m. on February 25, 1999, Antonio Brown was driving his mother's black Mazda automobile on Georgia Avenue when he received an urgent page. He quickly found a pay phone near Ninth and Upshur Streets, N.W. When he got out of the car to make a phone call in response to the page, he left the car idling "about three feet up from the pay phone," keeping an eye on it as he placed the call. After waiting on hold for approximately five to ten minutes, Brown noticed two men wearing ski masks walking toward him. The shorter man with a darker complexion stopped behind Brown and grabbed hold of him. He told his companion, described by Brown as taller with a lighter complexion, to check Brown for a gun. The taller man lifted up his own shirt, pulled out a gun, and held it against Brown's stomach while frisking him for a weapon. The shorter man then struck Brown on the back of the head with what Brown believed to be the gun he saw in his peripheral vision, and also threatened to kill him. Both men then dragged Brown to some nearby bushes, took his money out of his pocket, and robbed him of his Air Jordan shoes,*fn1 his pager, an identification card, a bank card, and a supermarket courtesy card. Seconds later Brown heard one of the assailants say, "That's the car right there." He then heard the car seats being pushed back, and a moment later the assailants "skidded off" in the Mazda. Brown testified that he had been struck in the head a total of three times, which caused him to suffer "bleeding in the brain," a loss of consciousness, and scarring. His injuries required stitches, multiple CAT scans, and a short stay in the hospital.
Once the gunmen left, Brown crossed the street to a fast-food restaurant and asked an employee there to call the police. Officer Kyra Williams of the Metropolitan Police responded and took a report from Brown, in which he described the assailants as two black men -- one dark-skinned and the other light-skinned -- wearing black masks and hooded sweatshirts (or jackets with hoods) and blue jeans, and carrying handguns; one of them also wore Timberland boots. In addition, Brown told the officer that the light-skinned robber had a black nine-millimeter pistol, while the dark-skinned robber had a chrome or silver .45 caliber pistol, and that they stole between $150 and $230 in cash along with his Air Jordan shoes. Officer Williams then broadcast a "flash lookout" for the robbers which included the Mazda's license number.
B. Events Immediately Preceding and Following the Robbery
Angela Bonney was Beaner's girl friend at the time of the robbery; she and Beaner lived together, and Baham was a frequent visitor in their home. On the date of the robbery, Baham came to Bonney and Beaner's apartment at around 4:30 p.m. with his seven-year-old daughter Yolani. After about thirty to forty-five minutes, Beaner, Baham, and Yolani left together. *fn2
Ms. Bonney testified that Baham and Beaner returned to her apartment about two hours after they had left. She described them at that time as "fidgety and moving around." Bonney heard Beaner say, "I know you're mad at me for what I did, for the way I hit him," to which Baham replied, "No, man, I love you." Ms. Bonney then saw Beaner take off a pair of black boots and change into a pair of Air Jordan shoes. Baham in turn pulled a bag from behind the couch and took out of it a "gray jumper," into which he changed from the black leather jacket that he had been wearing. The two men also had with them a driver's license bearing the name of Antonio Brown, a car registration card, a gun, a pager, and some money, which Beaner and Baham began to divide. Bonney recalled that they were "rushing to get out of the house." Once they had changed clothes, Beaner said, "We've got to hurry up because we don't want them to notice the car." Upon leaving, the two men took an "Italian print scarf" belonging to Ms. Bonney to keep the gun covered, but left everything else behind except the money they had divided up.
On February 26, the day after the robbery, Ms. Bonney found a pager in the jacket that Baham had left in her apartment. When it went off, Bonney called the displayed number, thinking it might be the number of Baham's wife, but instead she reached a woman who asked for "Tony." Ms. Bonney then discarded the jacket and the pager. Latel Tucker, Antonio Brown's former girl friend, testified that when she tried to page Brown on February 26, a woman named "Angie" responded, but hung up when she denied knowing anyone named "Tony."
C. The Search for the Robbers
At 9:08 p.m. on February 25, Officer Christopher Myhand received a broadcast lookout about a carjacking. The lookout reported that the car was a black Mazda MX-6 with license number AB-2884, occupied by two men with handguns. Within minutes of the broadcast, Officer Myhand, traveling eastbound on Florida Avenue, N.W., spotted in his rear view mirror a car matching this description as it attempted to make an illegal U-turn. Keeping an eye on the car, Officer Myhand asked the dispatcher to repeat the license number, and when the dispatcher complied, the officer saw that it matched the tags on the Mazda. Officer Myhand quickly made a U-turn and started to follow the Mazda. When the two occupants of the Mazda realized that a police car was pursuing them, they stopped the car, jumped out, and ran into an alley. The officer, although he was moving fast, lost sight of the two men as he came within thirty to fifty feet of the Mazda.
About ten to fifteen seconds later, as he drove past an alley that ran southbound from Florida Avenue in the middle of the 1200 block, Officer Myhand caught sight of "the same two individuals" running side by side down the alley. He activated his car's emergency lights and sped down 13th Street, which was parallel to the alley in which the men were running. He then turned into a connecting alley and saw the two suspects, still running side by side. As he closed the gap from behind, he saw that one of the men was wearing a dark jacket and blue jeans and that the other was dressed in "all gray." Officer Myhand also saw a "dark cloth object" fall to the ground between the two men, who were still running side by side.
The two men ran across 12th Place and into another alley, then turned north into a third alley heading back toward Florida Avenue. Upon reaching the spot where the men turned, Officer Myhand got out of his car and began to pursue them on foot. Peering around the corner of a building, he saw the man clad in gray trying to remove the upper part of his garment as he ran, but he lost sight of the other man. The officer broadcast a lookout, stating that one of the suspects -- the man in gray -- had turned east upon reaching Florida Avenue. Within seconds, Myhand heard a broadcast stating that the man had been apprehended on Florida Avenue. When he arrived at Florida, Officer Myhand saw appellant Baham "in the custody of other officers standing next to a police car" and recognized him as the man he had been chasing because he had "a gray jump suit down around his ankles." *fn3
With Baham now in custody, Officer Myhand broadcast a lookout for the other suspect. Almost immediately thereafter, appellant Beaner emerged from the back yard of a house adjacent to the alley. Myhand recognized Beaner, on the basis of his clothing, as the other man he had been chasing and ordered him to the ground. He also noticed that Beaner was wearing Air Jordan shoes.*fn4 Unprompted by any questioning, Beaner declared that he just "came out of his bitch's house." The entire chase lasted approximately one minute.
Once both suspects were apprehended, Officer Myhand went back to the place where he saw the "dark cloth object" fall and learned from another officer on the scene that it was a black knit ski mask. He also requested that K-9 officers sweep the alley. No one else was found, however, and Officer Myhand did not recall seeing anyone in the alley area during the chase. Myhand also spoke with Shawn Davis, from whose back yard Beaner had emerged. Mr. Davis told Officer Myhand that he had been at home with his family that evening, that he had no visitors, that the back door was bolted and never used, and that he knew no one by the name of Kenneth Beaner. He also explained that, because his home was a row house, the back door was the only way to get directly from the house into the back yard.
Officer Martin Fosso, a crime scene search technician, arrived at the scene and spoke to officers who had found a "stocking mask" in the "east side alley off of 12th Place," as well as "another ski mask" just over a fence in a nearby yard at 1221 W Street, N.W. From the black Mazda, Officer Fosso recovered an operable nine-millimeter Ruger ...