Appeals from the Superior Court of the District of Columbia (F-9300-96, F-9301-96). (Hon. Noel A. Kramer, Trial Judge).
Before Terry, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appellants Bryant and Adams, along with two co-defendants,*fn1 were charged in a twenty-six count indictment with multiple crimes of violence and crimes against property which occurred during the late evening and early morning hours of September 19 and 20, 1995. Among the charges were armed robbery, armed kidnapping, armed first-degree sexual abuse (rape), armed carjacking, destroying property, unauthorized use of a vehicle, possession of a firearm during a crime of violence, and conspiracy to commit some of the other charged offenses.
A jury trial began on February 25, 1997, for appellant Bryant and co-defendant Burie Garrett. After six days of testimony and four days of jury deliberations, the jury was unable to agree on a verdict with respect to Bryant, and as to him the court declared a mistrial; Garrett, however, was found guilty on eighteen counts.*fn2 Bryant was then retried with appellant Adams in a trial that began on May 2, 1997. At the conclusion of this second trial, Bryant was found guilty of all seventeen charges against him; Adams was also found guilty on the fifteen counts in which he was charged. Adams and Bryant were later sentenced to prison terms totaling twenty-three years to life and twenty-nine years to life, respectively. Both filed timely appeals.
Before this court, appellants argue that the trial court (1) abused its discretion by restricting the cross-examination of certain government witnesses, (2) erred in refusing to give a jury instruction on consent as a defense to the kidnapping and rape charges, (3) improperly admitted certain hearsay statements as excited utterances, and (4) failed to merge several of their convictions. We remand for resentencing because two of each appellant's convictions merge with two others, but we affirm the judgment of conviction as to both appellants in all other respects.
The series of crimes in which appellants and their co-defendants engaged began sometime around 9:00 p.m. on September 19, 1995, when Bryant, Adams, and Garrett stole a burgundy and gray van from the parking lot of the True Gospel Tabernacle Baptist Church in Southeast Washington.*fn3 A few minutes later, the trio arrived in the stolen van at the home of Samuel Wilson. There they picked him up, and then, after first stopping at Garrett's home to retrieve three weapons in the hope of finding someone to rob,*fn4 the four men drove downtown to "get a prostitute."
As the group headed toward downtown along Massachusetts Avenue, S.E., the van, driven at the time by Garrett, pulled alongside seventeen-year-old Thea Williams, who (according to her own testimony) was working as a prostitute that evening. While she was standing on a street corner, one of the four defendants (she was not sure which one) put a gun to her side and forced her into the van. Once inside, Williams saw three other men in addition to the one who had forced her to get in. As they sped away, Wilson saw Adams and Bryant raping Thea Williams in the rear of the van. Ms. Williams testified that one of the two appellants ordered her to perform oral sex on him, threatening to shoot her if she refused. She also testified that after Adams and Bryant raped her, Garrett and Wilson, who were both riding in the front seat, changed places with Adams and Bryant and also raped her while the van was driving around the city.*fn5
The van eventually stopped at the Kenilworth Parkside Recreation Center, and there Garrett forced Williams to have sex with him again. The group then drove to an alley near Clay Terrace, and on the way Garrett had sex with Williams for a third time. After they reached the alley, the van was parked, and, according to Wilson, the other three took turns raping Ms. Williams again. After about forty-five minutes, the group decided that they needed more condoms, so Wilson drove to a nearby service station and bought some. There followed yet another episode of rapes by Adams, Bryant, and Garrett. When asked why he did not intervene to stop the repeated rapes of Ms. Williams, Wilson testified that he did not think anything was wrong with what his companions were doing because she was a prostitute.*fn6
After purchasing still another box of condoms, the group decided to rob a man whom they had seen earlier in the area selling clothes from his car. Ms. Williams also recalled hearing the group discussing a plan to rob someone when they stopped at a gas station earlier in the evening. Garrett, now driving the van, pulled alongside a white Volvo which the group had seen earlier parked on Division Avenue. Tyrone McDowney, who was standing between his own car and the parked white Volvo, noticed the van approaching slowly with its lights off. He testified that the van door was slightly ajar as it drove up, as if the occupants were about to jump out. McDowney became nervous and started to run away. When McDowney fled, appellant Bryant, armed with a .380 semi-automatic handgun, jumped out of the van and began to chase him, firing three shots as he ran. Hoping to end the pursuit, McDowney fell to the ground and feigned being shot. The ruse worked; Bryant ceased his pursuit and returned to the van.
While Bryant was chasing Tyrone McDowney, his cousin Stanley McDowney, who owned the white Volvo, was robbed by Wilson and Adams.*fn7 After taking Stanley McDowney's money, Adams and Wilson forced him out of his car at gunpoint and then drove away in it. Garrett waited for Bryant to return to the van and then drove with Bryant back to Clay Terrace, where they reunited with Adams and Wilson in the stolen Volvo. During this entire incident, Thea Williams remained in the back of the van.
After the men regrouped at Clay Terrace, they searched the Volvo and divided up the clothing and other goods found in the trunk.*fn8 They then discussed what to do with Ms. Williams. Although they briefly considered making some money by allowing some of their friends to have sex with her, it was ultimately decided that Garrett would drop her off where they had originally picked her up.
After Garrett drove off with Ms. Williams in the van, the three who remained behind - Adams, Bryant, and Wilson - set fire to the stolen Volvo to conceal their fingerprints. They then waited at Clay Terrace for Garrett to return, drinking and smoking marijuana.
While driving Ms. Williams back to the spot where she had been abducted, Garrett decided to rob some additional victims. He put a gun into one man's face and demanded crack cocaine, and later he stole a handbag from a woman who was walking along the sidewalk. A short time after the second incident, the police began canvassing the area because witnesses had called them to report a robbery suspect driving a burgundy and gray van. When Metropolitan Police Officer John Holloway heard the report over the radio and saw a van fitting the broadcast description, he turned on his flashing lights and began to follow it, intending to pull the van over. As soon as Garrett noticed the police car, however, he made a quick right turn and started to speed away. A police chase ensued that lasted for almost twenty minutes and involved several police vehicles at speeds of up to seventy miles per hour. The van also struck several other cars during the chase.
After apparently blowing one or more tires from driving recklessly, the van came to a stop when it collided with several parked cars after trying to make a sharp turn to evade the police. Officer Holloway immediately got out of his car and approached the left front door of the van. As he drew closer, the glass from the door's window shattered all over him. A split-second later, Officer Holloway saw a gun pointed directly at his face through the driver's side window. Immediately he drew his service revolver and fired several rounds at the driver of the van, whom he later identified as Garrett. Shortly thereafter, more police officers arrived and also fired shots into the van.
Garrett was then removed from the driver's seat, and police officers searched the inside of the van for weapons. While searching, Officer Holloway discovered a partially dressed Thea Williams curled up behind the driver's seat.*fn9 As soon as she made eye contact with Officer Holloway, Ms. Williams exclaimed that she had been kidnapped and raped. Officer Holloway described her as "crying, shaking, [and] very distraught" as she told her story. Detective Cathy Sanderson, who placed her in an ambulance and questioned her, described her in similar terms ("very emotional, crying, very upset, very distraught"). Both Williams and Garrett were then taken to the hospital. Williams was never admitted, but Garrett was treated for gunshot wounds, from which he later recovered.
The van that was used by the four men was later dusted for fingerprints by Ruby Brown, an analyst with the Metropolitan Police; however, she was able to recover only the fingerprints of Adams and Wilson from the outside of the van. Other evidence seized from the van, including a .380 caliber semi-automatic pistol, condoms, condom wrappers, clothing from Stanley McDowney's car, and a checkbook and receipts bearing the name of Marvin Battle, was introduced at trial.
Appellant Adams testified that neither he nor Bryant was involved in any of the offenses charged. Adams acknowledged that he knew Wilson, but he insisted that they never had a "relationship" with each other. He explained the presence of his fingerprints on the van by testifying that he only touched it for a moment on the ...