Appeal from the Superior Court of the District of Columbia. (F-39-00). (Hon. Neal E. Kravitz, Trial Judge).
Before Ruiz and Washington, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Kern, Senior Judge
This appeal presents for our decision whether the trial court committed plain error when it instructed the jury regarding two lesser-included offenses of the crime of armed robbery of a senior citizen with which appellant had been charged by the Grand Jury. The trial judge instructed the jury that they could consider robbery of a senior citizen and assault with a dangerous weapon ("ADW") as lesser-included offenses of the armed robbery of a senior citizen charge.
Appellant McClain contends that the trial court erred because the two lesser-included offenses were alternatives and therefore the jury could convict on one or the other, but not on both. Appellant vigorously maintains that ADW and robbery, the two lesser-included offenses, when taken together, contain all of the elements of the greater offense and, therefore, the trial judge should have instructed the jury that if they found appellant not guilty of the greater offense, they could only find him guilty of one of the lesser-included offenses. Thus, in appellant's view, the trial court's failure to do so constituted plain error.
We conclude based on the evidence the jury heard in this case, especially the witnesses' varying testimony with respect to some of the crucial elements of the greater offense, that the trial court did not commit plain error in instructing the jury. Therefore, we affirm.
It is necessary first to detail the evidence and instructions presented to the jury, then to describe the jurors' questions to the court and the court's responses, and, finally, to summarize the arguments the defendant-appellant and the government presented to the trial judge after the defense filed a post-verdict motion for a new trial on the ground the trial court had failed, sua sponte, to instruct the jury correctly.
In May 2000, the Grand Jury returned a two-count indictment against appellant. The first count charged him with armed robbery of a senior citizen and the second count charged him with possession of a firearm during a crime of violence, violations, respectively, of D.C. Code §§ 22-2901, -3202 and -3901 (a) and D.C. Code § 22-3204 (b) (1981). The charges in this case stemmed from an incident that took place at a car-repair shop in Northeast Washington on December 21, 1999. At trial in February 2001, the government presented four witnesses: the owner of the car-repair shop (Fernandez), his employee (Zimmerman), a customer (Ferguson), and a detective (Detective Bilek) who investigated the crime. The defense presented one witness, another detective (Detective Thompson).
Fernandez testified that he was at work in his car repair shop around noon on December 21, 1999, when appellant (known to him by his first name, Bryant) entered the garage with two other men. Appellant was a customer of the garage and, on two separate occasions in 1998, had brought two so-called antique cars in for repair. One car was a 1967 Dodge Polara and the other was a 1968 or 1969 Lincoln Continental. Fernandez testified that since 1998, he had completed some repairs on each car and that appellant had made a few payments to him totaling $1000.
Fernandez testified that when appellant came to the garage on December 21, 1999, appellant asked him about the status of the repairs and Fernandez advised him "that unless he brought in the spare parts, I couldn't do anything, and that if he was not going to help me, that he should take the cars with him . . . ." According to Fernandez, appellant responded in an angry tone of voice and demanded that Fernandez give him "[his] money." When Fernandez told him that "[he] didn't have the money . . . [t]hen [appellant] reached behind with his hand . . . he got out a weapon, a gun, and he pointed it to me and he said . . . [y]ou're going to give me the money."
Fernandez went on to testify that when he told appellant that he "did not have the money," appellant became angrier, walked behind the desk to where Fernandez was sitting and "just pushed [Fernandez] back and . . . pointed with his gun right [at Fernandez's] privates." Fernandez testified that appellant had the gun in one hand, used his other hand to search Fernandez's shirt and pants pockets, took Fernandez's wallet out, went through it and then threw it on the desk, and finally found $25 in cash in the pocket of Fernandez's pants. After appellant found the money, he left the garage with his two companions, one of whom picked up and carried away a car battery booster which was on a chair near Fernandez's desk.
The garage employee, Zimmerman, testified that on the day in question he saw appellant and two others enter the garage through its back entrance from the alley. He spoke to appellant, whom he knew by the nick-name "Fruit" and who was "a pretty regular customer of the garage." He described appellant as a customer "who comes and gets it done and he's gone." Zimmerman described to the jury the work that had been done on the Dodge and the Lincoln Continental, what remained to be done, and opined that it was "hard to get stuff for antique cars now." He testified that he did not pay attention to the three men when they went into Fernandez's office because most customers went into the garage office to speak to Fernandez.
He recalled that while he was completing some repairs on another customer's car, the customer, Ferguson, commented that something was going on with Fernandez. Zimmerman then walked toward Fernandez's office to see what was wrong. Through the glass wall in Fernandez's office, he observed Fernandez behind his desk, sitting in his chair which was backed all the way up against the wall. Zimmerman then instructed Ferguson "to go around to the 7-Eleven to call the police." Zimmerman testified that after Ferguson left to call the police, the three men departed and he went into Fernandez's office. When he approached Fernandez, he noticed that his "hair [was] all messed up and [he was] red in the face and all of his papers and stuff was [sic] scattered all over the desk from his pockets." He testified that Fernandez was ...