Appeals from the Superior Court of the District of Columbia. (F757-02 and F758-02). (Hon. Russell F. Canan, Trial Judge).
Before Schwelb and Ruiz, Associate Judges,and Belson, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
The appellants were charged, along with another co-defendant, with two counts of assault with the intent to commit robbery while armed. In May 2002, all three men were convicted by a jury on two counts of the lesser-included offense of assault with the intent to commit robbery. On appeal they challenge the sufficiency of the evidence and the prosecutor's closing and rebuttal arguments. Appellant Kirksey also argues that the trial court should have admitted a prior statement of identification -- which also included details of the crime that he claims tended to exonerate him -- for its substantive truth. Although the latter argument finds some support in a recent case, we conclude that it was not plain error for the trial court not to sua sponte admit the statement as substantive evidence. Concluding that there also is no merit to appellants' other arguments, we affirm.
The appellants' convictions stem from the assault of Andrew McMahon and Katherine Burns, a married couple, on the evening of January 31, 2001. The couple was walking along Adams Mill Road, in the Northwest quadrant of the District, and were returning to their apartment after eating dinner together. As they walked along the road, they noticed four young men walking towards them in the opposite direction. Ms. Burns became apprehensive because the four had their heads down as they approached, and did not converse with each other.
As the couple encountered the quartet along the sidewalk, Ms. Burns and Mr. McMahon walked in-between the four men, so that two of the young men were on Mr. McMahon's right side, and two were on Ms. Burns' left. At this point, the four men attacked the couple. Two of the men grabbed Mr. McMahon, while the other two assaulted Ms. Burns. Mr. McMahon was punched in the face, and fell to the ground. His suit jacket was ripped, and his watch became unclasped as the men pulled at the satchel he was carrying. The two men closest to Ms. Burns grabbed at her person and at the handbag she was carrying. Ms. Burns testified that at one point "somebody pulled a knife on me."
This altercation was observed by a number of eyewitnesses, each of whom confirmed the general details of the couple's assault by the four young men. One of these witnesses was a neighbor, David McMenas,*fn1 who was also returning home with his wife that evening. They had been walking on Adams Mill Road ahead of Mr. McMahon and Ms. Burns, and had crossed the street to enter their residence as the band-of-four approached. As the McMenases entered the building, their attention was drawn to the altercation by "a lot of shouting and screaming." Upon seeing "Andy [McMahon] and Katie [Burns] being attacked by one or more of the four men," he tried to dial 911 from the apartment's intercom system. Another neighbor, Zoe Bennington, was inside the building, and was drawn to her window by "very frantic yelling" outside. Ms. Bennington only saw the later part of the struggle -- which by Mr. McMahon's account only lasted "ten or fifteen seconds" -- and testified that in its aftermath Mr. McMahon's coat was torn, and his nose was bloodied. She also saw the young men run away from the scene.
Ginette Cannon and Emily Stern were driving along Adams Mill Road in Ms. Cannon's truck. Ms. Stern testified that as they came upon the scene she observed two people that were being, a man and a woman that looked like [they] were being assaulted by four young men and there were, it looked to me like there were two that were assaulting or attacking each of the victims, and were actually trying to, both, all four of them were trying to grab the victims' bags or satchels, they had bags with straps, and trying to grab them and rip them off their back. In fact, at one point two of the attackers sort of swung one of the guys, or the guy, the victim, into the street. It appeared to me that they were trying to take his bag from him.
Ms. Cannon testified that as she was driving, she came upon the assault, and slowed down to provide assistance. As she slowed down, she "leaned on her horn" so as to scare away the attackers. She testified that two men were assaulting Mr. McMahon, and pulling at his bag, while two other men were assaulting Ms. Burns. When she sounded the horn, the men began to disengage from the melee and "slowly jog up the street" in the direction of the adjacent Walter Pierce park. One of the men, who was wearing a dark jacket, kept his hands in the pockets in the front of that jacket as he jogged. Ms. Cannon continued to follow the foursome "for about fifty or fifty-five feet," until she came to a four-way stop at the entrance of the park. As luck would have it, a police cruiser was also stopped at the intersection. As Ms. Stern exited the truck, flagged down the officers, and informed them as to what was going on, Ms. Cannon "noticed [the four attackers] speed up and then jump over a low brick wall and go into a basketball court in the park."
Officer Frank Servis was one of the two officers flagged down by Ms. Stern. After sending a radio call to the dispatcher, he ran after the men as Officer Christopher Petz remained with Ms. Cannon and Ms. Stern. Officer Servis found three young men crouched in a ditch, which was located on the other side of a short fence which separated the park from the National Zoo. Officer Servis kept the three men there, at gun point, while other officers came as reinforcements.
The police conducted show-up identifications of the three suspects. While Mr. McMahon could not identify any of the attackers by face, he did say that the clothing worn by the detainees was similar to that worn by the men who had attacked him and his wife. Ms. Burns demurred making an identification, because she was not wearing her glasses. Ms. Stern similarly declined to make an identification, because she was "unable to get a good look" at the suspects' faces, and therefore could not provide a description beyond their general characteristics. Ms. Cannon positively identified all three detainees as being involved in the attack. In court she testified that appellant Kirksey "was one of the two people that was robbing the female." However, according to Detective Robert Thompson, the officer who conducted the show-up identification, she had told him upon identifying Kirksey that "I don't know what he did, he was with them."*fn2
The argument that merits some discussion is appellant Kirksey's claim that the trial judge erred in instructing the jury that Ms. Cannon's statement to the officer identifying him as one of the perpetrators ("I don't know what he did, he was with them.") was not to be considered for its substantive truth, but only as a prior inconsistent statement for the limited purpose of assisting the jury in making its credibility determinations with respect to the witness's trial testimony that Kirksey robbed Ms. Burns.*fn3 At trial, the statement was not proffered by either party as one of prior identification, and no objection was raised concerning the limiting instruction to the jury that they were not to consider the statement for its substantive truth. The trial court has no general duty to instruct the jury sua sponte. See Johnson v. United States, 387 A.2d 1084, 1088 (D.C. 1978) (en banc). Rule 30 of the Superior Court Rules of Criminal Procedure provides a mechanism whereby parties may file written requests with the trial judge proposing that certain instructions be given, and it is incumbent upon the defendant to request any desired instructions or lodge an objection to those with which he disagrees. See Super. Ct. Crim. R. 30 ("No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection."). Failure to do so will subject ...