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Johnson v. United States

September 22, 2005

DAVID B. JOHNSON AND DERRICK G. LEWIS, JR., APPELLANTS
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia (F-6834-97, F-6835-97) (Hon. Henry F. Greene, Trial Judge).

The opinion of the court was delivered by: Terry, Associate Judge

Argued March 2, 2004

Before TERRY, FARRELL, and RUIZ, Associate Judges.

Appellants Johnson and Lewis were indicted for armed carjacking, armed kidnapping, attempted robbery while armed, three counts of first-degree felony murder while armed, one count of first-degree premeditated murder while armed, unauthorized use of a vehicle, possession of a firearm during a crime of violence, carrying a pistol without a license, and two counts of destruction of property. They were found guilty of first-degree felony murder while armed based on the armed kidnapping, guilty of first-degree felony murder while armed based on the armed attempted robbery, guilty of second-degree murder while armed (as a lesser included offense under the felony murder count based on the armed carjacking), guilty of first-degree premeditated murder while armed, and guilty as charged on all the other counts.*fn1

Appellants challenge their convictions on several grounds. We agree that each appellant's four murder convictions - two for felony murder, one for premeditated murder, and one for second-degree murder, all "while armed" - merge with one another, since there was only one victim. See Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991). We also conclude that each appellant's two destruction of property convictions must merge into one because they are both based on the same event. See Carter v. United States, 531 A.2d 956, 964 (D.C. 1987). The sentences of both appellants must therefore be modified as set forth in part IV of this opinion, and for that limited purpose we remand. In all other respects, we affirm.*fn2

I.

Briefly summarized, the evidence showed that during the early morning hours of August 22, 1997, appellants carjacked and kidnapped Damari Thomas; then, after stabbing and cutting him approximately twelve times, they killed him by shooting him twice in the head. Hearing the gunshots, a police officer in a patrol car spotted the carjacked Cadillac and promptly gave chase. The high-speed pursuit ended when the Cadillac crashed into a United States Postal Service truck at the intersection of Georgia Avenue and Irving Street, N.W. Lewis was apprehended almost immediately thereafter by police officers who pursued him on foot. Johnson was found with the assistance of a police dog about twenty minutes after the crash, hiding in dense shrubbery.

On August 21 Antoine Richards left his 1990 blue Cadillac Sedan DeVille in the care of his friend, nineteen-year-old Damari Thomas, while he went on vacation. Later that evening, Thomas drove the Cadillac to the Metro Club to hear a musical group called the Backyard Band. During an intermission at the club, Thomas had a drink with Ralph Glover, a rapper with the band. Glover noticed that as Thomas was paying for the drinks, he flashed "a lot of money." Also at the Metro Club that night were appellants David Johnson and Derrick Lewis.

After the performance ended at 2:00 a.m., Thomas gave Glover and Akito McMillan, another acquaintance, a ride home in the Cadillac to the 700 block of Hobart Street, N.W. A number of people were hanging out on the street there, including Johnson and Lewis. Glover got out of the car, bought some marijuana, and headed toward his home, leaving Thomas and McMillan standing next to the Cadillac.

About twenty minutes later, seventeen-year-old Tyronica Watson, a friend of Lewis who lived in the same block, heard someone struggling outside her house. She also heard a man whose voice she did not recognize say, "Get off me." As she opened her front door to investigate, she saw Lewis force a man into the back seat of a Cadillac; that man was wearing a black shirt, but his face was obscured from view.

Lewis was still standing next to the Cadillac when the driver addressed Lewis by name and told him to get into the car. Lewis then entered the Cadillac and sat in the back seat behind the driver. The apparently abducted man was in the middle of the back seat "bent over," and a third man was seated on the right side of the back seat as the Cadillac drove away. Ms. Watson, mistakenly believing that the abducted man was her uncle, Rodney McDaniels, ran back into her house, screaming that her uncle had been kidnapped. Another family member immediately called the police.

Sometime between 2:00 and 3:00 a.m., Rachel Corbie, was in the living room of her home on Shepherd Street, N.W., "trying to rock [her] son to sleep because he was crying," when she heard a gunshot. Through her front window, she saw a blue Cadillac creep toward the middle of the block and thought that this was the same Cadillac that she had seen Thomas driving the previous afternoon. However, seated in the Cadillac were two men whom she did not recognize: the driver and a man in the back seat with braided hair. Another man, who was standing on the far side of the street, fired a silver gun toward the ground.*fn3 The man with the gun then entered the Cadillac on the right side, and the car drove off. Ms. Corbie then called the police, went back outside, and found a man lying on the ground, bleeding. She did not talk to the police that night because she "did not want to get involved," but she later learned that the man she saw on the ground was Damari Thomas.

Gilbert Arnett, who was also in his home on Shepherd Street, heard the gunshots as well. After the first shot, which woke him up, he looked out the window and saw a blue Cadillac. He also heard someone yell something indiscernible like "Aw." Arnett then heard a second gunshot and decided to investigate. After getting dressed, he went outside and saw Ms. Corbie, who was "hysterical, screaming, crying." He also saw Damari Thomas lying face down on the sidewalk in front of the house next door. "He wasn't moving, and blood was coming out of his head." He appeared to be dead. The Cadillac was nowhere to be seen.

Officer Juan Burford was the first police officer to arrive on the scene. He found Thomas lying face down on the ground in front of 916 Shepherd Street, with what appeared to be gunshot wounds to the head. There was a trail of blood between the front porch of the house at that address and the place where Thomas lay. Thomas' clothes were soaked with blood, and his pants pockets had been pulled inside out.

Sergeant Gerry Scott of the Metropolitan Police also heard a gunshot while driving south on nearby Georgia Avenue. He quickly turned his car toward the source of that gunshot. As he headed in that direction, he heard a second shot and saw someone jump into the passenger side of a Cadillac in the 900 block of Shepherd Street. Sergeant Scott activated his emergency lights and chased the Cadillac, along with other police officers, for several minutes at speeds in excess of sixty miles per hour.

The car chase ended when the Cadillac crashed into a Postal Service truck at the corner of Georgia Avenue and Irving Street. This crash caused $3,000 worth of damage to the postal truck and totaled the Cadillac. After the crash, the three occupants of the Cadillac jumped out and fled on foot. Lewis, who had been in the front passenger seat, ran down an alley, reversed course, and was promptly detained by Officer David Brock. Johnson, who was sitting in the back seat of the Cadillac, was found about twenty minutes later, with the aid of a police dog, hiding in some shrubbery near an alley. The driver was never caught or identified, but other evidence indicated that he might have been Akito McMillan. An identification card bearing Johnson's name was later found on the back seat of the Cadillac, and a bloody plastic bag with Johnson's fingerprint on it was recovered from the floor under the driver's seat.

Dr. Gertrude Hjaardemal, a deputy medical examiner, testified that Thomas died of two gunshot wounds to the head. The shots were fired in quick succession, and one of them came from a distance of eighteen inches or less. The superficial stab wounds found on Thomas' body were inflicted before the fatal shots, most likely while he was in the back seat of the Cadillac, because his blood was found all over that back seat.*fn4

Neither appellant testified in his own defense. Lewis offered no evidence, but Johnson introduced copies of statements previously made by Sergeant Scott and Officer Brock, as well as excerpts of prior testimony by Ms. Watson and another witness, Darion Clark.

II.

Johnson argues that a statement made during trial by a witness violated his Confrontation Clause rights under Bruton v. United States, 391 U.S. 123 (1968), and that its admission should have resulted in a mistrial and a severance. We agree that the admission of the statement violated Johnson's rights under Bruton, but we are ...


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