Appeal from the Superior Court of the District of Columbia (F-7909-02) (Hon. Susan R. Winfield, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued September 27, 2005
Before REID and KRAMER, Associate Judges, and BELSON, Senior Judge.
At the conclusion of a jury trial, the appellant, Melvin Bonilla, was found guilty of the armed robbery of complainant, Harold Romero,*fn1 and assault with intent to commit robbery while armed of complainant, Jose Hernandez.*fn2 On appeal, he contends that the trial judge erred in declining to give a jury instruction stating that his theory of the case was that no robbery or assault with intent to rob had occurred, but rather that there had been a fight. Since the trial record shows no evidence that such a fight actually occurred, the trial court did not err in declining to give such an instruction. We affirm.
The evidence at trial came in solely through the government's witnesses -- the complainants Harold Romero and Jose Hernandez, and Metropolitan Police Officer Edward Shymansky.*fn3 Viewed in the light most favorable to the government, the evidence shows that on the evening of December 10, 2002, the complainants -- friends and construction company owners -- had gone out drinking. In the early morning hours of the next day, they arrived at an after-hours club on Fourteenth Street, Northwest, in Romero's truck. After about half an hour in the club, Hernandez returned to the truck to make a phone call, while Romero remained inside speaking to Jamie Acosta, who was indicted, but not tried, with the appellant.
Eventually, Romero and Acosta left the club together so that Romero could obtain one of his business cards from the truck for Acosta. While Hernandez watched Romero and Acosta from the truck, the appellant approached them, grabbed Romero's head from behind, pulled a knife from his pocket and put the knife to Romero's throat. Acosta then reached into Romero's pocket and took his wallet. After taking the $40.00 that was in the wallet, the appellant and Acosta started grabbing at Romero, shaking him and demanding more money. When Romero told them that he had no more money, they took him over to the truck and demanded money from Hernandez. Although Hernandez offered them $20.00, the appellant insisted upon $100.00.Hernandez, who did not have $100.00, tried to negotiate a lower amount so that Romero would not be harmed.
Becoming infuriated, the appellant swung his knife at Hernandez, who, fearing for his life, hit the accelerator, causing the truck to leap forward and the door, which was open, to hit a tree. The appellant, Acosta and Romero, who had all been leaning forward into the truck, were pushed out by the acceleration. The appellant punched Romero in the face, and Romero jumped into the truck, making no effort to fight back, since as he explained, they had a weapon and there were two of them and only one of him. With Romero in the truck, Hernandez immediately drove off, calling 911 on his cell phone to report the robbery and give the police a description of the appellant and Acosta.
Hernandez followed the appellant and Acosta down Fourteenth Street, and Hernandez and Romero saw the two briefly hide behind a red Honda Accord, then split up, with the appellant quickly walking off down Fourteenth Street.Hernandez told Romero to jump out and follow him, but to "stay away from him because he had a knife."Thus, Romero approached the appellant, stood about two feet away from him, and asked that he return his wallet. The appellant replied that he did not have Romero's wallet.
According to Romero's estimate, he was out of the truck and talking to the appellant for about two to three minutes before Officer Shymansky arrived on the scene in response to Hernandez's 911 call. Upon his arrival, the officer saw the appellant, Romero and Hernandez (who testified that he had gotten out of his truck to prevent the appellant from escaping) facing each other on the street. Officer Shymansky testified that "a few feet" separated the three, and although Mr. Hernandez and Mr. Romero were pointing at the appellant, and it looked like they were "getting ready to" fight, "they weren't close enough to touch each other."*fn4
The complainants identified the appellant as the man who had put the knife to Romero's throat. Shortly thereafter, Acosta, who had returned to the after-hours club where he had first met the complainants, was located and identified by Romero as the other person involved with the robbery. In a search incident to arrest, Romero's business card and $132.00 were recovered from Acosta, and $14.00 was recovered from the appellant. Romero's wallet and papers with his name on them were recovered from the area of the red Honda where the appellant and Acosta had bent down.
During the initial discussion of jury instructions, counsel asked the court to give a "general denial instruction" as the defendant's theory of the case. Because there is no standard instruction for a defense theory of "general denial" included in the standard Criminal Jury Instructions for the District of Columbia (4th ed. rev.) (Redbook), and none had been drafted and submitted to the court as required by Super. Ct. Crim. R. 30,*fn5 it was agreed that co-counsel for the appellant would draft a "theory of the case" instruction during the closing arguments.
During the government's initial closing argument, the prosecutor argued that the appellant had aided and abetted Acosta in taking the wallet from Romero's pocket.There was no other reason, he argued, why the appellant would have put the knife to Romero's neck. As the ...