Appeal from the Superior Court of the District of Columbia (F-3577-00) (Hon. Robert I. Richter, Trial Judge).
Before FARRELL, Associate Judge, and STEADMAN and TERRY, Senior Judges.*fn1
Appellant was indicted for armed robbery, assault with a dangerous weapon (ADW), and carrying a dangerous weapon ("an unknown sharp object"). A jury found him guilty on the latter two charges, but was unable to reach a unanimous verdict on the armed robbery count, which was later dismissed by the government. On appeal, appellant challenges only his conviction of assault with a dangerous weapon,*fn3 maintaining that the trial court committed reversible error by giving the jury an aiding and abetting instruction. We hold that, because there was no evidence before the jury admitted for its truth that allowed the jury to find that appellant was an accomplice to the crime rather than the principal offender, it was error to give the aiding and abetting instruction. Furthermore, because the government did not argue harmless error in its brief to this court (or, for that matter, more than glancingly at oral argument in response to questions by the court), it has waived that point since any harmlessness is not "obvious." Randolph v. United States,
Judge Terry was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on February 1, 2006.
882 A.2d 210, 223 (D.C. 2005). We therefore reverse the ADW conviction and remand for a new trial on that count.
In the early morning hours of May 17, 2000, shortly after midnight, Keith Byrd was on the way home to his apartment on W Street, N.W. He had been at a party earlier that evening where he had consumed a six-pack of beer over several hours, so he decided that he needed to stop and get something to eat before returning home. As he approached a convenience store near his apartment, he was confronted by appellant, whom he had known for about nineteen years. Appellant asked for a cigarette, and Byrd replied that he did not have one. After this brief conversation, Byrd decided to go instead to a nearby carryout restaurant and buy something that was already prepared so that he would not have to cook it when he got home.
Byrd then noticed that appellant and another man were following him. Feeling uncomfortable about them, Byrd changed direction again and headed straight for his apartment. As Byrd pressed the buzzer to be admitted into his apartment building, appellant appeared on the steps. When the door was opened and Byrd entered the lobby, appellant followed him inside while the other man remained across the street. Once they were a few steps inside the apartment hallway, appellant began making vague accusatory comments about "what you're doing," but Byrd ignored the comments because appellant "was too gazed up." The next thing Byrd remembered was being struck in the face with a sharp object*fn4 that caused his mouth to bleed. A struggle ensued in which appellant tried to reach inside Byrd's pockets and take his money. Byrd resisted, but during the struggle appellant managed to rip Byrd's pants and take the cash (a total of $71) that was in his pockets. While this was going on, the unidentified man who had been with appellant earlier came to the door, but Byrd testified that he was unable to enter the building because the door had closed and locked after appellant and Byrd had come inside. Appellant then left, remarking as he went, "Yeah, I got you, like that."
Byrd then passed out for about five minutes but was awakened by another tenant in the building who found him lying in the hallway. He then headed upstairs to the apartment that he shared with his brother, Ronnie Jones, and his brother's fiancée, Rosemary Bush. His brother greeted him at the door. When Jones and Bush asked what had happened to him, Byrd replied that he had just been robbed by appellant, whom he identified by his nickname "Tolu." A few minutes later, Byrd called the police. Sergeant Andre Taggart was the first responding officer, and when he arrived, Byrd told him that he had been robbed by Tolu and another man.*fn5 Byrd went to the hospital later that night for treatment of his facial wound.
Byrd was thoroughly cross-examined by defense counsel. In his questioning, counsel highlighted the fact that Byrd currently had a matter pending in the Superior Court arising from his arrest for possession of cocaine with intent to distribute it. Defense counsel also established that Byrd had violated a condition of his release by being in the neighborhood where the incident took place. Byrd acknowledged that three days after the assault in this case he had pleaded guilty to a charge of attempted distribution of cocaine and had been placed in a drug rehabilitation program. Furthermore, Byrd admitted that on the night of the assault, in addition to consuming alcohol, he had smoked crack cocaine.*fn6 Finally, Byrd said that appellant came into the front hallway of his apartment building and robbed him alone, but that appellant and the other unidentified man had been together beforehand.
The government presented testimony from four other witnesses,*fn7 all of whom corroborated Byrd's implication of appellant in the assault. At the same time, however, they recounted earlier statements by Byrd to the effect that a second person - presumably the unidentified man who Byrd testified had come to the door of the apartment building but never entered it - had participated in the assault by either cutting Byrd or taking money from his pocket. Upon defense counsel's request, the trial court instructed the jury that these prior statements of Byrd, because they were "inconsistent" with his trial testimony, could not be considered for their truth but only in evaluating his credibility.
Appellant did not testify or put on any witnesses in his defense.
At the close of all the evidence, after instructing the jury on the offense of assault with a dangerous weapon, the trial court - over defense objection - gave an instruction on ...