Appeals from the Superior Court of the District of Columbia (F-7104-00 (Hon. Lee F. Satterfield, Trial Judge) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge,*fn1 GLICKMAN, Associate Judge, and TERRY, Senior Judge.*fn2
After two jury trials, appellant Gene S. Downing ("Downing") was convicted of several charges related to the kidnapping and murder of Vidalina Semino ("Semino") in May 2000. After the first trial, over which the Honorable Lee Satterfield presided, Downing was convicted of conspiracy to commit armed robbery,*fn3 armed robbery,*fn4 armed carjacking,*fn5 armed kidnapping,*fn6 possession of a firearm during a crime of violence ("PFCOV"),*fn7 and carrying a pistol without a license ("CPWL").*fn8 The jury was unable to reach a unanimous verdict on three murder charges and a mistrial was granted as to those charges. A new trial, presided over by Judge Robert Richter, was held on the murder charges, and Downing was convicted of first-degree premeditated murder while armed,*fn9 and two counts of first-degree felony murder predicated on robbery and kidnapping.*fn10
On appeal, Downing contends that his convictions in the first trial should be reversed because: (1) the evidence was insufficient to support his conviction for carjacking while armed; (2) the trial court erred in admitting the videotaped statement of Downing's co-defendant; and (3) the jury verdicts rendered were coerced. With respect to the subsequent trial, Downing contends that:
(1) the evidence was insufficient to support his conviction for first-degree premeditated murder; (2) the evidence was insufficient to support his two convictions for felony murder; and (3) his convictions for felony murder merge. We affirm Downing's convictions in both trials, but remand the case for resentencing in a manner consistent with this opinion.
On May 5, 2000, Downing, along with Allen Cade ("Cade"), Robert Moody ("Moody"), and Leon Butler ("Butler"), robbed and kidnapped Ms. Semino as she left her job at the Omni Shoreham Hotel in Northwest Washington, D.C. After forcing Semino into the trunk of her car, the men drove to Southeast Washington, D.C., where Moody shot her to death in a wooded area near T Street. Originally, Butler was the only suspect arrested in relation to Semino's death. However, shortly after he was arrested, Butler implicated Downing, Cade, and Moody in Semino's murder, and they were all indicted for murder as well as the other related offenses. Butler entered a pre-indictment guilty plea and was not tried with the other men. Moody's case was severed because he wanted to pursue an insanity defense.*fn11 Downing and Cade were tried together for Semino's murder.
At the first trial, Butler testified that the four men had wanted initially to rob someone in a house in Woodley Park, but had abandoned that plan and instead focused their attention on robbing a pedestrian. The men stood watch at a bus stop until Butler spotted Semino at 28th Street. After Butler got Cade's gun, Butler and Cade approached Semino while Downing and Moody stayed behind. Butler knocked Semino to the ground, asked her to "give the money up," and took her purse. Cade took her car keys and entered the vehicle while Butler forced her into the backseat at gunpoint.
Cade drove the car around the block and picked up Downing and Moody on 28th Street. Downing entered the front passenger seat and Moody entered the backseat, such that Semino sat between Moody and Butler. Butler had already searched Semino's purse and removed her ATM card, and Downing searched the purse after he sat in the vehicle. Butler testified that all the men helped to stuff Semino into her trunk at some point after driving away. The parties stopped at a gas station and paid using money from Semino's purse, at which point Moody noticed that Semino's legs were visible from outside the car. This made Butler nervous, and Moody proposed to kill Semino because she had seen their faces. Downing suggested that the four shoot Semino in a wooded area near T Street, Southeast, and, with Butler, gave Cade directions to that location.
The men drove to the wooded area, exited the vehicle and opened the trunk. Downing and Cade asked Semino for her PIN, which she provided. The four pulled her from the trunk and walked her into the wooded area. Semino broke away and Butler chased her, caught her, grabbed her by the arm, and pulled her back to the others.*fn12 The group stood within four to five feet of each other when Moody aimed at Semino and pulled the trigger. The gun malfunctioned, and Moody pulled the trigger again. The gun fired, hitting Semino in the chest. Moody fired another fatal shot at Semino's chest, and she fell onto her face. The four men ran up 22nd Street and west to 16th Street.*fn13
Albert McManus ("McManus"), a friend of Downing, testified as a government witness in the first trial. According to McManus, on May 6, the day after the murder, Downing told him that he had used an ATM card that belonged to a woman who had been fatally shot in the woods near Good Hope Road. Downing also told him that the lady was transported to the woods by car. Roughly two months later, McManus visited Downing's apartment on Marcy Avenue in Oxon Hill, Maryland, and saw a gun in Downing's closet, and remembered that Butler had tried to sell him the same gun in the spring of 2000. Finally, the government presented a videotaped interview with Cade during which he recounted the events that Butler had previously described.
After the government completed its case, Cade testified in his own defense. He testified that he carried a nine millimeter handgun that he gave to Butler on May 5. After Butler knocked Semino down and forced her into the backseat, Cade confirmed that he then drove Semino's car to pick up Moody and Downing and, ultimately, to the Southeast lot. Cade testified that Moody first proposed killing Semino, but that Cade and Downing objected. The four discussed whether or not to kill her for most of the ride, which lasted over an hour. After arriving, "somebody" removed Semino from the trunk, and she subsequently escaped. Moody said, "Get her, get her." Cade and Downing, who allegedly stood together about forty feet from Moody, Butler, and Semino, ran when they heard gunshots. Within fifteen minutes, the two went to the bank where Downing used Semino's ATM card to withdraw $200 and gave half to Cade. They then took a bus towards their homes and used the card again before retiring for the evening.*fn14 Downing did not testify and did not present any other defense evidence.
After closing arguments were presented and the jury was instructed, the jury began its deliberations. Sometime thereafter, the jury revealed to the court that it had reached a partial verdict. The jury also sent the court another note that stated:
We believe that the jury is hung [on some of the counts] because at least one juror refuses to apply the law and disagrees with the charges that were brought against the defendant. We believe there is no disagreement regarding the facts or the evidence. What should we do?
This note was signed by all the jurors except Juror 773. At around the same time, the court received another note signed only by Juror 773, stating "Juror 773 wishes to express her rights as a juror." Appellant moved for a mistrial for the counts for which the jury had not reached a verdict and requested that the court not give an anti-deadlock instruction because it would be coercive because of the eleven to one split.
The court discussed the notes with the parties, including a potential jury instruction, and stated that it would not give a anti-deadlock instruction. In response to an inquiry by the court, the jury stated that it wished to return a verdict. The jury gave a partial verdict and found Cade guilty of all the non-murder felonies and Downing only guilty of conspiracy to commit armed robbery. The jury indicated that it had not reached a unanimous verdict on any of the remaining charges. The court reminded the jury never to reveal its numerical split, because it did not want to appear that it was attempting to coerce the jury by giving an instruction to the jury. The court further instructed the jury, and again stated that it did not intend to coerce the jury:
I'm asking the jury to continue their deliberations in this case with respect to the other charges in this case. And I would indicate and remind the jurors that the verdict, and this is to all the jurors, must be based on the law and the evidence that was presented to you in this case. And so I'm going to ask that you attempt to reach verdicts in the other charges in the case at this time. And so I will excuse you to return to your deliberations now.
After deliberating for several more hours, the jury returned guilty verdicts against Downing for armed robbery, armed kidnapping, armed carjacking, PFCOV, and CPWL. The next day, the jury could not reach a unanimous verdict on the murder counts and the court declared a mistrial as to those charges.
Cade pleaded guilty to second-degree murder while armed after the first trial, and so Downing proceeded to trial alone for the retrial on the murder charges. Butler again testified as a key government witness, reiterating much of his testimony he gave at the first trial but for certain notable differences. As opposed to his testimony at the first trial, Butler testified that he sold his nine millimeter gun to Downing and Cade in April or May of 2000, and clarified that he called Downing on May 6 to ask him and Cade to rob the "mini-mansion" because Butler knew that they had the weapon. When asked, Butler told Cade to give Butler the gun. Butler also testified that Downing, not Moody, first suggested killing Semino.
McManus again testified for the government and told substantially the same story that he told at the first trial. Specifically, he testified that around May 19, 2000, Downing came to his house to tell him that a lady had been shot and killed in the woods near Good Hope Road, Southeast, and that Downing was there with Cade, Butler, and Moody. He also told McManus that Moody shot Semino and that he used Semino's ATM card and that Moody used a nine millimeter gun to shoot Semino. McManus remembered Butler previously tried to sell to him a nine millimeter gun, and that he later saw such a gun when he visited Downing's house.
At the close of the second trial, the court instructed the jury on armed premeditated murder, armed felony murder, armed robbery, kidnapping, armed second-degree murder, and aiding and ...