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Carter v. United States

September 18, 2008


Appeals from the Superior Court of the District of Columbia (F-4769-05 & F-4795-05) (Hon. Wendell P. Gardner, Jr., Trial Judge).

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

Argued May 21, 2008

Before KRAMER and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.

Appellants Rodney Tucker and Sean Carter each were convicted of assault with intent to commit robbery while armed (AWIRWA), see D.C. Code §§ 22-401, -4502; assault with a dangerous weapon (ADW), see D.C. Code § 22-402; two counts of possession of a firearm during a crime of violence or dangerous offense (PFCV) (one count based on the AWIRWA conviction, and the other based on the ADW conviction), in violation of D.C. Code § 22-4504 (b); possession of an unregistered firearm (UF), in violation of D.C. Code § 7- 2502.01; unlawful possession of ammunition (UA), in violation of D.C. Code § 7-2506.01 (3); and carrying a pistol without a license (CPWL), in violation of D.C. Code § 22-4504 (a). In addition, Carter was convicted of fleeing a law enforcement officer, see D.C. Code § 50-2201.05b (2005 Supp.). Both appellants argue that the evidence was insufficient to support their convictions. Carter argues in addition that his conviction should be reversed because he was prejudiced by the erroneous aiding and abetting instruction that the court gave to the jury and by the court's having permitted the jury to hear the tape of a 311 call that, he asserts, was more prejudicial than probative. Carter also argues (and the government agrees) that his convictions for AWIRWA and ADW should merge.

We agree that the AWIRWA and ADW convictions -- for both Carter and Tucker -- merge, and accordingly we remand to the trial court to vacate the ADW convictions and the PFCV convictions predicated on them. In all other respects, we affirm the judgments of conviction.

I. Summary of the Facts

On August 20, 2005, Frank Young was walking in the 1200 block of Irving Street, N.E., carrying a bag of items that he had purchased at a farmer's market and wearing a pouch that contained his work credentials, credit cards and driver's license. The credentials, credit cards, and other items fell out of the pouch and onto the ground. A man who was walking behind Young, whom Young had never seen before but who was later identified as appellant Tucker, said, "you dropped something." Young turned around and retrieved his dropped items, thanked Tucker, and proceeded toward 13th Street, with Tucker following him. Young turned around and Tucker said, "Oh, what about me?" Tucker then reached into a pouch and pulled out a pistol. Young noticed that the pistol had a "smokey grayish type image around the barrel." Tucker's finger got caught in the trigger housing and the weapon fired, pointing downward. Young ran to a nearby house, where he climbed a fence and hid for about five minutes.

Kevin Webb lived at 1235 Irving Street, N.E., and that afternoon, while standing in his driveway at the side of his house, he heard a gunshot. After the gunshot, Webb heard a voice say, "go man, go," and saw two cars, a black Maxima and a gray Mazda 626, drive by in opposite directions. Webb could not tell from which direction the voice had come. The Maxima headed west toward 12th Street and the Mazda headed east towards 13th Street. Webb could not see who was in the gray Mazda, which had previously been parked in front of the house belonging to Webb's next door neighbor, and which Webb had never seen on his block in the ten years he had lived there. Webb next saw an individual, later identified as Tucker, walk by, toward 13th Street, "right behind" the Mazda.

Webb's neighbor, James Fuqua, was on the back porch of his house at 1231 Irving Street, N.E., when he heard a gunshot. He went to the front of his house, looked out a front window, and saw a man, later identified as Tucker, walking toward 12th Street. He also saw a gray Mazda with "unusual" tinted windows parked in front of his house, which was "unusual." He explained that his block of Irving Street is "a quiet residential street, so usually it's either my neighbor or a neighbor across the street that's parked if there's anybody parked in front of my house." Fuqua heard someone who was "down the street towards 13th Street" yell, "go man, go." He saw the gray Mazda take off toward 13th Street and a black Maxima drive slowly toward 12th Street. "Right then," Fuqua testified, Tucker changed directions and "jogged back toward 13th Street."*fn1 Nobody else was on the sidewalk.

When Young returned to the street to get his bag, which he had dropped when he ran away from Tucker, he saw Tucker walking toward 12th Street. Tucker said to him, "if you know like I know you'll keep running." Once again, Young ran and hid.

Metropolitan Police Department (MPD) Officer James O'Gorman heard the "call for . . . a sound of gunshots" at 4:20 p.m., and he and his partner, Officer Page, immediately responded to the 1200 block of Irving Street. Young again emerged from hiding just as the police officers arrived, and he told the police that he had been robbed,*fn2 and that the assailant had a weapon, had run east down Irving Street and either turned south onto 13th Street or continued on Irving Street. Webb gave the police a description of the gray Mazda, telling them that it was a silver gray Mazda 626 with tinted windows. Detective Dexter Martin arrived and Young, Fuqua and Webb gave him similar descriptions of the man they had seen.

MPD Officer Matthew Miller and his partner, Officer Matthew Copsey, were on duty that afternoon in uniform and in a marked scout car when they heard a call go out for an armed robbery. At 4:28 p.m., they received a look-out for a black Maxima and a gray Mazda 626 with tinted windows. In the 1600 block of Mount Olivet Road, about two miles from the 1200 block of Irving Street, N.E., Officer Copsey pointed out a gray Mazda 626 with tinted windows. Officer Miller performed a U-turn and followed the gray Mazda for a couple of blocks, then pulled up beside it at a traffic light to get a better view of the occupants. When the light turned green, the Mazda pulled into the far left lane, turned left onto 26th Street, and then turned right into the Langston golf course parking lot. At that point, the officers activated their emergency lights and sirens, and the Mazda "proceeded to flee" through the parking lot, driving erratically and at a high rate of speed. The Mazda exited the parking lot onto Benning Road and, while attempting a left turn, collided with a large SUV.

Immediately as Officers Miller and Copsey pulled up to the Mazda, the driver, later identified as appellant Carter, jumped out of the driver's side door and began to run. Officer Copsey pursued Carter on foot and apprehended him a short distance away at about 4:35 p.m. Officer Copsey determined that Carter's address was on Clay Place, N.E., about six miles away from the 1200 block of Irving Street, N.E. Officer Miller testified that the Mazda's passenger, later identified as appellant Tucker, remained seated in the front by the door that had been hit by the SUV. Officer Miller, who was "at the [collided] vehicles" within a few seconds, walked around to the driver's side door with his weapon drawn and immediately saw a revolver to the left of the driver's seat. Officer Miller seized the weapon "[b]ecause it was accessible to the passenger in the vehicle." Miller placed handcuffs on Tucker and then extracted him from the vehicle through the driver's side door because the passenger side door had "significant damage to it" and Tucker was "blocked in." A few minutes later, Officer Copsey returned with Carter in custody.

Subsequently, Detective Martin brought Young to a show-up procedure where Young identified Tucker as the person who had drawn the gun on him. When shown the handgun recovered from the Mazda, Young said, "That's it. It was gray . . . like that." Officers O'Gorman and Page took Webb to Benning Road where he identified the Mazda as the car he had seen earlier on his street. At a show-up identification, Fuqua identified Tucker as the person he had seen walking in front of his house, recognizing Tucker "instantly." Fuqua also identified a vehicle ...

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