Appeals from the Superior Court of the District of Columbia (F-903-99 & F-9137-98) (Hon. Rufus G. King, III, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before RUIZ, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.
A jury found each of the appellants, Anthony Walker and Brian Boyd, guilty of multiple counts of assault with a dangerous weapon ("ADW") (pistol) (D.C. Code § 22-502 (1981)); kidnaping while armed (D.C. Code §§ 22-2101, -3202 (1981)); threats (D.C. Code § 22-2307 (1981)); first-degree burglary while armed (D.C. Code §§ 22-1801 (a), -3202 (1981)); and possession of a firearm during a crime of violence ("PFCV") (D.C. Code § 22- 3204 (b) (1981)). Each was also found guilty of conspiracy (to commit assault, burglary, kidnaping, threats, and robbery) (D.C. Code § 22-105 (a) (1981)); misdemeanor destruction of property (D.C. Code § 22-403 (1981)); carrying a pistol without a license (D.C. Code § 22-3204 (a) (1981)); possession of an unregistered firearm ("UF") (D.C. Code § 6-2311 (a) (1981)); and possession of unregistered ammunition ("UA") (D.C. Code § 6-2361 (3) (1981)). Both Boyd and Walker argue that the trial court erred in admitting co-conspirator testimony, entitling them to reversal of their convictions. Boyd raises a number of additional challenges as well, including that the trial court erred in denying his Batson challenge and his motion for severance; in precluding the admission of a statement that one of the complainants made to police; and by giving (or failing sua sponte to give) certain jury instructions. Boyd also argues that the evidence was insufficient to support his convictions for CPWL, UF and UA, that the evidence did not support two kidnaping convictions as to each victim, and that the court violated his right to be present during all phases of the trial proceeding. Finally, Boyd argues that certain of his offenses merge. We affirm in part, reverse in part, and remand for the trial court to vacate two kidnaping convictions per appellant and all but one of each appellant's ADW convictions.
Appellants' convictions arise out of the events of October 16, 1998, described at trial largely through the testimony of victims Dwayne Easterling and Alonzo Washington and co-conspirator Damion Travis. Easterling, the first of the three to take the stand, testified that, on the day in question, he was at the home of Frances Pettis*fn1 when Washington also arrived at Pettis's house. As the two men stood talking outside Pettis's house, three masked men ran up, threw Easterling on the ground, pulled his jacket over his head, and handcuffed him, and two of the assailants threw him in the trunk of a car.*fn2 Easterling heard the "commotion" of the assailants "trying to get [Washington] in the car" as well. The car pulled off, and after about 30 or 40 minutes, came to a stop. Easterling could hear the men hitting Washington with something and asking Washington "where is the money." The men then removed Easterling from the trunk, took his wallet and cell phone, removed his shoes and socks, tied him up (making sure he couldn't see anything), and then threw him into a shed or abandoned garage. From Washington's voice, Easterling could tell that he, too, had been put in the shed. Easterling then felt stinging on his foot, as if one of the men was burning his bare foot with a cigarette, as the men demanded money. Eventually, Easterling told the men that he had $5,000 in the basement of his mother's house on Rittenhouse Street, N.W.*fn3 One of the men pulled Easterling's hood from over his eyes so that he could see his keys and asked him to identify the key to his mother's house, which he did. Easterling then heard the men debating about which of them should stay at the shed "to be on guard." After a while, Easterling no longer heard voices other than Washington moaning and groaning. Eventually, Washington helped untie Easterling after getting duct tape off of himself. With Easterling still handcuffed, the two ran barefoot toward Easterling's mother's house. Approaching his mother's house, Easterling saw Travis and appellant Walker pacing in front of the house.
Instead of continuing to his mother's house, Easterling and Washington ran to the house of a neighbor, Janet Baken, and asked her to call the police. From Baken's house, Easterling saw a white Lincoln parked nearby (and Baken testified that she saw a white Lincoln with one person in it drive by). Easterling next saw his brother Roger Reddock running out of his mother's house looking "scared," and then saw the white Lincoln driving away as police arrived in the area.
Washington's testimony largely corroborated Easterling's. Washington's eyes were covered by the hood of his jacket during the abduction, but he recognized the voice of one of the abductors as appellant Walker's. Washington testified that he was not familiar with appellant Boyd's voice.*fn4
Prior to appellants' trial, Travis pled guilty to kidnaping, assault, burglary and robbery based on the events of October 16, 1998. He testified at appellants' trial pursuant to a plea agreement with the government. Travis recounted that on October 16, 1998, appellants Walker and Boyd, a man named Michael Owens,*fn5 and he got involved in a "move," meaning a robbery.
Travis, who owned a white Lincoln, explained that he was approached by Walker, Boyd and Owens and said "yes I would go on the move with them."*fn6 The four men got into Travis's car and then made a stop on Allison Street, where Boyd changed into an army-type vest and fatigues. Travis was directed to drive to Ingraham Street, near Georgia Avenue. There, Owens was directed to get out of the car and walk down the alley to see who was in the alley. When Owens returned, there was a brief conversation, and then Travis drove around to the front of a house on 13th Street. While the car was in front of the house, Boyd handed out three sets of masks and gloves for Walker, Owens and himself. While Travis stayed in the car, the other men got out of the car and went to the back of the house. Travis was directed to pull around into the alley in about 30 to 45 seconds. When he did so, he saw two men with clothing over their heads being handcuffed or taped. Walker and Boyd placed one man in the trunk of Travis's car and Owens, who had a gun, placed the other man in the back seat. Travis was directed to drive to a certain alleyway. He stopped the car there, and Walker and Boyd took the two abductees out of the car and carried them to a shed as Owens and Travis stood and watched. Boyd removed shoes from one of the men. Thereafter, Travis acted as lookout. There followed "a conversation about money and drugs." Boyd used a cigarette to burn the foot of one of the abductees. Eventually, Walker, Boyd, Owens and Travis got back into the car and, "divided up the drugs and cell phone and stuff." Travis was directed to drive the car to Rittenhouse Street. He drove past the house and then came back to it a second time, and Travis and Owens then got out of the car. Walker got into the driver's seat of the car. Wearing masks and gloves supplied by Boyd, Travis and Owens, who had "volunteered" to go into the house, went inside the house using keys taken from one of the abductees. Travis had been "told by someone that money was in the house" and was "told" to look in the basement. Travis's understanding was that Boyd and Walker would wait in the car and that any money and drugs found in the house would be "split between all of us." As Travis ransacked the house looking for money and drugs, Owens watched, "holding the gun."*fn7 At one point, Owens held a gun to a man who was in the house and Travis hit the man, who fell. At another point, Owens was talking to a woman in a bedroom and Travis peeped in. The man who had fallen got up and ran out of the house, and Travis chased after him, but, seeing police, told Owens to "come on," and the two ran out the back door of the house.*fn8
We address appellants' assignments of error roughly in the order in which the issues arose at trial.
Before trial, Boyd filed a motion for severance of his trial from that of his co-defendants,*fn9 pursuant to Super. Ct. Crim. R. 14, arguing that "evidence of his complicity . . . is de minimis when compared to the evidence against his co-defendants," thus "raising the specter of guilt by association." He argues that the trial court erred in denying the motion. He relies on Zafiro v. United States, 506 U.S. 534, 539 (1993) ("When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened"), asserting that "[o]f the overwhelming amount of testimony, only a minuscule portion -- other than that of Mr. Travis -- linked Mr. Boyd to the crime spree."
We will reverse the denial of a motion for severance only upon a clear showing that the trial court abused its discretion, which must entail a demonstration "not simply that [appellant] was prejudiced but that [he] suffered 'manifest prejudice' from . . . joinder." Payne v. United States, 516 A.2d 484, 490 (D.C. 1986) (explaining also that "a defendant does not suffer 'compelling prejudice' merely because a significant portion of the government's evidence admitted at trial is applicable only to his co-defendants").We cannot find an abuse of discretion here. It is true that most of the evidence against Boyd came in through Travis's testimony (about which both Boyd and Walker raise a separate issue, see section D infra), but Travis's account attributes to Boyd a significant role in the crimes. Travis testified that Boyd was the one who handed out masks and gloves to the other assailants, both before the abduction and before the burglary. Boyd was also one of the assailants who threw Easterling into the trunk of the car and into the shed, and Travis identified Boyd as the assailant who took Easterling's shoes and burned his foot with a cigarette. In addition, Diggs testified that she saw Boyd in the white Lincoln along with Travis and Walker around the time of the burglary. The evidence that arguably made the government's case against co-defendant Walker stronger than its case against Boyd was Easterling's testimony that he recognized Walker as one of the men in front of his mother's house and Washington's testimony that he recognized Walker's voice in the shed. But, in light of the significant role that Travis attributed to Boyd and in light of Diggs's testimony about Boyd's presence on Rittenhouse Street with Travis and Walker around the time of the burglary, we do not agree that the evidence against Boyd was so "minuscule" that he was prejudiced by joinder of his trial with Walker's.*fn10
During jury selection, when counsel were exercising their peremptory strikes, the prosecutor struck only African-American female jurors through round seven,*fn11 and then struck two African-American male jurors. Citing Batson v. Kentucky, 476 U.S. 79 (1986), Boyd's counsel raised an objection based on the "numbers" (of African-American females stricken) and on the fact that "many of the strikes by the Government were people who had no answers to any of [the court's preliminary] questions."*fn12 After hearing the prosecutor's explanations and Boyd's response, the court denied the Batson challenge. The fourteen-person jury that was seated had (including alternates) eleven African-Americans, including nine African-American women. On appeal, Boyd renews his Batson challenge, contending that he is entitled to reversal of his convictions because the court failed to "conduct the appropriate probe" and because the trial court's finding that the prosecutor's explanations were not pretextual "does not comport with the record."
When Boyd raised his Batson challenge, the court first observed for the record that the jury venire had consisted of 68 prospective jurors, 22 of whom were white and 46 of whom were black.*fn13 The court also noted that Boyd was "not pointing to white nurses who were questioned and black nurses who were not, things of that nature which gives a clear suggestion that there is a decision made based on race . . . ." The court understood, however,that "numbers alone can raise a prima facie case." The court therefore sought explanations from the prosecutor about her strikes.*fn14
The prosecutor responded that she struck juror 23 because she "had neglected to inquire of [the juror] what her opinion was of the law enforcement involved in prosecuting her son," who the juror had said was serving a sentence of "about . . . nine years." As to this juror, defense counsel said that she would "submit," recalling that the prosecutor had "wanted to bring that person back up." The prosecutor explained that she struck juror 28 because this juror "gave a very snippy attitude" and "seemed as though she was taking offense to me . . . as though she changed the tone of her voice when I inquired of her." Regarding juror 29, the prosecutor explained that she observed "a gaze between [the juror] and the defendants" as the juror approached the bench as well as "gazes toward the juror from the defendants" (who, the judge observed, "were present at the bench throughout the voir dire") that the prosecutor thought were inappropriate. The prosecutor struck jurors 25, 46, and 52, who were not employed outside the home, because of the prosecutor's experience that, for unemployed jurors, "being on time is always a problem;" they "just really frustrate the process." Continuing her explanation, the prosecutor stated that she struck juror 41, a certified nursing assistant in a nursing home, because she "worked within a close area of this particular offense," because she "did like social work type of work," and because the prosecutor thought that "to some extent some of the things she dealt with [in her work] might kind of haze her opinion as to what's going on." Regarding juror 21, the prosecutor said that she was "not sure," but thought that juror 21 was one of the jurors who referenced vacation plans and because "I really thought the vacation issue or work travel was going to be an issue with her." As to jurors 56 and 59, both African-American males, the prosecutor explained that she struck them because they were "giving me the once over" and "looking me up and down," causing the prosecutor to anticipate a situation like one she explained had "created problems in the middle of a trial" in another case.
The court noted that at that point the burden shifted to Boyd to show that the government's explanations were pretextual. Boyd's counsel reiterated that none of the jurors whom the prosecutor struck had given affirmative responses to the preliminary questions that the court had asked, and argued that "without more, [the prosecutor's] answers are a cover for discriminating against the black race and females." Boyd's counsel added that "the argument that somebody who doesn't have a job might be late is not a normal argument," because "[e]verybody is sort of a homemaker and doesn't have a job because nobody has to go to work during the trial . . . ." Finally, Boyd's counsel responded that the prosecutor's reliance on gut feelings and about "the attitude and the look" was not sufficient "to get beyond Batson."*fn15
The court noted that the prosecutor's explanations "don't have to amount to a challenge for cause, they only cannot be for discriminatory reasons." The court also observed that "the prosecutor who stands accused of discriminating against blacks is herself black," a fact that in the court's view did not preclude discrimination but "makes it, if anything, less likely if it's a factor at all." While recognizing that "even one [strike] for racial motivation is unacceptable," the court found that the prosecutor's strikes were "less out of balance on the numbers case," and that the prosecutor's explanations "seem to me to be within the ambit or perimeter of good faith possibilities . . . I'm not able to find under these circumstances that they are pretextual, sham explanations."
Boyd now faults the trial court for not "prob[ing] the prosecutor to determine why similarly situated jurors were treated differently," and argues that the "sham" nature of the prosecutor's explanations is "strikingly obvious" when one looks at jurors the prosecutor did not strike, who "bore close resemblance to" the stricken jurors. The fact that the prosecutor did not strike these jurors, Boyd argues, provided the trial court with "overwhelming evidence that the true basis for the strikes was [jurors'] race and gender." Boyd also emphasizes that the prosecutor relied on reasons inconsistent with what some stricken jurors said, and argues that the prosecutor's explanations referring to jurors's "haze" and "snippiness" were not legitimate reasons.
The record does show that the factual premise for some portions of the prosecutor's explanations was incorrect. For example, juror 21 had made no mention of vacation plans and juror 41 did not say that she worked near the crime site (only that she knew the general area of "Ingerman [sic] and Georgia Avenue").*fn16 Boyd is also correct that the prosecutor did not strike three jurors who had similarities to stricken jurors: juror 43, a nurse who worked in a facility three blocks from the crime scene, and who had vacation plans; juror 24, who was a nursing technician; and juror 44, who was retired, and thus did not work outside the home.*fn17 But, as can be seen from the summary of Boyd's counsel's response that we have set out above, Boyd's counsel pointed out none of these discrepancies, and thus did not alert the trial court that ...