Appeals from the Superior Court of the District of Columbia (CF3-13784-06, CF3-1454-07) (Hon. Herbert B. Dixon, Jr., Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Submitted February 25, 2010
Before PRYOR, TERRY, and STEADMAN, Senior Judges.
Appellants, Rodney Lewis and Jonathan Price, were tried on charges of armed robbery and possession of a firearm during a crime of violence (PFCV). The jury was unable to agree on these charges, but it found both appellants guilty of the lesser included offense of robbery.*fn1 Appellants contend on appeal that the evidence was insufficient to sustain their convictions of robbery and that the trial court erred in admitting testimony about prior statements of the victim, admitting evidence of other criminal acts, and allowing prejudicial remarks by the prosecutor to be heard by the jury. We reject all of these arguments and affirm both appellants' convictions.
On December 29, 2005, at approximately 11:20 p.m., Aaron Gibson was walking in the area of East Capitol Street and 54th Street, S.E., when a silver-colored SUV pulled up and stopped in the middle of 54th Street. Gibson, a high school student, had just crossed 54th Street when two men got out of the SUV and approached him. Gibson knew both men because they had dated his cousin. Appellant Price, whom Gibson later identified as the passenger in the SUV, pointed a gun at Gibson and took his coat, his "messenger bag" (which contained his wallet and his identification), and his cell phone. Appellant Lewis, who Gibson said was the driver of the SUV, stood to one side and at first "didn't do anything," but then Price handed Lewis something (Gibson could not see what it was), and both men "got in the car and pulled off." As the SUV drove away, Gibson went to another phone (the record is not clear about where he found this phone) and called the police to report the robbery. He also telephoned his cousin to say that "two of her friends . . . JB and Rodney" had robbed him.
Within minutes, Metropolitan Police Detective Ali Roberts arrived in response to Gibson's call. Detective Roberts testified that Gibson told him that "JB" and "Rodney" had driven up in a silver SUV and robbed him. Roberts said that Gibson described the gun as a black semi-automatic handgun held by JB and that he identified JB as the driver, although he was not certain whether JB had actually driven the SUV away from the scene. Roberts described Gibson as "highly upset" and "still a little nervous" and stated that, despite what Gibson told him, he "had the impression that [Gibson] wasn't a hundred percent sure" which of the two suspects had been the driver and which had been the passenger when the SUV first pulled up.
About an hour later, Detective Roberts received a telephone call from Gibson providing the name "Jonathan Price" for the person he had previously identified as "JB." He used that information to assemble an array of nine photographs, one of which was a picture of appellant Price. Roberts then went to reinterview Gibson at his home, and Gibson identified Price from the array as one of the robbers, saying, "That's JB, yeah, that's him."*fn2 It was then less than two hours after the robbery had taken place. Detective Roberts subsequently obtained an arrest warrant for Price.
In an unrelated incident about three and a half weeks later, at around 3:00 a.m. on January 21, 2006, Sergeant Antonio Graham of the Maryland State Police was on patrol in Capitol Heights, Maryland, when he noticed a gray Dodge Magnum station wagon acting suspiciously.*fn3 When Sergeant Graham attempted to stop the car, it came to an abrupt halt, and two of its four occupants jumped out and fled. The car then accelerated in reverse but suddenly stopped again. The driver, Price, and the left rear passenger, Lewis, jumped out and fled on foot but were soon apprehended. Another officer on the scene, Corporal Kenneth Goodwin of the Prince George's County Police, noticed that the right front door of the Dodge had been left wide open. Looking into the car through the open door, he saw the magazine of a handgun "protruding out clear as day" from the space "between the center console and [the] passenger front seat." Corporal Goodwin seized the gun, a black Smith & Wesson semi-automatic pistol. No fingerprints were found on the gun.
After learning of the Maryland incident, Detective Roberts prepared an additional nine-person photo array, which included a photograph of appellant Lewis taken after his recent arrest in Maryland. Gibson again had "no trouble" selecting Lewis from the array and identifying him as the other person who robbed him. Some time later, Gibson was also shown the gun recovered by the police in Maryland; he said that it was "just like the one used" when he was robbed.
Gibson testified before a grand jury that he "was robbed by two boys, JB, [whose real name was] Jonathan Price, and Rodney Lewis." Later, shortly before trial, Sergeant Graham was present when Gibson identified both appellants as the two men who had robbed him, stating that Price was the gunman and Lewis was the driver of the SUV, and that each of them had been, in Graham's words, "dating a cousin or some relative." At trial, Gibson stated that he recognized the men who got out of the SUV on the night of the robbery, but when pressed as to who specifically alighted from the driver's side, he said, "I don't want to do this" and "I'm not comfortable" several times in response to the prosecutor's questions. Finally, after a brief recess, Gibson testified that he did not remember whether he saw the two appellants during the robbery. He also admitted, however, that he had previously told the police, his cousin, and the grand jury that Lewis and Price were the robbers; in addition, he acknowledged that he had previously identified both appellants from photographic arrays.
In closing argument, the prosecutor attempted to reconcile Gibson's testimony with his previous out-of-court identifications by arguing that Gibson was afraid to state plainly in open court that Price and Lewis were the robbers. The prosecutor said that Price and Lewis had "targeted the right victim" because "he was small and . . . he was alone and it was dark, and he was weak, and because they knew him. . . .
[T]hey knew they could count on him to come to court and fail to follow through. . . .
[T]hey picked the right victim. They picked the guy who would come to court and, when push came to shove, he would be too scared to point the finger at them." Price's counsel objected to the statement that Gibson was "too scared." ...