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Terrence Fox, Maurice Smith, and Donnell N. Stewart v. United States

January 27, 2011


Appeals from the Superior Court of the District of Columbia (CF3-29323-07, CF3-29320-07, and CF3-29317-07) (Hon. Robert I. Richter, Trial Judge)

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

Argued December 14, 2010

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and SCHWELB, Senior Judge.

A jury convicted appellants Terrence Fox, Maurice Smith, and Donnell Stewart of multiple charges stemming from their armed robbery of a liquor store and the ensuing car chase.*fn1 On appeal, appellant Stewart asserts that the evidence was insufficient to support his convictions for unlawful possession of a firearm by a felon, for the "while armed" element of armed robbery, and for possession of a firearm during a crime of violence. In addition, he argues that the jury instruction on aiding and abetting liability was erroneous and that his convictions for reckless driving and fleeing from a law enforcement officer should merge.

Appellant Fox argues that the trial court committed reversible error when it failed to stop the prosecutor from discussing, during rebuttal argument, documents that were not in evidence. All three appellants challenge their convictions for carrying a pistol without a license, unlawful possession of a firearm, and unlawful possession of ammunition, arguing that the manner in which Certificates of No Record (CNRs) were admitted to prove these charges violated their Sixth Amendment rights. Building on this argument, appellant Smith asserts that the admission of these CNRs tainted all of his convictions.*fn2 Finally, all three appellants assert that their convictions for theft and receipt of stolen property should merge. For the following reasons, we accept a few of appellants' claims and reject the rest.

I. The Factual and Procedural Background

On December 20, 2007, Demetrius Washington, Terrence Fox, Maurice Smith, and Donnell Stewart "planned to go rob [a] liquor store" in northeast Washington, D.C. To execute their plan, Mr. Smith and Mr. Fox stole a minivan by "popping out" the ignition and using a screwdriver to start the vehicle. Mr. Fox provided four masks and four sets of gloves for the men to wear. The men also planned to use handguns during the robbery, and Mr. Washington, Mr. Fox, and Mr. Smith each brought his own firearm. Mr. Stewart did not have his own handgun and did not bring a weapon to the liquor store.

Mr. Stewart drove the group to the Ole Reliable Liquor Store on Rhode Island Avenue, N.E. Mr. Washington testified that on the way to the store, he "gave [his gun] to [Mr. Stewart] and, before we got to the liquor store, I took it back from him before we entered the liquor store."

Employee Virna Ingram was working a lottery machine near the front of the liquor store when the four masked men, three holding guns, entered. Mr. Smith and Mr. Fox ran to the main part of the liquor store while Mr. Washington pointed his gun at Ms. Ingram and demanded and took money from her drawer. Mr. Washington was wearing a "navy blue or black hoodie."Mr. Stewart was standing near the store's front window, also wearing a mask and a hoodie but not holding a gun. He ordered some of the customers in the store to empty their pockets and get on the floor.

Mr. Fox and Mr. Smith went to the sales counter in the main part of the store, where Daniel Wright and Paul Toor were working. Mr. Wright testified that both men were wearing masks, and that one of them -- who was wearing "regular street clothes" -- pointed his gun at Mr. Wright and told him to open the cash register. The other man moved toward Mr. Toor, who ran into an office, locked the door, and pushed the security alarm to call the police. Because the register was turned off, it would not open, and Mr. Fox and Mr. Smith had to resort to taking money from a second lottery machine next to the cash register.Mr. Toor testified that the robbers took between $600 and $700.

Mr. Stewart alerted his accomplices that Toor had pressed the security button, and the robbers left the store. In the parking lot, they ran directly past Metropolitan Police Department Detective Jamell Stallings and her partner. Indeed, the robbers ran so closely to Detective Stallings that she had to move out of their way. Mr. Stewart resumed his position in the driver's seat of the minivan, and the other three sat in the back.Detective Stallings and her partner got into their unmarked cruiser and followed the minivan, which Stewart drove away from the store at a high rate of speed, weaving in and out of traffic.

Officer James Chatmon took over the pursuit in his marked police cruiser with lights and sirens activated as the minivan drove toward the LeDroit Park neighborhood. At one point, the minivan sideswiped another vehicle, "mangling the driver's side," before turning onto W Street, N.W. The van then proceeded through an alley and into a parking lot.

Officer Mickey Green, an officer with the District of Columbia Housing Authority Police Department, was in the parking lot as the minivan arrived.Officer Green testified that Mr. Stewart looked him "dead in [the] face" as Stewart drove by. The minivan crashed into a tow truck, damaging the van.Mr. Stewart got out of the driver's side door and ran towards 4th Street; he was eventually apprehended by an MPD officer on the nearby campus of Howard University.

Officer Green saw Mr. Fox exit the passenger side door, followed by Mr. Smith, and he saw Mr. Washington attempting to get out of the driver's side door before Officer Chatmon ordered him to the ground. Officer Green helped arrest Mr. Fox, and Mr. Smith was also taken into custody at the scene. Detective Stallings identified Mr. Washington, Mr. Fox, Mr. Smith, and Mr. Stewart as the four masked men who had run past her ...

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