Appeal from the Superior Court of the District of Columbia (F-751-06) (Hon. Erik P. Christian, Trial Judge)
The opinion of the court was delivered by: Senior Judge Ferren.
Before FISHER and OBERLY, Associate Judges, and FERREN, Senior Judge.
Opinion for the court by Senior Judge FERREN.
Concurring opinion by Senior Judge FERREN, at p. 22.
FERREN, Senior Judge: Percy Jordan appeals his convictions for
first-degree murder while armed/felony murder (with aggravating
circumstances),*fn1 second-degree murder
armed,*fn2 robbery of a senior citizen,*fn3
conspiracy to commit robbery,*fn4 and five
counts of credit card fraud.*fn5 He argues that the
trial court erred by (1) declining, in response to a note from the
jury, to answer its question whether the word "cause" in the
first-degree murder instruction meant "physically striking" the
victim; (2) limiting cross-examination of the only eyewitness; (3)
overruling the defense objection that the prosecutor's closing
argument impermissibly shifted the burden of proof; and (4) denying
the defense motion to strike appellant's "alias" from the
indictment.*fn6 None of these arguments has merit and
thus we affirm appellant's convictions, subject to remand for
amendment of the judgment and commitment order to account for merged
The charges against appellant grew out of the robbery and murder of David Rosenbaum. According to the government's evidence, on January 6, 2006, Rosenbaum left his house in Northwest D.C. to take a walk after dinner. At the time, appellant and his cousin, Michael Hamlin, were driving around nearby in Hamlin's car. As they were driving, appellant -- who had with him a foot-long, hard, black plastic pipe -- said, "Let's go get someone," which Hamlin understood to mean rob someone. Hamlin parked the car on Gramercy Street at 38th Street, N.W. At that point they spotted Rosenbaum, who was wearing headphones, walking alone down the street.
Hamlin and appellant then moved the car to the other side of the street. Appellant got out and ducked behind a tree along Rosenbaum's path. As Rosenbaum passed the tree, appellant jumped out and struck him in the head and waist with the pipe. Rosenbaum fell. Hamlin ran over and took the wallet from Rosenbaum's back pocket. The wallet contained $265 to $275 in cash, as well as credit cards, bank cards, a debit card, and a driver's license. Appellant and Hamlin then drove to an Exxon station on Connecticut Avenue, N.W., where Hamlin used a Rosenbaum credit card to fill up the gas tank while appellant went inside the convenience store to buy snacks. They later used Rosenbaum's credit card to purchase items at a CVS store and a Safeway, both in Southeast D.C. Rosenbaum died two days later on January 8, 2006. The physical strike to his head had caused a blood clot, which in turn caused his brain to swell.
The government established its case against appellant primarily through Michael Hamlin's testimony. Hamlin had turned himself in to the police shortly after the robbery upon learning that Rosenbaum had died from his injuries. During his initial interrogation, Hamlin told homicide detectives three false accounts of what had happened on January 6 before finally admitting his role in Rosenbaum's assault. Hamlin eventually pleaded guilty to second-degree murder, robbery, and conspiracy to commit robbery. As part of his plea agreement, Hamlin testified on behalf of the government and implicated appellant as the person who had physically struck Rosenbaum during the robbery.
In addition to Hamlin's testimony, a friend of appellant, John Snowden, testified for the government about a conversation he had had with appellant on January 11, 2006, five days after the incident. Snowden testified that appellant had told him that "if his cousin Mike say something he'd be gone a long time." Appellant went on to say "something about a credit card and a bank card," and added that he and Hamlin had "caught a cracker sleeping," which meant, according to Snowden, that they had caught a white person who did not know what was about to happen to him.
Appellant's defense theory was that Hamlin, not appellant, had attacked Rosenbaum, and that Hamlin was lying to avoid a longer prison sentence. The defense, therefore, focused on Hamlin's credibility. The only defense witness was Detective Edward Truesdale of the Metropolitan Police Department. Detective Truesdale testified that Hamlin had given changing versions of his involvement in Rosenbaum's death. Defense counsel tried to elicit that Truesdale had been the one who suggested to Hamlin that his cousin (appellant) had instigated the robbery. Although Hamlin, during cross-examination, had admitted that Detective Truesdale had suggested as much, the detective himself testified that he did not remember asking a question that would have suggested that Hamlin should implicate his cousin.
Appellant contends that the trial court erred by refusing to answer a question from the jury during its deliberations. With respect to the principal charge, first-degree murder while armed/felony murder (with aggravating circumstances), the court instructed the jury with the elements of the offense, the first of which was the required finding that "the defendant caused the death of the decedent, David Rosenbaum." The court added:
A person causes the death of another person if his actions are a substantial factor in bringing about death and if death is a reasonably foreseeable consequence of his actions. Death is reasonably foreseeable if it is something which should have been ...