Appeal from the Superior Court of the District of Columbia (CF1-25940-07) (The Hon. Robert I. Richter, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before RUIZ, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
A jury convicted appellant Vasile Graure of three counts of assault with intent to kill while armed (AWIKWA), four counts of assault with a deadly weapon (ADW), mayhem while armed, two counts of second-degree burglary while armed, arson, and felony destruction of property, all in connection with a fire at the Good Guys strip club located in the 2300 block of Wisconsin Avenue, N.W., on the evening of November 3, 2007. In this appeal, Graure contends, variously, that the trial court erred when it denied his motion to suppress certain out-of-court and in-court identifications, admitted the out-of-court statements made by a club employee who was engulfed in flames during the fire (and remained in the hospital at the time of trial), curtailed certain cross-examination of the club's manager, and sentenced appellant "based on highly improper considerations." He also contends that the evidence was not sufficient to support his convictions for AWIKWA. Finally, he argues that several of his convictions merge. We address each of these issues in turn, giving our most substantial attention to appellant's argument that his four ADW convictions must merge because they are based on a single assaultive act: igniting the fire that swept through the front section of the club.
For the reasons that follow, we reject appellant's contention as to merger of his ADW convictions. We agree with appellant (and with the government) that his conviction of aggravated assault while armed merges with his mayhem while armed conviction, and that his burglary while armed convictions merge, and we remand for the trial court to vacate either the aggravated assault or mayhem while armed conviction and one of the burglary convictions. In all other respects, we affirm the judgment of the trial court.
Ali Talebnejad, the general manager of Good Guys, testified that he
saw appellant enter the club, through the back door, between 4:00 and
5:00 p.m. on the day in question, and observed appellant at various
times as he ordered food and drink from his table near the back of the
up to tip a dancer, went to the restroom, and used the ATM machine
located inside the club.*fn1 Talebnejad described an
incident during which appellant took a photograph of a dancer, which
was against club rules. The dancer took appellant's cell phone and
gave it to Talebnejad. Talebnejad took the phone to the bar, where
there were two other employees, Vladimir Djordjevic,*fn2
Kathleen Lazorchack, and asked Djordjevic to check to see whether there were pictures on the phone. Djordjevic found a photograph of the dancer and deleted it. TalebnejadtoldLazorchack to return appellant's phone to him and to ask him to leave the club.
Lazorchack, who was a manager at the club,testified that after she told appellant, a little before 8:00 p.m., that he had to leave the club, he picked up his glass of beer and walked toward the front of the club, with Lazorchack trailing him. As appellant reached the door, Lazorchack told him that he could not take his drink outside. Appellant responded by shouting and cursing at Lazorchack and by throwing his glass on the ground, shattering it. Appellant then left the club.
Arefanine Berhane, a cashier at the Chevron gas station located in the 2400 block of Wisconsin Avenue, N.W., testified that he arrived at the station for his shift on November 3 a little before 8:00 p.m., just as appellant was entering the station. Appellant asked Berhane whether the station sold gasoline containers and Berhane showed him a two-gallon can and sold it to him. Appellant also purchased a lighter, paid for and pumped "something like two gallons" of gasoline, and then walked south on Wisconsin Avenue (in the direction of Good Guys).
Valerie Kremer worked as a waitress at Good Guys, and on the evening of November 3 was responsible for serving customers at the three tables in "Section 2," located in the center of the narrow club between the front and back entrances. Kremer saw appellant, whom she had seen in the club earlier in the evening, come back into the club with a red gasoline can and a lighter. Kremer testified that Djordjevic "had his arm around [appellant] to make sure he didn't go any further into the club."*fn3 Kremer, who was about fifteen feet away from appellant, observed appellant "pouring gasoline anywhere he could possibly pour it." She saw a lighter in appellant's hand, and "knew the fire . . . had ignited" because she "felt heat from behind" her as she ran toward the back of the club. Kremer saw Djordjevic "engulfed in flames" and then saw him in the club's kitchen, trying to put out the fire on his body with the sink hose sprayer. There was so much smoke in the club that it was difficult to see, and customers had to help Kremer get out through the back door.
Frank Raucci, a regular customer at Good Guys, who had observed the incident with appellant's cell phone and saw appellant leave the club, also saw appellant re-enter the club. From where Raucci was sitting in the back of the club, he could see that appellant was struggling with another man as the two men were trying to grab each other's arms. Raucci saw a small flame in appellant's hand, and then saw "a huge fire ball that just went  from floor to ceiling of the whole front of the club." People started "running back toward the back of the club" and the man with whom appellant had been grappling (Djordjevic) was "completely covered in flames" and "his whole body was burning." From the rear of the club, Lazorchack also saw the front of the club in flames from floor-to-ceiling and from wall-to-wall and saw Djordjevic "on fire." Once outside the club, Lazorchack heard "[s]creaming and burning and crackling, mostly screaming and tumbling down the steps" from people who had not yet made it outside.
Stephanie Palmer was working as a "shooter girl" (i.e., she sold shots of liquor to customers) at Good Guys on the evening of November 3. Palmer was seated at the front of the club along with her co-worker Saran Davaan at the time the fire erupted. Palmer saw Djordjevic and another man come into the club "wrestling," with Djordjevic trying to get a "gas canister" from the man. The man was "pouring liquid all over [Djordjevic],*fn4 all over the floor, wherever his arm reached." The man "was fighting to pour the gasoline" as Djordjevic grabbed him. A fire started, "flames hit the ceiling," and Palmer and Davaan ran toward the back of the club because the flames "blocked off the doorway" to the front entrance, which would have been "the quickest way to go."*fn5 Palmer testified that "[i]t was hot," "[t]here was smoke everywhere," she "felt like [her] hair was on fire," and the fire was "amazingly huge." There was a lot of pushing and shoving and people were tripping and falling as they tried to get through the narrow space between the tables in the small club.
Samuel Bond was attending a bachelor party at the club along with Michael O'Quin and others on the evening of November 3, and the men were seated in Section 2, about 18 feet from where the two men at the front of the club were struggling with the gasoline can. Bond testified that there were just a few people between where his group was sitting and the front of the club, but "there was no way for anybody to go out . . . the front" because there was "fire all the way across the front portion of the bar and everybody wanted to get away from that."*fn6
Fleeing from the fire, Lazorchack had already made her way outside the club through the rear door when she saw Djordjevic emerge from the building several minutes after the fire started. Djordjevic was "[c]harred from  head to toe," and little was left of his clothing. Djordjevic told Lazorchack to "stay calm" and not to touch him." When Lazorchack asked, "how did this happen," Djordjevic said, "I saw that man coming back with a can and I tried to stop him." Talebnejad also testified that when he saw Djordjevic standing with Lazorchack there was "smoke . . . rising from [Djordjevic]." Talebnejad asked, "what happened?" and Djordjevic told him that "the guy" came back to the club and tried to burn it and that he (Djordjevic ) had tried to stop him.*fn7
Raucci testified that he could see Djordjevic's exposed veins and tissue where skin had been burned off. Djordjevicnever left the hospital where he was taken after the fire, and he eventually died from his injuries. Jessica Schaeffer, one of the dancers at Good Guys who was on the stage located in the front section of the club when the fire ignited, sprained her ankle as she jumped off the stage to try to get out of the club. Of the twenty or more other people who were in the club at the time the fire ignited, no one else sustained injury other than "cuts and bruises from falling down the stairs and over the tables."
Dr. James Jeng, the burn trauma surgeon who treated Djordjevic, testified that Djorejevic sustained third-degree burns over 95% of his body and required multiple skin graft surgeries over a span of many months. Dr. Jeng could smell gasoline on Djordjevic, and testified that "if gasoline is involved, ...