September 6, 2012
DONALD BATES, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF3-22757-07) (Hon. Robert I. Richter, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge
Argued September 20, 2011
Before GLICKMAN and OBERLY, Associate Judges, and KING, Senior Judge.
A jury convicted appellant, Donald Bates, of three counts of robbery and one count of credit card fraud. Two of the robberies, both of them purse snatchings, were committed on consecutive days in March 2006. The third robbery, also a purse snatching, and the fraudulent use of the victim's credit card occurred on the same day in September 2007.
On appeal, though appellant does not challenge his conviction for the 2007 robbery, he seeks reversal of his convictions for the 2006 robberies and for credit card fraud. He makes two principal claims. First, appellant contends, the trial court abused its discretion in denying his severance motion, in which he sought a separate trial on the 2006 charges. The court found that severance was unwarranted because the evidence of appellant's participation in the 2007 robbery would help prove his identity as one of the perpetrators of the prior offenses. Second, appellant asserts, the court erred in denying his motion to suppress incriminating admissions he made when police interrogated him about the 2006 robberies without giving him Miranda warnings. The court denied the motion because appellant was not in police custody when the interrogation took place. In addition to the foregoing claims, appellant also challenges the sufficiency of the evidence, the aiding and abetting instruction, and the court's response to an inquiry from the deliberating jury.
We uphold the trial court's rulings on appellant's motions, and we conclude that appellant's remaining claims lack merit. Accordingly, we affirm appellant's convictions.
-3-I. Factual Background
A. The 2006 Robberies
The first robbery occurred on the evening of March 10, 2006. As Bibi Doobay was walking home, a man passed her on the sidewalk and then turned around and grabbed the purse off her shoulder from behind. Doobay described the robber as African-American and relatively short. After he snatched her purse, she saw him enter the passenger side of a large, older-model Buick or similar vehicle, which drove away. Two witnesses to the robbery called 911 and reported that the car had a D.C. license plate with the number BX-5228. One of those witnesses described the purse snatcher at trial as a young African-American man, around five feet ten inches tall, and the getaway car as an old, large, boxy vehicle being driven by an African-American male. Shortly after the robbery, a stolen credit card in Doobay's purse was used to purchase gasoline at a gas station.
The second robbery occurred the next day. As Andrea Gudeon walked home from a Safeway grocery store, someone ran up behind her, grabbed her tote bag off her shoulder, and then jumped into the passenger side of an older-model car. As the car sped off, Gudeon saw that its license plate number was BX-5228. Gudeon described the robber as a non-Caucasian man, about five feet nine inches tall, who was wearing a hat or a hood. She could not provide a description of the driver of the getaway vehicle. The stolen bag contained some groceries, Gudeon's cell phone, and her wallet, which held cash, credit cards, grocery store discount cards, and the security card to Gudeon's office building. Later on the day of the robbery, Gudeon's stolen credit cards were used at two different gas stations.
Through the license plate number, the police identified the getaway car in the two purse snatchings as a 1986 Buick Regal belonging to Margaret Bates, appellant's mother. On the night of March 11, 2006, police found the vehicle parked on the street. They put it under surveillance, and at around 4:30 the following morning, they saw appellant approach the car. Detective Neil Jones, accompanied by other officers, stopped him and informed him that they believed the car had been used in connection with criminal activity in the last few days. Appellant responded that the "vehicle couldn't have been involved in anything illegal because it was in his possession the whole time. . . . he[ was] the only one that had possession of this vehicle -- his mother's vehicle." (At trial, appellant's mother testified that appellant had primary use of the car, that she had not given anyone else permission to drive it, and that her son did not have any other car.)
The police seized the Buick and had it towed to an evidence bay to be searched. Before they moved the car, appellant asked if he could retrieve his jacket from the passenger compartment. Detective Jones did not allow him to do so. Upon searching the car, the police recovered Bibi Doobay's cell phone from the pocket of the jacket, along with a piece of paper bearing appellant's name. They also recovered Andrea Gudeon's security card from the front passenger floor board, and a tote bag containing two bags of Safeway groceries. Appellant was arrested when he subsequently visited the police station to retrieve the car. In a search of his person incident to his arrest, the police found Gudeon's grocery store discount cards.
B. The 2007 Robbery and Credit Card Fraud
The third purse snatching was on September 22, 2007. As Loren Bausell was walking down the street alone, she noticed a car -- which she identified as an older Buick or Oldsmobile -- stop in the middle of the street. A man exited the car from the passenger side. When Bausell made eye contact with him, the man bent over to inspect the car's tire. She kept walking, but then heard the car pull up behind her. The man she had just seen jumped out of the passenger side of the car, ran at her while screaming obscenities, threw her to the ground, and grabbed her purse. He then reentered the car on the passenger side. As the vehicle drove off, Bausell took note of its licence plate number: BX-5228. She also saw that the driver was a woman. Several hours after the robbery, Bausell identified appellant from a police photo array as the man who had knocked her down and stolen her purse. (At trial, she identified appellant in person.)
One of Bausell's stolen credit cards was used at a gas station on the day of the robbery. A detective visited the station that afternoon and viewed a video which showed a car pulling into the station and parking at a pump at the same time Bausell's card was used. The station attendant told the detective that she recalled the car vividly because she saw a man and woman kissing inside it.
That same day, the police, having obtained a warrant for appellant's arrest, went to his house. Appellant's mother told them he was not there, and that he had her car.*fn1
II. Denial of Severance
Appellant claims the trial court abused its discretion in denying his motion for severance because the evidence that he committed the 2007 purse snatching unfairly prejudiced his ability to defend against the 2006 robbery charges. The trial court acknowledged the possibility that the jury might engage in improper propensity reasoning and find that, because appellant committed a purse snatching in 2007, he was likely to have done it in 2006 as well. However, the court concluded, because the same car was used as the getaway vehicle in all three robberies (as shown by its license plate and other indications), the evidence that appellant used it to commit the 2007 purse snatching would be admissible to prove his identity as the perpetrator of the 2006 purse snatchings even if the charges were tried separately. That would be so even though there were a few differences in how the three robberies were committed; the identity of the car outweighed those differences. Accordingly, the court concluded, the charges "should be tried together rather than having two or three separate trials in which virtually the same evidence would come in, albeit sanitized somewhat." We hold that the court did not abuse its discretion in reaching that conclusion.
The charges against appellant were properly joined under Criminal Rule 8 (a).*fn2
Criminal Rule 14 provides that the court has discretion to order
separate trials of properly joined counts if it appears that the
defendant or the government would be prejudiced by the joinder. "[T]he
trial court's discretionary judgment regarding whether to grant a
severance motion is entitled to great deference, and 'may be reversed
only upon a clear showing of abuse of discretion.'"*fn3
In order to establish abuse of discretion, a defendant
typically "must show the most compelling prejudice, from which the
court would be unable to afford protection if both offenses were tried together."*fn4
This means the defendant must do more than merely show he will stand
"a better chance of acquittal" if the charges are tried
We recognize "the possibility of prejudice whenever similar offenses
are joined in a single indictment of a single defendant[.]"*fn6
Courts therefore strike a balance. "When joinder is based on
the 'similar character' of the offenses, a motion to sever should be
(1) the evidence as to each offense is separate and distinct, and
thus unlikely to be amalgamated in the jury's mind into a single
inculpatory mass, or (2) the evidence of each of the joined crimes
would be admissible at the separate trial of the others. This means if
the denial of severance can be sustained on either ground, it will not
be disturbed on appeal."*fn7
The second ground, commonly referred to as reciprocal or mutual admissibility, "recognizes that the joinder for trial of two crimes does not unduly increase the likelihood that the jury will infer a criminal disposition when the rules of evidence would have permitted the admission of evidence of each crime at the separate trial of the other."*fn8 As the trial court recognized, evidence of other crimes is admissible under the rules of evidence when, inter alia, it is relevant to "the identity of the person charged with the commission of the crime on trial."*fn9
In this case, appellant claims prejudice only with respect to his defense to the 2006 charges. We therefore confine our inquiry to whether, as the trial court concluded, the evidence that appellant committed the 2007 robbery was relevant to prove his identity as one of the perpetrators of the 2006 offenses. That was a material issue at trial, so the "'question remaining'" is simply whether the evidence had probative value.*fn10
Generally speaking, a trial judge may determine that evidence of another offense is sufficiently probative to be admitted under the identity exception when "'there is a reasonable probability that the same person committed both crimes due to the concurrence of unusual and distinctive facts relating to the manner in which the crimes were committed.'"*fn11 For that standard to be met, "[i]t is not necessary that the crimes be identical in every detail nor that they share any single unique characteristic. There need only be enough points of similarity in the combination of circumstances to make it reasonably probable that the same person committed all of the offenses."*fn12 Conversely, other crimes evidence will be found inadmissible "when the combination of circumstances is not sufficiently distinctive that there is a 'logical basis . . . to assume that whoever did one [crime] did the other.'"*fn13
In the present case, there were similarities between the three robberies. In each one there was a principal robber and a getaway driver; the driver remained in the car during the robbery; the victim was a woman walking alone; the robber grabbed her purse or bag from her shoulder and then immediately got into the passenger side of the getaway car, which drove off; and, within a short time, the victim's credit card was used to purchase gas at a gas station. Finally, and most notably, the getaway car in each robbery bore the same license plate.
There also were some differences. The witnesses' descriptions of both the assailant and the getaway driver varied somewhat (notably, the driver was a man in the first 2006 robbery and a woman in the 2007 robbery). The 2007 robbery was more violent than the other two robberies. Most significantly, perhaps, the robberies were not all committed around the same time; the 2007 robbery occurred eighteen months after the 2006 robberies.
Nonetheless, we are persuaded that the similarities outweigh the differences enough to support a reasonable probability that, if appellant committed the 2007 robbery, he also was involved in the two earlier crimes. The crucial "consistent feature" present here is the identification of the getaway car in each robbery through the license plate number BX-5228. That the same car was used in each robbery was prima facie evidence that the same person (whoever it might be) was involved in each robbery.*fn14 That might not have been so if there had been a change in the ownership, possession, or use of the car in the interim between the first two robberies and the third. But the evidence showed there had not been such a change in this case; at all relevant times, the car was linked strongly to appellant and only appellant.*fn15
Given those facts, and the other similarities we have noted in the three purse snatchings, we conclude that appellant's identification as the perpetrator of the 2007 robbery by an eyewitness was legitimately and significantly probative of his identity as one of the perpetrators of the 2006 robbery as well.*fn16
III. Suppression of Appellant's Statements
We turn next to appellant's contention that the trial court should
have suppressed his statements to Detective Jones on the morning of
March 12, 2006, because he was not given Miranda warnings.*fn17
At the hearing on appellant's motion to suppress those
statements, Jones testified that he and other police officers had been
watching appellant's mother's car for several hours when, at about
4:30 in the morning, appellant approached the vehicle. The
officers immediately surrounded the car with two or three police
cruisers so that appellant could not drive away. Appellant was
standing outside the car when Jones confronted him. There were "at
least two" uniformed officers on the scene, along with some officers
in plain clothes. Jones told appellant that the police were "looking
at the vehicle" and conducting an investigation because they believed
the car had been "involved in some criminal activity" within the past
"day or two." In response to Jones's questions, appellant stated that
"it couldn't have been that vehicle because he had been in possession
of it the entire time." Appellant told Jones he had been visiting a
friend nearby and had just left, and when Jones asked appellant to
wait while he confirmed this, appellant said "okay." Jones stated that
he never told appellant that he was under arrest or that he could not
leave. At no time was appellant handcuffed or physically restrained.
Jones acknowledged telling the other officers to "keep an eye on"
appellant until he returned. But according to Jones, appellant never
said that he did not want to wait; rather, he was cooperative and said
that he had not been involved in any criminal activity and that he
wanted to clear things up.
Jones testified that he was at the apartment of appellant's friend for "at least 30 minutes." During that time appellant waited at the car. When Jones returned, he told appellant the police were going to seize the car, and he again asked appellant if he had been involved in any criminal activity. Appellant said no, and that no one else had been driving the car. Appellant asked Jones if he could take his jacket from the car, and Jones told him that he could not. Jones gave appellant his business card and told appellant that his mother could call Jones if she had any questions. Jones also asked if he could call appellant with further questions, and appellant agreed he could. Appellant then left the scene on foot.
Appellant described the encounter differently. He testified that as he approached the car, several uniformed police officers approached him with their "lights flashing," frisked him, did not inform him what was going on, and began questioning him about where he was coming from. Appellant testified that Jones questioned him for about 20 minutes and that he told Jones he had possession of the car. After Jones questioned him, appellant claimed, he "was made to sit on the sidewalk for at least two-and-a-half or three hours" while the police confirmed that he had just come from a friend's apartment. Jones told the officers to make sure appellant did not leave. Appellant testified that he did not believe he had the right to leave or to refuse to answer questions.
The trial court found Jones to be the more credible witness.*fn18 While the experience might have been "very unpleasant" for appellant, the court stated, there was no evidence of circumstances "that would have made [appellant] feel that he was being placed under arrest." Additionally, the court noted, all of appellant's statements "seem[ed] to have come before
he was made to sit on the curb."*fn19 The court found that appellant had not been handcuffed or searched, that he was never told he was under arrest, and that his conversation with Jones had been "consensual." Although the trial court credited appellant's statement that he did not feel free to leave when Jones left to confirm his story, it found that a reasonable person in appellant's circumstances would not have thought he was under arrest. Accordingly, the court found that appellant was not in "custody" within the meaning of Miranda and that no Miranda warnings were required.
We uphold the trial court's determination.*fn20
Miranda warnings are required only when a suspect is subjected to
custodial interrogation. That appellant was stopped for investigative
purposes is not enough to establish that he was in custody for
purposes of Miranda, even "'if a reasonable person would not have
thought himself free to leave'" in the circumstances.*fn21
Custody requires more than that -- either a "formal arrest or
a restraint on freedom of movement of the degree associated with a
It is undisputed that appellant was not placed under formal arrest at
the time he made the admissions at issue. And even if he may have been
seized within the meaning of the Fourth Amendment, we agree with the
trial court that the circumstances of this encounter would not have
caused a reasonable person to "believe he was in police custody of the
degree associated with formal arrest."*fn23 Appellant
was neither handcuffed nor physically restrained in any
way,*fn24 nor was he searched. There is no evidence
that Jones or any of the other officers on the scene brandished any
weapon or made any show of force.*fn25 Jones did not
confront appellant with "obvious evidence of [his] guilt,"*fn26
and it does not appear that the questioning "contribute[d] materially to an atmosphere of coercion and
custody."*fn27 Finally, although appellant emphasizes
the length of time he spent sitting on the curb while waiting for
Jones to return, the length of the encounter alone is not enough to
render it custodial in nature.*fn28 (Furthermore, as
the trial court noted, virtually all of appellant's statements were
made before he waited on the curb for Jones's return.) For these
reasons, we are satisfied that, while appellant's freedom of movement
may have been restrained temporarily, he was not in custody for
purposes of Miranda. Thus the trial court did not err in denying
appellant's motion to suppress.
IV. Remaining Claims
Appellant's remaining claims do not call for extended discussion.
First, viewing the evidence, as we must, in the light most favorable to sustaining the jury's verdict,*fn29 we reject appellant's contention that there was insufficient evidence identifying him as one of the perpetrators of the 2006 robberies.*fn30 His participation in those robberies as either the principal offender or an aider and abettor (i.e, the driver of the getaway car)*fn31 was proven circumstantially by the following facts: the getaway vehicle in both robberies was identified by its license plate as appellant's mother's car; both appellant and his mother confirmed that he used the car at the time of the robberies; when the police searched the car, they found Gudeon's tote bag and security card and, in the pocket of appellant's jacket, Doobay's cell phone (and a piece of paper bearing appellant's name); Gudeon's grocery store discount cards were found in appellant's wallet at the time of his arrest; and appellant was positively identified as the man who robbed Bausell of her purse in 2007 (which was probative of his involvement in the earlier robberies for the reasons explained above).
We also reject appellant's argument that, in contravention of our ruling in Wilson-Bey v. United States*fn32 and subsequent cases, the trial court's instructions on aiding and abetting permitted the jury to find him guilty as an aider and abettor without finding that he had the specific intent necessary to commit the charged offenses. As appellant did not object to the instructions on this ground, he must show plain error to prevail on this claim. That he cannot do. Unlike the instructions we have disapproved, the instruction here did not contain the "natural and probable consequences" language that told the jury an aider and abettor need not have shared the principal's mens rea.*fn33 Rather, the trial court informed the jury, "[t]o find that a person aided and abetted in committing a crime, you must find that the defendant knowingly associated himself with the commission of the crime, that he participated in the crime as something he wished to bring about, and that he intended by his actions to make it succeed." We have held that the failure to inform the jury more explicitly that an aider and abettor must also possess the mens rea that is an element of the offense is not plain error.*fn34
Finally, appellant complains of the court's response to a question from the deliberating jury concerning the 2007 credit card fraud charge. The court's initial aiding and abetting instructions referred only to the 2006 robberies. During deliberations, however, the jury sent a note inquiring whether appellant could be found guilty of the credit card offense if he had not used the card himself. In response, after discussing the matter with counsel, the court referred the jury to the earlier aiding and abetting instruction. This was an appropriate exercise of the court's discretion. "[B]y giving the supplemental instruction [on aiding and abetting], the trial court simply clarified the law for a jury which was experiencing difficulties."*fn35 As the judge stated, there unquestionably was sufficient evidence for the jury to infer that appellant either used the credit card himself to purchase gas, or else gave it to his accomplice to do so. In the latter case he might have been guilty of credit card fraud as an aider and abettor rather than as a principal. Appellant did not ask for permission to present additional argument to the jury on this issue.*fn36 Under these circumstances, we perceive no error in the court's response to the jury's inquiry.
For the foregoing reasons, we affirm appellant's convictions and the judgment of the Superior Court.