Appeal from the Superior Court of the District of Columbia CF3-11236-08 (Hon. John M. Mott, Trial Judge)
The opinion of the court was delivered by: Ruiz, Senior Judge:
Before FISHER, Associate Judge,and PRYOR and RUIZ,*fn1 Senior Judges.
Appellant was convicted in Superior Court of several offenses related to an armed robbery of a group of individuals: one count of conspiracy to commit armed robbery,*fn2 one count of armed robbery,*fn3 four counts of assault with intent to rob while armed (AWIRWA),*fn4 one count of aggravated assault while armed (AAWA),*fn5 and two counts of possession of a firearm during a crime of violence (PFCV).*fn6
On appeal, he challenges the sufficiency of the evidence to support the convictions, on a conspiracy theory, for aggravated assault while armed and assault with intent to rob while armed, and claims that the eyewitness's identification was so unreliable that it would not permit a finding of guilt beyond a reasonable doubt. Appellant also makes two merger arguments, asserting that the four convictions for assault with intent to rob while armed merge into one, and that the two PFCV convictions merge with the underlying convictions for armed robbery and aggravated assault while armed. We discuss each contention in turn, and, concluding that none warrants reversal, affirm appellant's convictions.
The Government's Evidence
The charges against appellant stemmed from a robbery and shooting on the evening of May 2, 2008, on the 4900 block of Jay Street, Northeast.That evening Lorenzo Ross ("Lorenzo"), his father, Lorenzo Ross, Sr., and his cousins, Derrick Ross, DeAngelo Martino, and Martin Scales, were "hanging by the dumpster in the parking lot" of Lorenzo's apartment complex, celebrating Lorenzo Ross, Sr.'s recent release from prison. At some point during the celebration, Lorenzo saw a girl he knew from the complex, Shaelin Rush, and he left the group to talk with her privately. While Lorenzo and Shaelin were talking, they saw a group of five "boys" in the vicinity. Lorenzo saw Shaelin approach the boys, hug them, and then go inside a nearby apartment building. The boys were around the corner from Lorenzo's father and cousins, and neither group could see the other's location, though Lorenzo could see both groups.
Lorenzo recognized one of the boys as appellant because he was standing "right underneath" a lamp post. Lorenzo knew appellant because they rode the bus together to school every day, and that appellant went by the name of "Snoop," something Lorenzo learned when appellant had interrupted his neighborhood basketball game a few weeks earlier because Snoop thought someone had "said something to [his] little brother." At that time, Lorenzo saw that appellant had a tattoo on his arm that read "Rest in peace, Cheese."*fn7 *fn8
Lorenzo testified that after Shaelin went inside, he saw appellant put on a black ski mask and heard him say to the other boys, "y'all ready, let's go." As the group of boys began to move toward Lorenzo's father and cousins, Lorenzo started toward the dumpster to warn his family that he had a "bad feeling" about the boys. Just as Lorenzo got to the dumpster, however, appellant came around the corner with a gun. As appellant rounded the corner and approached the group, Scales was on a cellular phone walking away from the group and, unknowingly, toward appellant. Lorenzo testified that upon rounding the corner appellant said, "give that shit up." Scales testified that appellant said, "you know what it is, let me get that." A second gunman walked behind the group and positioned himself "to the point where [if] [Lorenzo and his group] want[ed] to run he had a perfect angle to shoot [them]." The second gunman, who had a bandana covering his face and wielded a "big handgun" similar to an Uzi, was aiming the gun at the group, "moving" the gun between "different people."
Appellant ordered Scales to "get on the gate," and then "patted [Scales's] pockets." Scales responded by giving appellant $20 that he had in his front pocket. Appellant poked the gun into Scales's side, attempted to search Scales's other pockets and "take [him] down to the dumpsters . . . so he could do a thorough search." Scales reacted by grabbing the gun and trying "to get the gun away from [appellant] or to get away from him." Scales "was swinging [at appellant] trying to hit him with everything [he] had, hoping [appellant] would drop the gun." Scales shouted for the rest of his group to flee; as Lorenzo and the others ran, the second gunman did not attempt to stop them. Scales and appellant fell to the ground fighting and the gun fired. Lorenzo testified that after he heard the gun discharge, he looked back and saw "them still fighting . . . wrestling."Scales tussled with appellant for "a long time," while the second gunman stood about twenty feet away with his gun directed toward Scales. Appellant eventually wrestled free of Scales and took off running with his gun.
After appellant fled, the second gunman kept his gun trained on Scales. Scales raised his arms in submission and told the gunman "you got all of the money that I have." From the porch of a nearby house, Lanette Ross (Lorenzo's mother) and her sister said, "call the police," and yelled at the gunman, "don't shoot him." The gunman paused, raised and lowered his gun three times, and then shot Scales in the right-side of his abdomen.*fn9 Scales "dropped to [his] knees" in "awful pain." MPD officers arrived at the scene a short time later, and Lorenzo reported to them that "Snoop" had committed the armed robbery. On May 6, 2008, Lorenzo identified appellant in a 9-person photographic array, and on May 9, 2008, he testified before the grand jury that appellant was the armed robber.
MPD Officer Ronald Royster testified that he searched the scene of the shooting and retrieved one spent 9 mm shell casing, several unspent .40 caliber cartridges, and the "guide," and "butt plate" of the magazine of a semi-automatic weapon. MPD Officer David Murray testified that he was unable to obtain any fingerprint evidence from the weapon "cartridges . . . [and] cartridge case." The government also called MPD Detective Thurman Stallings, who testified that Lorenzo had identified the robber as "Snoop" during an interview shortly after the robbery occurred and did not "show any hesitation" doing so again when the photographic array was presented on May 6, 2008. Detective Stallings prepared the warrant for appellant's arrest after Lorenzo identified appellant a third time on May 9, 2008, when they spoke prior to Lorenzo's grand jury testimony.
The defense called one witness: Shaelin Rush. She testified that she had played basketball with appellant on the evening of the robbery until about 8:30 p.m., and he was wearing "a red shirt . . . and blue . . . long jeans." Shaelin said that when she saw him five minutes later and gave him a hug, he was still wearing the same clothing. She thought he then went "back on the basketball court," but she did not actually see him "go back there." Shaelin testified that she then left the basketball court and was on her way to a friend's house "at around 9:30 p.m." when she saw another friend, Kevin, who was appellant's "close friend." She hugged Kevin, and after talking to him for a minute, began to leave and walked past a "group of boys . . . [wearing] all black" whom she did not know. She did "not know" whether the group was with Kevin, but "when [she] left the area [she] saw them go in the same direction" as Kevin. Once Shaelin got to her friend's house nearby, she said that she immediately "began hearing gunshots." She testified that she never saw Lorenzo that evening. Shaelin testified both on direct and cross-examination that she did not want to testify in this case.
The jury found appellant guilty of conspiracy to commit armed robbery; AAWA and armed robbery, as to Scales; four counts of AWIRWA, as to Lorenzo, Lorenzo Ross, Sr., Derrick Ross, and Martino; and seven counts of PFCV - one for each of the seven armed predicate offenses. The jury found appellant not guilty of assault with intent to kill while armed*fn10 as to Scales, but found him guilty of the lesser-included offense of assault with a dangerous weapon (ADW).*fn11 The jury also acquitted appellant of carrying a pistol without a license.*fn12 The court dismissed appellant's ADW conviction, merged five of his seven PCFV convictions, and sentenced appellant to a total of 120 months of incarceration, three years of supervised probation, and a $900 fine to be paid to the Victims of Violent Crimes Compensation Fund. Appellant filed a timely notice of appeal.
II. Sufficiency of the Evidence of Co-Conspirator Liability for AAWA
There was no evidence that appellant shot Scales; indeed, the evidence showed that appellant had fled with the $20 before the second gunman fired the shot. The government's theory of Scales's liability for AAWA was that the shooting was in furtherance of the conspiracy of which appellant was a part.
In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme Court held that a defendant may be liable for the acts of his co-conspirator. Id.at 646-47. Thus, "a co-conspirator who does not directly commit a substantive offense may [nevertheless] be held liable for that offense if it was committed by another co-conspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement." Wilson-Bey v. United States, 903 A.2d 818, 840 (D.C. 2006) (en banc) (alteration in original) (quoting Gordon v. United States, 783 A.2d 575, 582 (D.C. 2001)).
"'The government is not . . . required to establish that the co-conspirator actually aided the perpetrator in the commission of the substantive crime, but only that the crime was committed in furtherance of the conspiracy.'" Gatlin v. United States, 925 A.2d 594, 599 (D.C. 2007) (quoting Wilson-Bey, 903 A.2d at 840).*fn13 Appellant argues that his conviction of AAWA must be vacated "because the evidence was insufficient to prove beyond a reasonable doubt that the aggravated assault of Mr. Scales [by the second gunman] was (1) in furtherance of the conspiracy or (2) a reasonably foreseeable consequence of it." Rather, he argues, what the evidence supports is that the shooting of Scales was a "random act of violence" by the second gunman for which appellant is not criminally responsible.*fn14
We conclude that the evidence sufficed to permit the jury to find appellant guilty of AAWA under a Pinkerton theory of ...