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In Re D.N.

May 2, 2013

IN RE D.N., APPELLANT.


Appeal from the Superior Court of the District of Columbia (DEL-2910-08) (Hon. Patricia A. Broderick, Trial Judge)

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

Argued March 28, 2012

Before FISHER and OBERLY, Associate Judges, and WAGNER, Senior Judge. Opinion for the court by Associate Judge FISHER.

Dissenting opinion by Associate Judge OBERLY at page 19.

Following a bench trial, D.N. was convicted of one count each of felony murder, *fn1 robbery, *fn2 conspiracy to commit robbery,*fn3 receiving stolen property,*fn4 and felony destruction of property,*fn5 all in connection with the robbery and murder of Ronald Robinson in the summer of 2008. After Eric Palmer and D.N. beat and robbed Robinson of his money and car keys, Palmer and a man identified as "Fat Sean" continued to bludgeon Robinson, whose body was found on the scene. On appeal, D.N. argues that the evidence was insufficient to prove that the killing of Robinson was committed "in furtherance of" the common scheme to rob him, and that, at the very least, a remand is required because the trial court applied an improper legal standard for accomplice liability when it concluded that D.N. was guilty of felony murder. D.N. also argues that the adjudications should be reversed because the trial court based its verdicts on a clearly erroneous factual finding. We disagree with D.N.'s arguments and affirm.

I.Facts

In early July 2008, D.N. and Palmer were walking down the street when they saw Ronald Robinson ("Dudaman") and decided to rob him. The testimony of Michael Hickman, a government informant, provided the primary evidence that D.N. was involved in the robbery. Hickman was not present when the robbery and murder took place, but he testified that D.N. admitted his involvement several weeks after the killing and then again at a later date when the government arranged for Hickman to record a conversation with D.N. That video and audio recording, although of poor quality, was admitted into evidence.

According to Hickman, D.N. said "they seen Dudaman and they decided to rob him."Hickman later clarified that "[i]t was more like Eric [Palmer] decided to rob [Robinson], and [D.N.] was with him."The two men started "whooping [Robinson]" in an alley, meaning that "they just started beating him."When Hickman was asked if D.N. said "what if anything was used to whoop the victim in this case?," Mr. Hickman said "No."*fn6 At some point Palmer told D.N. to "get

[Robinson's] jeans." D.N. "stopped and went in the dude's pockets," taking "$45 and a set of car keys." "Eric continued to beat him and put him in the trash can." D.N. "said he was trying to get the car started[,]" but it "wouldn't start or something."

D.N. "was about to walk off" when he looked and saw Robinson climbing out of the trash dumpster. Joined by someone named "Fat Sean," who emerged on the scene sometime after the robbery began (the record does not make clear when or how), Palmer then resumed beating Robinson. D.N. claimed that he "just stood back[,]" taking "no part in it."

Evidence at trial presented a gruesome scene. When investigating the crime, Detective John Bevilacqua and other officers found Robinson's body lying in a pool of blood next to a dumpster in the alley. He was clad in his socks and underwear. Robinson's jeans were lying on the ground near the driver's side of his car. His body was covered with "debris . . . from the cinder block . . . [and] the red bricks" lying nearby.

It appeared that the assault had commenced in front of a blue Buick, where a pool of blood had formed. According to Detective Bevilacqua, "You could follow, literally follow the blood trail, from where the decedent was found to the first smaller dumpster, and then back from there to the -- in front of this vehicle."Two bricks appeared to be missing from a nearby retaining wall.Half of a brick was under the Buick.In the pool of blood was a "fragment" which looked like "the [concrete] core of one of the bricks missing from the retaining wall."Several pieces of broken cinderblock were lying nearby.

Parked near the Buick was a black Chrysler with a smashed window and "personal effects . . . strewn" around. D.N.'s fingerprint was found on the Chrysler,and he admitted to police that he broke into it.Robinson's Chevy Impala was nearby, unlocked, with keys in the ignition. Robinson's wife testified that when her husband's car was returned to her, the keys were missing. None of the prints recovered from the Buick or the Chevy matched D.N.

Robinson's body "was partially covered with caked blood and had several injuries characterized as abrasions, contusions, and lacerations to the head, to the torso, to the extremities."His skull was fractured and "there was a lot of hemorrhage under the scalp, on the left and the right side."The medical examiner found "fragments of concrete" in the wounds on Robinson's head. The cause of death "was major blunt impact injuries," apparently caused by "the piece of concrete whatever it is that was used, but the heavy object that was used."

The trial court specifically credited Hickman's testimony and noted that it had "re-listen[ed] to ...


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