Argued October 24, 2014
Appeal from the Superior Court of the District of Columbia. (CF3-15607-09). (Hon. Michael L. Rankin, Trial Judge).
Erek L. Barron, for appellant.
David P. Saybolt, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John Truong, and Magdalena Acevedo, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and EASTERLY, Associate Judges, and NEBEKER, Senior Judge. Dissenting opinion by Associate Judge EASTERLY at page 15.
Nebeker, Senior Judge
Appellant Bobby Johnson appeals his jury convictions of assault with a dangerous weapon (" ADW" ), aggravated assault while armed (" AAWA" ), mayhem while armed (" MWA" ), unlawful possession of a firearm (" UPF" ), carrying a pistol without a license (" CPWL" ), possession of an unregistered firearm (" UF" ), unlawful possession of ammunition (" UA" ), and three counts of possession of a firearm during a crime of violence (" PFCV" ). Appellant presents two arguments on appeal. First, appellant contends that either the trial court failed to make a Batson finding that the government's peremptory strikes were not the result of purposeful discrimination or the trial court's Batson finding of no purposeful discrimination was clearly erroneous. Second, appellant contends that some of his convictions merge. We affirm appellant's convictions, and remand for the trial court to merge the appropriate offenses and resentence appellant consistent with this opinion.
The underlying charges stem from the following factual scenario. At the time of the shooting, the victim was scheduled to testify at trial against appellant's brother, Jonathan " Bow Wow" Johnson. On his way to play basketball on July 15, 2009, the victim walked around a corner and saw appellant. " I just looked at him and then that's when he must have saw me, and he was like, what's up, homey, and then immediately he whipped out [a gun] and just started shooting." " [T]he first ones I felt was in my butt. And then once I got shot in my right leg, I ain't feel no more. I just felt me trying to drag myself behind -- on the side of the building."
The victim sustained several injuries. One bullet " lacerated the rectum, and it had gone in and there are several blood vessels in this area which were bleeding." The victim still used a colostomy bag at trial. In addition, a bullet fractured the victim's right knee and tibia, causing mobility
problems that persisted until at least the date of trial. The victim stated that his leg " was never going to be like God intended it to be" and that he would need to undergo further operations to save his leg.
During voir dire, the court asked several questions of each juror and both appellant and the government were offered an opportunity to ask follow up questions. Following voir dire, the government used peremptory strikes on jurors number 018 and 442, two African American males. The trial court had questioned these jurors during voir dire, but the government did not ask them additional questions. The trial court sua sponte pressed the government for a race-neutral explanation for the strikes:
THE COURT: Would counsel approach the bench.
THE COURT: I want the government to explain these two strikes, juror 442 and juror 018.
MS. ACEVEDO: 442 is the older man, I thought he was very soft spoken and I thought that he would get pushed around in a jury.
THE COURT: That doesn't pass muster.
MS. ACEVEDO: That he's soft spoken? To me he seems like somebody who would not - - who would not express himself and could get pushed around by other jurors.
THE COURT: What about the other one?
MR. TRUONG: Your Honor, that gentleman because - - similar reason, given his youth, we have to believe that he'd not be an assertive member of the jury if he has an opinion or given the fact that he's inexperienced in his youth, and we are concerned that he may not have the confidence to voice his views during deliberation.
THE COURT: Let me ask you a question: Did it occur to either one of you to ask either of those jurors questions going to that? I mean, we had him up here. If that was a concern, could you have asked some kind of question about that?
MS. ACEVEDO: It is our experience, Your Honor, jurors don't admit that they would be.
THE COURT: But you could see his reaction, sort of like cross-examination, people don't confess but you ask them questions that would ...