Submitted January 6, 2015
Appeal from the Superior Court of the District of Columbia. (CF3-8597-12). (Hon. Stuart Nash, Trial Judge).
James Klein, Alice Wang and Tejal Kothari, Public Defender Service, were on the brief for appellant.
Ronald C. Machen Jr., United States Attorney at the time, and Elizabeth Trosman, John P. Mannarino, Tejpal S. Chawla and David P. Saybolt, Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and KING, Senior Judge.
Thompson, Associate Judge
A jury convicted appellant Kalete Johnson of conspiracy to rob, see D.C. Code § 22-1805a (2012 Repl.), acquitting him of several other charges. Appellant contends that the trial court abused its discretion (1) in replacing a juror with an alternate, and (2) in admitting lay witness testimony about the witness's understanding of certain words he heard appellant speak. We disagree and therefore affirm.
At appellant's trial, the government presented evidence that on December 29, 2012, appellant, accompanied by two friends, Aquil Carrington and Leonard Taylor, conspired to rob Edin Carrera of his truck. Carrera, who was sitting in the truck with the engine running while he waited for the construction site where he worked to open for the day, testified that he noticed, through his rearview mirror, three young men approaching his truck, dressed in black jackets and black ski masks. As the three men got closer to the truck, the tallest one (appellant, according to the government's theory) walked towards the passenger side, one walked towards the driver's side, and one stayed behind the truck. The tallest man then approached Carrera's window, hit the window, and said, " son of a bitch, give me the truck." Carrera testified that he was scared, so quickly drove away and, after turning a corner, stopped and called the police. Upon seeing some of his coworkers head towards the construction site, and " fe[eling] more secure," Carrera drove back to the worksite. As Carrera was returning to the worksite, he saw the police arrive and the three men run away as the police approached them. Officers apprehended the two shorter men -- Carrington and Taylor -- and showed them to
Carrera, who identified them as two of the men who attempted to take his truck. The officers were unable to catch the tallest man, and so, began an investigation to locate him. A detective who was present at the show-up testified that Carrington and Taylor provided him with appellant's nickname, which ultimately led to the police finding appellant and arresting him.
Taylor testified at trial that when appellant, Carrington, and he were walking toward Carrera's truck, Carrington said that he " wanted to get the truck[,]" and appellant responded by saying " like, All right, like, go ahead, do what you got to do." The prosecutor asked Taylor whether appellant " was . . . participating in this[.]" Taylor responded, " Not that I could see." The prosecutor then asked Taylor what he had understood appellant to mean when he said, " All right." Taylor responded, " Like, go [a]head." The prosecutor said, " You're testifying under oath, sir, that he didn't agree?" Taylor responded, " Right. Yeah, like, go ahead, come on." The prosecutor observed that there was " a difference" between those interpretations and asked Taylor whether he had understood appellant to say " go ahead you do it" or " go ahead we'll do it." Taylor's response was " Like, not understanding but, like, Come on." When the prosecutor asked, " So [appellant] was going to do it with [Carrington]?" Taylor responded, " I guess" (an answer that the court struck, sustaining a defense objection). The prosecutor then impeached Taylor with a portion of his grand jury testimony, which the court agreed was " different than what he's testified here in court." In his grand jury testimony, Taylor testified that when Carrington said, " [w]e're going to get this car," appellant responded, " all right" or " [a]ll right, come on[,]" meaning (Taylor agreed with the prosecutor) that appellant would " do it with [Carrington,]" i.e., would " help [Carrington] take the truck." The grand jury testimony was read to the petit jury over defense counsel's objection that the government should not be permitted to " elicit what [Taylor] believed words to mean." The trial judge overruled the objection, reasoning that " all right, come on" " is susceptible to different interpretations" and that " the inflexion of the ...