Argued December 2, 2014
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeals from the Superior Court of the District of Columbia. (CF1-11395-10, CF3-19509-10, CF1-11478-10, CF2-22044-10). (Hon. Gerald Fisher, Trial Judge).
Claire H. Pavlovic, Public Defender Service, with whom James Klein, Jaclyn S. Frankfurt, and Christine A. Monta, Public Defender Service, were on the brief, for appellant Gregory Trotter.
Steven R. Kiersh for appellant Ernest Pee.
Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Deborah L. Sines, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and REID, Senior Judge.
Glickman, Associate Judge
In armed robberies committed at check-cashing stores in Northeast Washington, D.C., on May 28 and June 17, 2010, one of the victims was killed and two others were pistol-whipped. Appellants Trotter and Pee, found by a jury to have perpetrated the robberies, appeal their convictions for first-degree felony murder, armed robbery, conspiracy, second-degree burglary while armed, and multiple other offenses. We affirm.
On May 28, 2010, Sadhak Chakroborty's check-cashing store on Minnesota Avenue Northeast was robbed by two men armed with handguns who were dressed like construction workers and wearing dust masks to cover their faces. Much of the robbery was captured on videotape by a surveillance camera. The robbers' faces are not visible in the video, but their overall appearances matched those of appellants. The tall, skinny robber (later identified as Trotter), who can be seen in the video holding a revolver in his right hand, pistol-whipped Chakroborty in the head, threatened to kill him, and forced him to open the store's safes and cash register. The
shorter and stockier robber (later identified as Pee) held a semiautomatic weapon in his left hand and acted as a lookout. The two robbers left with approximately $6,500 in cash, some merchandise, and a number of blank checks from Chakroborty's personal and business accounts.
The stolen checks were recovered when a heroin addict named Anthony Evans tried to cash them. Evans told the police and testified at trial that appellant Trotter gave him the checks to cash and that they agreed to split the proceeds.
Three weeks later, on June 17, 2010, the check-cashing store on Benning Road Northeast operated by Prithvi Singh and his son Prabhjot Rajan Singh was robbed of some $40,000 in cash. This robbery also was caught on videotape. The robbers were two men wearing masks and baseball caps. The men were similar in overall appearance to the men who robbed Chakroborty's store, and to Trotter and Pee. The taller of the two men, whose hair was in dreadlocks (like Trotter's), held a revolver in his right hand. His shorter and stockier companion held a semiautomatic handgun in his left hand. The two men attacked Prithvi Singh, repeatedly hitting him with a gun in the mouth and head and knocking out a tooth. Prabhjot Singh came out of a back room and pushed the taller gunman out the door into the street, where a struggle ensued. The videotape shows the gunman's baseball cap falling off his head during the struggle and a small object falling from his pocket. The two men grappled with each other on the ground until the robber managed to shoot Prabhjot Singh in the head. The wound was fatal. Witnesses saw the two gunmen flee in a gold Kia automobile with Maryland tags; one of the witnesses, a Metro bus driver, was able to record part of the license plate number. The witnesses saw the shorter robber (allegedly Pee) get in the Kia on the driver's side as his companion (allegedly Trotter) entered on the passenger side.
At trial, Andre Tate, a friend of both Trotter and Pee, testified that they told him in June 2010 how they had robbed a check-cashing store on Minnesota Avenue the previous month wearing construction outfits. Both men said the robbery had been violent. Tate further testified that on June 16, 2010, he drove Trotter and another man, Glenn Savoy, to " case" the check-cashing store on Benning Road. Savoy said it would be " suicide" to rob the store because there were cameras everywhere and only one exit, which according to Tate made Trotter " disappointed and mad." The next day, Trotter showed up at Tate's house and told him he had gone ahead and robbed the Benning Road store, that it had been " turmoil . . . from the beginning to the end," and that " things kind of went wrong." Trotter said one of the men in the store " ran to him as if he didn't have a gun in his hand" and landed on top of him. Trotter admitted shooting the man in the head and said he might have killed him. He also told Tate that he had lost his hat and his cellphone during the robbery. Trotter gave Tate a .38 caliber pistol and asked Tate to hold it for him.
That evening, Tate called the police and reported to Detective Mitchell Credle that Trotter and Pee were involved in the Benning Road robbery. A few days later, Tate told Credle that he had Trotter's gun and turned the weapon over to the detective. A firearms examiner testified that a bullet found on the sidewalk outside the Benning Road store had been fired from this gun. DNA testing revealed that Prabhjot Singh was a contributor to the DNA found on the gun.
A baseball cap and cellphone were recovered outside the Benning Road store
after the robbery. Subsequent testing revealed that Trotter was a major contributor of the DNA found on the cap, with a random match probability on the order of 1 in 220 quintillion. The cellphone bore Trotter's phone number, and phone records showed considerable contact with Pee, including a number of calls in the hours preceding the Minnesota Avenue and Benning Road robberies.
Tate also testified that he met with both Trotter and Pee several days after the Benning Road robbery. Pee told Tate that he knew the police were looking for him; that his girlfriend had been locked up because her car had been used in the robbery; and that he had thrown out his old cellphone and gotten a new prepaid phone to use instead.
Other evidence introduced at trial established that Hattie Bittle, with whom Pee was living at the time of the Benning Road robbery, owned a gold Kia with Maryland tags that matched the partial license plate number recorded by the bus driver who witnessed the robbery. Bittle testified that Pee had the keys to the car on the day of the robbery, and that she was not using the car that day. Her daughter, Melody Bittle, testified that Pee was driving the car that morning and had dropped her off a short distance from the Benning Road store.
On June 21, 2010, four days after the Benning Road robbery, the police stopped Hattie Bittle as she was driving the Kia and brought her to a police station for questioning. Bittle told the police that she assumed Pee had been driving her car on the day of the robbery. She called Pee and asked him to come to the station to clear things up. He agreed to do so, but he never appeared. Melody Bittle, who was with Pee at the time, testified that when he heard that her mother was being questioned about " her car being in some type of incident" the previous week, he acted shocked, packed his bags, and left the apartment without saying anything. He never returned.
Appellants present several claims of error. Pee argues that the trial court erred in refusing to suppress a statement obtained from him by police in violation of Edwards v. Arizona, in denying his motion to sever his trial from Trotter's, and in failing to rule sua sponte that the Minnesota Avenue and Benning Road offenses were improperly joined in the indictment. Pee and Trotter both complain of prosecutorial improprieties in closing argument. Finally, Trotter argues that the court erred in allowing the government to introduce unduly prejudicial evidence of the eye injury Prabhjot Singh sustained when he was shot in the head.
We conclude that appellants are not entitled to relief on these claims.
A. Pee's Motion to Suppress
On June 24, 2010, Pee was arrested for the Benning Road robbery and murder. He initially waived his Miranda rights and was questioned by Detectives Credle and Richmond. The questioning stopped when Pee asserted his Fifth Amendment right to counsel. Before he did so, Pee acknowledged having had the keys to Hattie Bittle's
gold Kia on the day of the robbery. When pressed to explain how he could have been seen in the Kia near Benning Road that morning, Pee said Trotter called him and asked to be picked ...