THEODORE R. SPENCER, et al., APPELLANTS,
UNITED STATES, APPELLEE
October 1, 2015.
Appeals from the Superior Court of the District of Columbia.
(CF1-12767-11, CF1-12768-11 & CF1-12769-11). (Hon. Thomas
J. Motley, Trial Judge).
D. Engle, with whom Sharon Burka, for appellant Theodore
Deahl, Public Defender Service, with whom Christine A. Monta,
James Klein and Samia Fam, Public Defender Service, were on
the brief, for appellant Terrell Wilson.
N. Moore for appellant Phillip Charles Swan.
A. Ewing, Assistant United States Attorney, with whom Ronald
Machen Jr., United States Attorney at the time the brief was
filed, and Elizabeth Trosman, Chrisellen R. Kolb, Vinet
Bryant, and Michelle Bradford, Assistant United States
Attorneys, were on the brief, for appellee.
WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and
PRYOR, Senior Judge.
Appellants Theodore Reginald " Reggie" Spencer,
Terrell Wilson, and Phillip Swan appeal their convictions
stemming from events that occurred over two days in June
2011, which culminated in the brutal killing of Mr. Glenn
Scarborough. Each appellant challenges his convictions on
multiple grounds; we address each in turn. Appellants argue
that in the event of affirmance by this court, merger is
necessary for some of their convictions, and the government
agrees. We affirm, in part, and remand for merger of certain
convictions in accordance with this opinion.
2011, Sharon Spencer was in Georgetown University Hospital
dying from cancer. Her son, Reggie Spencer, at least
partially blamed his mother's long-time companion, Glenn
Scarborough, for his mother's worsening condition.
Scarborough and Sharon Spencer had a complicated relationship
that included drug use, prostitution, and physical abuse.
Friday, June 17, 2011, appellant Spencer received a telephone
call from his grandmother notifying him that his mother's
condition was not good, and that he should come see her at
the hospital. Spencer, who lived in Orange County, Virginia,
was accompanied to Georgetown Hospital by his sister Jasmine
appellants Wilson and Swan, Devon Horner, and Heather Swan.
Spencer drove the group from Culpeper, Virginia to the
District in Swan's car. At the hospital, Spencer and his
sister Jasmine visited their mother in her hospital room.
After the visit, Spencer was " upset, distraught, and
crying." Spencer told the group that he wanted to go to
Mr. Scarborough's house and " beat up him up."
The group departed the hospital and, utilizing the car's
global positioning system, Spencer drove the group in
Swan's car to Scarborough's house. When they arrived,
Spencer, Wilson, and Horner exited while Swan, Heather, and
Jasmine remained in the car. Spencer knocked and Scarborough
answered the door naked. Appellant Wilson, who had a gun,
ordered Scarborough to get on the floor. Thereafter, Spencer
and Wilson tied Scarborough up and beat him, leaving him tied
up and naked on his basement floor. When the three returned
to the car, approximately ten to fifteen minutes after they
had left, they had a small black bag and were counting money
from it. The six all drove back to Virginia together.
in the morning on June 18, 2011, Terrance Dupree,
Scarborough's upstairs neighbor, heard Scarborough
shouting for help outside of Dupree's front door. Upon
opening it, Dupree found Scarborough naked with his hands
tied behind his back. Dupree brought Scarborough to the
kitchen where he used a knife to cut the rope and free
Scarborough's hands. Scarborough told Dupree that he had
been robbed but did not call the police.
in the day on June 18, 2011, Spencer, Wilson, and Swan were
together again, along with Heather and Jasmine, when Spencer
received another phone call from his grandmother summoning
him to the hospital. Again, the group rode to Georgetown
Hospital in Swan's car, with Spencer
driving. Spencer and Jasmine again visited with
their mother in her hospital room while the others waited.
This time, Sharon Spencer had worsened; she was unresponsive,
and after their visit appellant Spencer was angry and wanted
to return to Scarborough's house. Again, the group drove
in Swan's car to Scarborough's house. This time, all
but Heather got out of the car. Jasmine knocked and
Scarborough answered the door. At first, the group discussed
picking up some of Sharon Spencer's belongings but soon
the situation escalated and Scarborough called Jasmine a
vulgar term. At that time, Spencer told Jasmine to go back to
the car. Jasmine complied, and on her way out, she heard
Scarborough say, " ah shit, not this again" and saw
Swan and Wilson kicking and punching Scarborough as Spencer
ten minutes later, the three appellants came back to the car
where Jasmine and Heather were waiting. Spencer was wearing
gloves and holding a bloody knife. Wilson said, "
He's not going to hurt your mom no more." Spencer
drove the group back to Orange County, Virginia; on the way,
the knife and bloody gloves were thrown out of the window.
The next day, the group was together again when they saw a
news report about Scarborough's murder. Spencer and Swan
admitted to Heather that they had killed Scarborough. Spencer
told Jasmine that he had strangled and stabbed Scarborough
while the others " beat him up."
Sunday June 19, 2011, Scarborough was found face down in a
pool of his own blood inside his basement apartment in
Northeast Washington. His head and feet were wrapped with
duct tape, a cloth was
stuffed into his mouth, a belt was around his neck, and he
had three superficial stab wounds. Mr. Scarborough had
numerous abrasions and bruises, and he had ligature marks
around his neck. The duct tape on his head obstructed his
right nostril and the cloth in his mouth obstructed the
other. The medical examiner determined that Mr. Scarborough
died from asphyxiation due to ligature strangulation and
the killing, each of the appellants implicated himself in the
crime. Appellant Swan exchanged incriminating text messages
with a friend; that friend contacted the Metropolitan Police
Department and identified Spencer and Swan as persons who
were involved. The government obtained videotaped statements
from each appellant implicating himself in the death, and
both Spencer and Wilson implicated himself in the assault on
the night prior. All three appellants took responsibility for
duct taping Scarborough, and Spencer and Swan each said he
threw the knife and gloves out of the car window during the
trial, appellants Wilson and Swan did not present a case.
However, Spencer testified to his role in the killing, saying
that he put Scarborough in a chokehold for nearly two
minutes, wrapped a belt around his neck and pulled until it
broke, stabbed him three times in the neck, and wrapped the
duct tape around both Scarborough's head and legs.
Spencer testified that he was " in a rage" and had
never " been as angry in his life." He also
testified that neither Swan nor Wilson was involved in the
jury convicted the appellants as follows: for the events on
June 17th Spencer and Wilson were found guilty of burglary,
kidnapping, and simple assault. The jury also found Spencer
guilty of robbery on June 17th. For the events on June 18th,
the jury convicted Spencer, Wilson, and Swan of burglary and
kidnapping. In addition, all three appellants were convicted
of felony murder.
Appellants' Statements to Police
Spencer and Wilson challenge the admission of their un-
Mirandized statements. Spencer argues that his Fifth
Amendment rights were violated when the court admitted his
videotaped confession which was made during custodial
interrogation without the benefit of Miranda
warnings. Wilson argues that his Fifth Amendment rights were
violated in the same way as Spencer's, but ...