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Clark v. United States

Court of Appeals of Columbia District

October 6, 2016

Rayshawn Clark, Dwayne Hilton, and Pernell Lee, Appellants,
United States, Appellee.

          Argued May 5, 2016

         Appeals from the Superior Court of the District of Columbia (CF3-10591-12, CF3-14421-13 & CF3-10590-12) Hon. Anita Josey-Herring, Trial Judge

          Marie L. Park for appellant Clark at the time of oral argument.

          Cecily E. Baskir for appellant Hilton.

          Silvana Naguib, Public Defender Service, with whom James Klein and Samia Fam were on the brief, for appellant Lee.

          Timothy R. Cahill, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Natalia Medina, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Blackburne-Rigsby, Easterly and McLeese, Associate Judges.


         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the convictions on appeal are affirmed. The matter is remanded solely for merger of appellants Clark's and Hilton's counts of possession of a firearm during a crime of violence ("PFCV") arising from the first armed robbery and armed carjacking of Cornell Scott.


          Blackburne-Rigsby, Associate Judge

         In these consolidated cases, appellants Rayshawn Clark, Dwayne Hilton, and Pernell Lee appeal their convictions related to an armed carjacking, multiple armed robberies, and subsequent flight from police in the early hours of June 17, 2012.[1] This case presents two significant issues: (A) whether the trial judge should have excluded complainant Cornell Scott's in-court identifications of Clark and Lee, or imposed some lesser sanction, because the complainant called a detective to discuss his "refreshed recollection" of his assailants during the trial, and (B) whether the evidence was sufficient to support Hilton's and Lee's convictions. Appellants raise five other issues that we address more summarily.[2] We affirm and remand solely for merger.

         I. Background

         In short, the evidence at trial showed that appellants Clark, Hilton, and Lee committed multiple armed robberies in Washington, D.C. They first robbed complainant Cornell Scott, taking items from his person and his truck from his driveway. They next robbed complainant Tyaron Scott, who walked by during the robbery of Cornell.[3] The robbers drove away, but they had left behind a cell phone at the scene, and they returned and robbed Cornell a second time in an unsuccessful attempt to recover the phone. During the second robbery, police arrived and appellants fled in an SUV. The exact role each appellant played in the series of crimes is not crystal clear, but strong evidence tied each of them to the crime spree - Clark and Lee were apprehended while fleeing, and Hilton's cell phone was recovered from the scene of the robberies.

         Specifically, in the early morning of June 17, 2012, complainant Cornell Scott arrived at his home on the 5600 block of 14th Street, Northwest, Washington, D.C. When Cornell was about to enter his house, a car pulled up. The passenger pretended to be lost and exited the vehicle to ask for directions, but, as Cornell approached the passenger, he smacked Cornell in the nose with a gun.

         Two men dragged Cornell toward the street, and each held a gun to the back of Cornell's head as they searched his pockets. The robbers found keys to Cornell's truck, and a third man took the keys and entered the truck. The truck was equipped with an alarm, but Cornell explained how to disable it, and the third man drove the truck away. The robbers also took Cornell's personal effects but, in an apparent oversight, not his cell phone.

         Just after the third robber drove Cornell's truck away, complainant Tyaron Scott walked by on the sidewalk. While one robber continued to hold Cornell at gunpoint, the other robber (later identified as Hilton) robbed Tyaron of over $600 in cash. Although the robber instructed Tyaron to run away, Tyaron did not go very far and was able to watch the men get into a black SUV and drive away. The initial robberies happened "real quick, " lasting no more than five minutes overall.

         Cornell walked back toward his house and found a cell phone on the ground, and he called 911 with his own cell phone to report that he had been "carjacked." An SUV soon arrived, and one man (later identified as appellant Clark) exited, pointed a gun at Cornell, and asked either, "Where's my phone?" or "Where's the phone?" The robber then took Cornell's cell phone, which was still in his hand after he had called 911, but did not recover the cell phone that had been left behind. Another man in the SUV yelled that police were approaching, Clark ran back to the vehicle, and the SUV sped away.

         After a high-speed chase through residential neighborhoods, the SUV hit the curb and flipped onto its roof. Two occupants of the vehicle crawled out and started to run down 4th Street, and a police officer pursued them on foot. The two fleeing men ran in different directions, and the officer pursued and detained only the driver, identified as Lee.

         Clark was injured in the wreck and remained in the flipped SUV. Police officers searched Clark's pockets and recovered Cornell's personal effects. Investigators recovered one handgun from the wrecked SUV and another handgun lying nearby.

         Cornell gave the police the cell phone that one of the robbers had left behind. Around 5:30 a.m. on the morning of the robberies, that cell phone rang while on MPD Detective Wheeler's desk at the police station. Detective Wheeler called the number from the incoming call and reached Francine Lowe, who stated that she had been calling her brother Hilton and that the cell phone belonged to him.

         The jury convicted both Clark and Hilton of one count of conspiracy, three counts of armed robbery, one count of armed carjacking, and four counts of PFCV (plus four related firearm offenses for Clark and three for Hilton). Notably, Lee faced the same charges as Clark and Hilton, but the jury convicted Lee of only one count of robbery, fleeing a law enforcement officer, reckless driving, and PFCV (plus two related firearm offenses). They received prison sentences of thirty-one years (Clark), twenty-five years (Hilton), and eight years and eight months (Lee). These consolidated appeals followed.

         II. Discussion

         We address appellants' claims in three groups: (A) Cornell's "refreshed recollection" leading to his identification of Clark and Lee, (B) the sufficiency of the evidence supporting Hilton and Lee's convictions, and (C) appellants' other claims. We provide additional procedural history as relevant.

         A. In-Court ...

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