Lamont L. Buskey and Keith A. Simms, Appellants,
United States, Appellee.
March 2, 2016
from the Superior Court of the District of Columbia Criminal
Division (CF3-22133-13 and CF3-16677-13) (Hon. John McCabe,
Trial Judge) (
Deborah A. Persico for appellant Lamont L. Buskey.
Margaret M. Cassidy for appellant Keith A. Simms.
Candice C. Wong, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth
Trosman and Michelle Parikh, Assistant United States
Attorneys, were on the brief, for appellee.
BEFORE: Glickman and Easterly, Associate Judges; and Reid,
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
and ADJUDGED that the judgment of the trial court is
SMITH REID, SENIOR JUDGE.
appeals arise from two robberies that took place in the
Northwest quadrant of the District of Columbia in September
2013. Appellants Lamont L. Buskey and Keith A. Simms were
indicted on multiple
felony charges relating to the robberies. Following a jury
trial, they were found guilty of all charges. On appeal, Mr.
Buskey and Mr. Simms contend that the trial court (1) made
several instructional errors relating to the CDW offense,
co-conspirator liability, and aiding and abetting liability
for "while armed" offenses; and (2) erred in
responding to jury questions posed during deliberations, and
by sending written responses instead of reconvening the jury
and reading the responses aloud. For the reasons stated
below, we affirm the judgments of the trial court.
record reveals that the first robbery took place on September
7, 2013. Complainants Roxana and Jennifer Carranza testified
as follows. Mr. Buskey and Mr. Simms followed teenage sisters
Roxana and Jennifer Carranza into their apartment building in
the 3800 block of 14th Street Northwest. The men entered the
elevator with the sisters, and indicated that they were going
to the seventh floor. When the elevator reached the third
floor, where the sisters lived, the men "block[ed] the
door" and trapped them inside the elevator. The sisters
tried to get out of the elevator, but both men "pushed
[them] against the wall in the corner of the elevator."
The sisters began to scream. Mr. Simms, the shorter man,
stepped out of the elevator to ensure that nobody was there
and then returned to the interior of the elevator. The
elevator began moving to the seventh floor. Mr. Buskey, the
taller of the two men, pulled out pepper spray, thrust it
near Roxana's face, and said, "Give me your chains
before I stab you." Jennifer noticed that the taller man
had his hand in his pocket when he said, "Give me your
chains or I'll stab you. I'll stab the sh*t out of
you." Mr. Buskey and Mr. Simms snatched the sisters'
gold necklaces, demanded their rings, and grabbed
Roxana's bracelet. The elevator moved to the basement
floor. A lady was standing in the basement; the shorter man
spoke to her and she directed the men to the exit. Jennifer
gave a similar account of the robbery during her testimony.
government introduced corroborating surveillance video
evidence showing Mr. Buskey and Mr. Simms approaching the
building and following the Carranza sisters inside. The video
depicted Mr. Simms stepping off the elevator on the basement
level, Mr. Buskey running down the hallway, and both men
leaving the building. Roxana made an in-court identification
of Mr. Buskey. During re-cross examination, she was presented
with a photo array and she identified one of the defendants
as one of the perpetrators.
second robbery occurred on September 16, 2013. According to
Mr. Sanchez de Paz, Mr. Buskey and Mr. Simms followed him
into his house, located in the 3600 block of Warder Street
Northwest (less than three quarters of a mile away from the
Carranza sisters' building). When Mr. Sanchez de Paz
tried to close the door, Mr. Buskey, with Mr. Simms's
help, grabbed Mr. Sanchez de Paz's hands, forced them
behind his back, pushed him into the house, and threw him to
the ground as Mr. Buskey demanded money. Mr. Buskey held a
knife to Mr. Sanchez de Paz's neck while Mr. Simms went
through his pockets and took his cash, two cellphones, and
keys; they kicked him in the back and asked for the location
of his room. Hoping to get help, Mr. Sanchez de Paz directed
them to the basement room where his friends, Minor Camo and
Fausto Lopez, lived. Mr. Buskey used the keys he had taken
and opened the door to the basement unit while Mr. Simms held
a knife to Mr. Sanchez de Paz's neck and restrained his
arms behind his back.
Camo testified that Mr. Buskey entered the room where Mr.
Camo and Mr. Lopez lay sleeping. Mr. Buskey signaled Mr. Camo
to come over; Mr. Camo, assuming Mr. Buskey was a repairman,
complied. As Mr. Camo noticed Mr. Simms on top of Mr. Sanchez
de Paz, Mr. Buskey snatched Mr. Camo's necklace off his
neck with one hand, took out a knife with the other hand, and
pointed the knife at Mr. Camo. Mr. Camo grabbed a bottle from
the trash and prepared to "throw it at [Mr.
Buskey]." Mr. Buskey "took off running." Mr.
Lopez testified that he was awakened by someone trying to
force open the door to his room. He saw a man enter the room
with a knife, and noticed that Mr. Camo had grabbed a bottle.
The intruder left the room.
Umna, who worked at Famous Pawnbrokers in Silver Spring,
Maryland, a store that pawns and buys used merchandise,
identified surveillance video taken at the store on September
7, 2013, and September 16, 2013, the dates of the robberies.
The videos depicted Mr. Simms and Mr. Buskey. Mr. Umna also
identified a document, routinely kept at the store, that
listed all transactions by date and by name of the customer.
The document listed the following items next to Mr.
Simms's name - "necklace, bracelet, rings."
After watching the surveillance videos of the store for
September 7 and 16, 2013, Paulette Hebron, Mr. Buskey's
mother, identified him as one of the persons in the videos.
all of the evidence had been introduced,  the trial court
discussed the proposed jury instructions with all counsel. On
the morning of May 22, 2014, the trial court made a brief
reference to the aiding and abetting liability theory as he
discussed the co-conspirator liability theory. The prosecutor
asked that the court give the instruction on co-conspirator
liability, Criminal Jury Instruction No. 7.103 (A),
explaining in response to a question from the trial judge,
that if the jury found there was a conspiracy it could
"find liability under the co-conspirator liability
theory, " but if the jury "fail[ed] to find a
conspiracy, " it could "consider the aiding and
abetting theory [of liability]." The judge asked if
defense counsel objected to adding 7.103 (A), and noted that
he "assume[d] [he] would just add it at the bottom of
the conspiracy instruction, . . . [o]r at the end of the rest
of the instructions[.]" When counsel for Mr. Simms
questioned the need for 7.103 (A), at the judge's
request, the prosecutor repeated her previously stated
rationale for requesting the co-conspirator liability
instruction. The judge asked all counsel to focus on that
issue, and inquired if there was anything defense counsel
"needed to change" in the proposed instructions;
the judge gave counsel additional time to respond.
the lunch break, the trial court revisited the proposed
instructions. Counsel for Mr. Buskey stated that he had
"no additions, deletions, or corrections, " and
counsel for Mr. Simms declared that he was "fine"
with the proposed instructions. The prosecutor asked where
the judge had placed the co-conspirator liability
instruction, and whether it was "separated from the
conspiracy [instruction]." The judge responded,
"It's at the end of the overt acts." Neither
defense counsel objected to the location or the substance of
the co-conspirator liability instruction.
its instructions to the jury, the trial court identified the
elements of each of the charged offenses: conspiracy to
commit burglary, robbery, and kidnapping; second degree
burglary (September 7th incident - the Carranza sisters);
first degree burglary while armed (September 16th incident -
Sanchez de Paz and Camo); kidnapping (of the Carranza
sisters); kidnapping while armed (of Mr. Sanchez de Paz);
armed robbery (of Mr. Sanchez de Paz and Mr. Camo); robbery
(of the Carranza sisters); and CDW (the September 16th
incident). The trial court also instructed the jury on
co-conspirator liability, and aiding and abetting
liability. The court gave the co-conspirator
liability instruction after most of the substantive
conspiracy instruction, including the alleged overt acts.
However, when the trial court finished with the instruction
about overt acts, it turned to the subject of proof regarding
a conspiracy, and added a one-sentence description of a
conspiracy before transitioning to the co-conspirator
liability charge. After giving the co-conspirator liability
charge, the trial court summarized the proof necessary to
establish the crime of conspiracy. Then the court moved on to
lay out the elements of second degree burglary.
aiding and abetting liability instruction was not given until
after the court had discussed all of the substantive crimes.
The court referenced burglary, robbery, and kidnapping during
its aiding and abetting liability instruction, but it made no
mention of the CDW charge; nor did the court mention the
"while armed" element for burglary, robbery, or
kidnapping. Counsel for Mr. Buskey and Mr. Simms did not
voice an objection at the end of the trial court's
instructions to the jury.
day after receiving the court's instructions, the jury
sent a note to the judge at 2:16 p.m., inquiring first about
the scope of the intended use of an object as a dangerous
weapon - "In regards to the third element of
'carrying a dangerous weapon, ' please clarify the
scope [of] intended use?" The jury further explained its
inquiry about intended use. In its response to this inquiry,
the re-instruction clarified the distinction between carrying
an object "as a tool or for other useful purposes"
and carrying an object with intent to use it "as a
second part of the first question asked, "Can
'aiding & abetting' apply to the charge
'carrying a dangerous weapon[?]'" The prosecutor
proposed that the answer to the second part of the first note
should be, "Yes, " and asserted that
aiding-and-abetting liability could apply to CDW but only
specifically to the "carrying of the weapon, " not
the crime being committed while the principal is carrying the
dangerous weapon. Counsel for Mr. Simms objected to any
additional language. The trial court acknowledged the
objection of defense counsel. However, the court stated that
"a portion of the appropriate instruction simply
wasn't given initially." The court ultimately
decided on the following response: "[Y]es, aiding and
abetting can apply to the charge of Carrying a Dangerous
Weapon - the following can be added to the definition of
Aiding and Abetting set forth on page 25 of the Jury
With respect to the charge of carrying a dangerous weapon,
regardless of whether a defendant is an aider and abettor or
a principal offender, the government must prove beyond a
reasonable doubt that the defendant acted with the intent
that the weapon be used unlawfully.
(emphasis added). Neither counsel raised an objection to the
jury sent a second note at 3:00 p.m., stating and asking:
Armed robbery - aiding & abe[tt]ing (in regards to
element 4) 'defendant personally acted with the
intent to take property of another through force' 1. Does
this include enabling another defendant to do the taking? Or
does defendant himself have to do the taking (i.e. snatching
2. Does instruction on aiding & abe[tt]ing for robbery
also apply to armed robbery?
(emphasis in original). The prosecutor proposed that the
court answer the first question, "Yes." Mr. Buskey
and Mr. Simms proposed that the court simply "direct
[the jury] to re-read the aiding and abetting instruction;
the trial court agreed with appellants. As to the second
question, the trial court decided to respond only to the
question posed - whether the instruction on aiding and
abetting for robbery also applied to armed robbery. However,
the court observed that the language it proposed was
"the specific addition for armed offenses." The
court inserted the standard language from Criminal Jury
Instruction No. 3.200 in its proposed response to the second
question of the second jury note. Counsel for Mr. Buskey and
Mr. Simms answered, "No, Your Honor, " to the