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Long v. United States

Court of Appeals of Columbia District

March 30, 2017


          Argued January 18, 2017

         On Appeal from the Superior Court of the District of Columbia Criminal Division CF3-21886-12 & CF3-21887-12

         Appeals from the Superior Court of the District of Columbia (CF3-21886-12 and CF3-21887-12) Hon. John McCabe, Trial Judge

          Nancy E. Allen for appellant Floyd K. Long. Thomas D. Engle, with whom Sharon L. Burka was on the brief, for appellant Alonzo J. Ferrell.

          Daniel J. Lenerz, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and Demian Ahn, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Beckwith and McLeese, Associate Judges, and Kravitz, Associate Judge, Superior Court of the District of Columbia. [*]


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

         ORDERED and ADJUDGED that for the foregoing reasons, the case is remanded to the Superior Court for the limited purposes of (1) vacating appellants' convictions for felony receiving stolen property and entering, in their place, convictions for misdemeanor receiving stolen property, with resentencing as appropriate; and (2) vacating Mr. Long's merged conviction for reckless driving, The judgments of the Superior Court are otherwise affirmed.

          Kravitz, Associate Judge

         A Superior Court jury found appellants Floyd K. Long and Alonzo J. Ferrell guilty of conspiracy, armed robbery, and other offenses arising from a series of street robberies committed by masked gunmen operating out of a stolen Dodge Intrepid late on Christmas Eve 2012. Appellants argue that the trial judge erred by failing to suppress a show-up identification of Mr. Long made by one of the robbery victims and by allowing the government to prove appellants' familial relationships with a third man identified as a potential match for DNA found inside the Intrepid. Appellants also challenge the sufficiency of the evidence supporting their convictions for unauthorized use of a motor vehicle and felony receiving stolen property.

         We conclude that the evidence of the value of the Intrepid was insufficient to sustain appellants' convictions for felony receiving stolen property, and we will remand for the entry of convictions on the lesser-included offense of misdemeanor receiving stolen property. We otherwise find no reversible error.

         I. Factual and Procedural Background

         Michael Richards drove home from a Christmas Eve party late at night on December 24, 2012. He parked his car in front of his house in the 200 block of Hamilton Street, N.W. at approximately 11:15 p.m. and gathered his belongings to go inside.

         Before he made it into his house, however, Mr. Richards realized he had left his iPad in his car, and he went back to retrieve it. As he reached into his car, he noticed a tan, four-door sedan pull up. Two men got out of the sedan. One had a ski mask covering his face and a .38 caliber revolver in his left hand. The man pointed the revolver at Mr. Richards and said, "[G]ive it up, you know what time it is." Mr. Richards raised his hands. The other man then searched Mr. Richards from behind, taking his wallet, keys, and iPhone, while the man with the revolver took the iPad. Mr. Richards asked the men to leave his keys and wallet, and they did, after ensuring there was no money in the wallet. The men kept the iPhone and iPad, however, and took them back to the sedan, which immediately drove off.

         Unable to call the police without a cell phone, Mr. Richards got in his car and drove around looking for a police officer. He found one a few blocks away and reported the robbery, describing the robbers' vehicle as a tan, four-door sedan, possibly an Intrepid. The officer broadcast a lookout for the car over the police radio.

         At approximately 11:30 p.m., Kurt Becker parked his car in the 100 block of Webster Street, N.E., where he planned to attend a Christmas Eve party at a friend's apartment. As soon as he turned off his ignition, Mr. Becker noticed three men run in front of his car. One was holding a pistol with a long black barrel; another had a shiny silver semi-automatic pistol with a short barrel. Mr. Becker looked away, hoping to avoid a confrontation.

         Within seconds, however, Mr. Becker heard a metallic tapping on his car window. He turned and saw the man with the long-barreled pistol pointing the weapon directly at him. Mr. Becker opened his car door, and the man, wearing a black ski hat, with dreadlocks down to his shoulders, told Mr. Becker to give him all of his money. Mr. Becker took out his wallet and gave the man $160.00. The second gunman then told Mr. Becker to give him his license, phone, and car keys. Mr. Becker tried to comply but had trouble getting his license out of his wallet, and the man settled for his LG smartphone. All three men then got into a Dodge Intrepid parked across the street and drove off. Mr. Becker went to a nearby police station and reported the robbery.

         Thomas Bartek, Jr. arrived home from work a few minutes after 11:30 p.m. He parked his car in front of his house in the 600 block of Jefferson Street, N.E. and walked around to the passenger side to get some items he had bought.

         Mr. Bartek soon noticed a man walking toward him from the driver's side of a vehicle that had pulled up. The man was wearing a dark puffy jacket, baggy pants, and a ski mask with long dreadlocks sticking out of it. As the man approached, he pointed a black pistol at Mr. Bartek's face and said, "[M]erry Christmas. Give me your fucking money." Mr. Bartek reached into his pocket and gave the man three one-dollar bills. A second man, wearing a mask and armed with a silver semi-automatic pistol, then got out of the other car. The man held his gun to the back of Mr. Bartek's head while the first man searched Mr. Bartek's wallet and went through his pockets, finding a blue Samsung smartphone but no more money. A third masked man then got out of the other car and took Mr. Bartek's keys. The men went through Mr. Bartek's car but took nothing, and they returned to their vehicle with Mr. Bartek's blue Samsung phone and three one-dollar bills.

         Mr. Bartek watched the robbers' car as it drove off and thought it was either a Dodge Intrepid or a Pontiac. He then went inside and called 911.

         A few minutes after midnight, Francois Mitchell was loading Christmas gifts into his car in front of his parents' home in the 1700 block of Varnum Street, N.W. Mr. Mitchell watched as a car turned onto Varnum Street and drove slowly toward him. The car stopped a few feet away, and a man wearing a mask from the nose down got out of the car, pointed a black semi-automatic pistol at Mr. Mitchell, and stated, "[Y]our cash or your wallet."

         Mr. Mitchell grabbed the gun and began to wrestle with the man. A second man then got out of the car and pointed another black semi-automatic pistol at Mr. Mitchell. The second man said, "[Y]our cash or your wallet" and reached into Mr. Mitchell's pocket and took his wallet. Two more men approached moments later, and Mr. Mitchell, realizing he was out-numbered, screamed for help.

         The four men sped off in their car with Mr. Mitchell's wallet, but not before Mr. Mitchell memorized the car's license plate number. Mr. Mitchell ran inside and reported the robbery and the license plate number to a 911 dispatcher. It was 12:15 a.m.

         The license plate number reported by Mr. Mitchell was assigned to a 2002 Dodge Intrepid owned by a woman named Brenda Holmes and reported stolen in the District of Columbia on December 23, 2012. The police entered the number into a license plate reader database, and at approximately 12:45 a.m., an announcement was broadcast over the police radio that the Intrepid, believed to be involved in a string of armed robberies, had just passed a license plate reader at the intersection of East Capitol Street and Texas Avenue, S.E.

         Officers Ryan Devlin and Jonathan Lauderdale were nearby in a marked police cruiser. The officers drove in the direction of the license plate reader and saw the Intrepid coming toward them on Central Avenue. They made a U-turn to get behind the Intrepid and then activated their lights and siren in an attempt to make a traffic stop. The Intrepid, however, sped away from the officers and led them on a brief chase, crossing into Prince Georges County, Maryland, and then back into the District, where the car spun out of control and came to a rest facing sideways in the middle of 56th Street, S.E.

         Four men got out of the Intrepid and fled up 56th Street. Officer Devlin ran after the driver, while Officer Lauderdale chased the front seat passenger. Officer Devlin quickly caught up to the driver, Mr. Long, in a stairwell two houses away and took him into custody at approximately 12:50 a.m. Mr. Long had shoulder-length dreadlocks and was wearing a puffy jacket. A search of his clothing yielded a blue Samsung smartphone, $160.00 in cash, and a Cricket cell phone. Officer Lauderdale detained the front seat passenger, Mr. Ferrell, a minute or two later after finding him lying on the wet ground behind a shed in a backyard, breathing heavily. Beneath Mr. Ferrell was a pair of dry gloves, and found on his person were a black ski mask, a T-Mobile cell phone, and a total of $112.01 in U.S. currency, including three one-dollar bills balled up together. In Mr. Ferrell's flight path, the police found a Sprint Kyocera cell phone registered to a person named Lakeisha Lesesne. The other two occupants of the Intrepid were never apprehended or identified.

         A report of the chase of the Intrepid and the arrests of Mr. Long and Mr. Ferrell was broadcast over the police radio. Detective Christopher Baxa heard the broadcast while in the 600 block of Jefferson Street, N.E. investigating the robbery of Mr. Bartek. He and Detective Eric Roche promptly drove Mr. Bartek in a police vehicle to the intersection of 56th Street and Central Avenue, S.E. for a show-up identification. There, Mr. Bartek remained in the back seat of the police vehicle as Officer Devlin brought Mr. Long to an area in the street thirty-five to fifty feet away. The area was illuminated by the lights of several police cars, and Mr. Long, wearing his ...

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