Gray v. United States, s. 13-CF-854
| Citation | 147 A.3d 791 |
| Decision Date | 20 October 2016 |
| Docket Number | Nos. 13-CF-854,13-CM-109,s. 13-CF-854 |
| Parties | Alazajuan M. Gray and Clifton Smith, Appellants, v. United States, Appellee. |
| Court | Court of Appeals of Columbia District |
Matthew C. Leefer for appellant Alazajuan Gray.
Marie L. Park for appellant Clifton Smith.
Peter S. Smith, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Philip Selden, Assistant United States Attorneys, were on the brief, for appellee.
Before: Fisher and Beckwith, Associate Judges; and Newman, Senior Judge.
Opinion by Associate Judge BECKWITH
, concurring in part and dissenting in part, at page 810–11.
, Associate Judge:
Appellants Alazajuan Gray and Clifton Smith appeal their convictions for robbing Metro passengers of cellphones on two separate occasions. They primarily contend that the charges stemming from each event should have been tried separately. Because the court should have severed the counts, we reverse appellants' convictions for unarmed robbery on September 28, 2012, and Smith's conviction for receiving stolen property on that same date. We are not persuaded by appellants' remaining arguments, but direct that the judgments be corrected in certain respects.
Viewed in a light favorable to the government, the evidence showed that, on Friday, September 21, 2012, around 11:00 p.m., Gerald McIntosh entered the Silver Spring Metro station with his girlfriend and two female friends, Radia Tabur and Michele St. Julien. As the group waited on the platform, three African American men, including appellants Alazajuan Gray and Clifton Smith, approached the women and tried to talk with them. Unsuccessful, Gray made some crass and insulting remarks to McIntosh before lifting his hands above his head to reveal the butt of a gun in the waistband of his pants.
When the train arrived, McIntosh and his friends separated themselves from appellants and stepped into a different car. However, when the train reached the Takoma Park station, the three men entered the car where the group was sitting. Gray took a seat behind McIntosh. Smith stood in front of McIntosh, and said, “[O]h, y'all thought y'all was gonna get away.” On Smith's command, Gray stood up, took the gun out of his pants, keeping it at waist level, and took an iPhone and $20 from McIntosh's pockets. The train stopped and, as the men left, Smith told McIntosh not to “snitch” or he would “beat [his] ass.” “Scared” and “aggravated,” McIntosh heeded the threat and did not report the robbery to the police.
A week later, on September 28, McIntosh encountered appellants once again. Entering the Fort Totten Metro station around 8:00 p.m., McIntosh noticed Gray and Smith walking towards him on the platform. Gray asked McIntosh if they could talk. Scared, and believing he saw Gray flash a gun, McIntosh ran up the escalator and found Station Manager Vinson Bellamy. Appellants chased McIntosh to the station kiosk. While Bellamy called the police, Smith opened the kiosk door and asked McIntosh if he was “snitching.” When McIntosh said “yeah,” Smith came into the kiosk and punched McIntosh in the face. Bellamy broke up the fight and appellants fled.
Not long after, Metro Transit Police Officers Leron Elliston, Thomas Leahy, and Syreeta Jackson responded to the scene. After they conducted a show-up procedure, during which McIntosh described and then identified appellants, Officer Elliston arrested Gray and Smith. At trial, the officers described Gray as an African American male with short hair, who, on September 28, was wearing a blue and yellow hat and a “dark blue” or “dark- colored” shirt. The officers described Smith as an African American male with dreadlocks wearing a white T-shirt.
At trial, eyewitnesses McIntosh, St. Julien, and Tabur identified appellants as the men who robbed McIntosh on September 21, and Bellamy identified appellants as the men who chased and attacked McIntosh on September 28. The government also introduced cellular data, which showed a phone registered to Gray had been in the area of the Silver Spring Metro station on September 21 around the time of the robbery, as well as a black and white video, which showed appellants confronting and chasing McIntosh in the Fort Totten Metro station on September 28.
Appellants challenged the eyewitness identifications through the expert testimony of Dr. Steven Penrod, who testified about the accuracy of identifications in hypothetical situations mirroring the facts of this case. Additionally, both appellants testified, claiming they were not present for the September 21 robbery. Gray testified that he was either at home or at work, because he had recently received a court-imposed curfew between “10 p.m. and 6 a.m.” when he was released in another Superior Court case. Gray also testified that the eyewitnesses must have confused him with “other individuals” and that his brothers' use of his cellphone might explain the cellular evidence.
Similarly, Smith stated he was not at the Silver Spring Metro station on September 21 but rather at his mother's house or his aunt's house. Based on the time his Metro card was swiped on an A2 bus (the bus he normally takes to his aunt's house), he contended that he could not have made it to the Silver Spring Metro station by the time the robbery occurred.
Smith stated that he chased and punched McIntosh on September 28 because he thought McIntosh was “trying to snitch on me for something I didn't do.” Gray said he participated in the chase because he thought the three men were “about to fight.”
Around 7:10 p.m., a little less than an hour before Gray and Smith confronted McIntosh at Fort Totten, Katherine Takai boarded a yellow line train at the Pentagon City Metro station. In her train car, she noticed three African American men sitting together. One of them moved closer to her, sitting somewhere behind her. When the Metro doors opened at Gallery Place, that man ripped the phone out of her hands and sprinted out of the car. Takai tried to chase him, but the remaining two men stood in her way, purposefully blocking her attempt to exit the car.
Later that night, Officer Elliston and a Metropolitan Police Department canine unit found Takai's stolen iPhone in a park outside the Fort Totten Metro station—where Elliston had cuffed and detained Smith approximately forty-five to fifty minutes earlier in response to Station Manager Bellamy's call regarding the assault on McIntosh.
Takai was unable to identify the robbers either in a photo array or at trial. However, she testified that the man who took her phone had short hair and was wearing a light blue shirt. She also said that one of the men who blocked her exit had dreadlocks and was wearing a white T-shirt.
In their testimony at trial, Gray and Smith claimed they did not rob Takai or ride the yellow line that night. Both admitted that they passed through Gallery Place, but Gray claimed he was coming back from his baby's mother's house on the red line and Smith claimed he was traveling from his house on the green line. Both testified that they met on the train and had plans to meet more people in Fort Totten before heading to a party on New York Avenue together. Smith also asserted that he had Takai's phone, not because he stole it, but because, while riding the red line to Fort Totten, he bought it from another young, African American man who offered to sell the iPhone for $50.00.
Among other offenses, the jury found both appellants guilty of one count of armed robbery, based on the September 21, 2012, robbery of McIntosh, and one count of unarmed robbery, based on the September 28, 2012, robbery of Takai.
Appellant Smith argues that the September 21 armed robbery charges and the September 28 unarmed robbery charges were improperly joined under Rule 8 (b).1 Both appellants argue that, even if proper, the joinder was prejudicial, and the court abused its discretion in denying their motions to sever. Finally, Gray argues that the contempt charge should have been tried separately.
Two or more defendants may be charged in the same indictment “if they are alleged to have participated ... in the same series of acts or transactions constituting an offense or offenses.” Super. Ct. Crim. R. 8 (b)
. The government argues that the robberies were a joinable “series of acts” because “the offenses were so closely connected ‘that there [was] necessarily a substantial overlap in proof of the various crimes and it would [have been] difficult to separate proof of one from the other.’ ” Brief for Appellee at 20 (quoting Settles v. United States , 522 A.2d 348, 352 (D.C. 1987) ).2
There undoubtedly was some overlap in proof (centering on the arrest of appellants on September 28), but the robberies at issue occurred on different dates, were largely self-contained events, had different victims, and were proven by different witnesses. There was no common modus operandi . To tell the story of the unarmed, September 28 robbery, the government would not need to show that McIntosh was robbed on the 21st or confronted again by his robbers on the 28th. It would suffice to show that appellants were together less than an hour after the robbery of Takai, they matched the victim's descriptions, and one of them possessed the stolen iPhone.
Similarly, although McIntosh's second encounter with appellants was an integral part of the proof that they robbed him on September 21, there was no need, for those purposes, to reveal that Smith possessed the cellphone recently stolen from Takai. We thus have serious doubts that the robberies in this case were properly joined. Nevertheless, we need not decide this question because the trial court should have severed the robbery offenses under Rule 14.
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