AKINS v. U.S., 91-CF-860

• Citation: 679 A.2d 1017
• Decision Date: 20 June 1996
• Docket Number: No. 91-CF-1083,No. 91-CF-1034,No. 91-CF-860,No. 91-CF-1026,91-CF-860,91-CF-1026,91-CF-1034,91-CF-1083
• Parties: Michael AKINS, Robert L. Taper, Joel Carrero, and William Barnes, Jr., Appellants, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

679 A.2d 1017

Michael AKINS, Robert L. Taper, Joel Carrero, and William Barnes, Jr.,Appellants, v. UNITED STATES, Appellee.

Nos. 91-CF-860, 91-CF-1026, 91-CF-1034 and 91-CF-1083.

District of Columbia Court of Appeals.

Argued March 6, 1995.

Decided June 20, 1996.

APPEAL FROM THE SUPERIOR COURT, STEFFEN W. GRAAE, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Richard T. Brown, Glen Burnie, MD, for appellant Michael Akins.

Richard S. Stolker, Rockville, MD, for appellant Robert L. Taper.

Nicholas G. Karambelas, Washington, DC, with whom Steven R. Kiersh was on the brief, for appellant Joel Carrero.

Laura L. Rose, Public Defender Service, with whom James Klein and Gretchen Franklin, Public Defender Service, were on the brief, for appellant William Barnes, Jr.

Barbara A. Grewe, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB, FARRELL and RUIZ, Associate Judges.

RUIZ, Associate Judge:

This case, in which we affirm the judgment in part and remand in part, arises from offenses that were made somewhat extraordinary by the fact that its participants memorialized the developing events on film. On October 28, 1989, appellants Michael Akins, Robert Taper, Joel Carrero, and William Barnes, as well as former codefendant Bryan Davis¹ and other juvenile and unindicted coconspirators, assaulted two individuals in two separate incidents with the ultimate goal of robbing them. Lonnie Bryant, the government's key witness, testified that on the evening of October 28, he joined a group of friends that included all the appellants except Barnes in the 5400 block of Ninth Street, Northwest. One member of the group suggested beating up "pipeheads," or users of crack cocaine, and taking their money. According to Bryant, everyone present registered agreement with the plan. Shortly thereafter, appellant Barnes — who used the nickname "Kirkey" — joined the group, stopping first a few feet away for the purpose of speaking to appellant Taper and "playing with" a gun he brought by pointing it at Taper's face. A few minutes later, after joining the group, appellant Barnes put the gun some place where it was not again seen. Further conversation ensued, but Bryant could not hear its contents.

Shortly thereafter, without the active participation of appellants Barnes or Akins, the group attacked its first victim, a young man in a striped shirt who remained unidentified at the time of trial. A juvenile coconspirator, Quentin Bennett, filmed the attack from a location so close that the fear in the victim's eyes was clearly visible. A long metal pipe, of which Bennett claimed ownership at trial,² was used to assault and subdue the victim, who repeatedly asked why this was being done to him and indicated that he had a "ten" that the perpetrators were free to take. Towards the end of this videotaped incident, at least one individual is heard to say that he had obtained the ten. The event ended when an unknown person shouted "D.C. Police!" According to Bryant, everyone who was present scattered and sought shelter in various houses along Ninth Street. The entire incident took about two minutes, according to the time stamps appearing on the camera screen.

About fifteen minutes later, the group located its second victim, Charles Lawson. According to Bryant, this incident began when Bennett noted to his friends that he had identified "two live ones," Lawson and a companion, who had the misfortune to be walking up Ninth Street after the appellants and their coconspirators had emerged from the respective shelters in which they had hidden after the first attack. Bryant testified at trial that right before the group descended on Lawson, Carrero shouted that the others, including appellants Taper and Barnes, "all know what to do!" All the personspresent indicated that they did. As appellant Carrero performed the function of cameraman and running commentator, four individuals, including appellants Akins, Taper, and Barnes, began to circle Lawson. As noted in Carrero's commentary, appellant Taper "stole" Lawson, or punched him in the face, and knocked him out. As Lawson lay on the ground unconscious, and unknown bystanders clapped and laughed, Davis spit on Lawson and Bennett urinated on the side of his face. Appellant Akins searched Lawson's pockets and recovered an undiscernible object. Appellant Barnes then urinated on Lawson's face. Carrero gave the putative viewer the benefit of a close-up of Lawson as he suffers this treatment.

Eventually some members of the group decided that Lawson should be roused and made to move on. After being kicked and shoved, Lawson was brought to his feet and various items were returned to him, including a leather jacket that someone noted was too damaged by urine to keep. Lawson staggered first into and then down the street, and tried to enter a car that apparently was not his. Theron Brown, another juvenile coconspirator, and appellant Akins, repeatedly attempted to inform a pathetically confused Lawson that his car was up the street and that he needed to go home. The taping ended after appellant Carrero had interviewed and congratulated several of the appellants about their various roles in this escapade. Appellant Barnes was seen heading away from the scene towards his own vehicle saying that he has "got to do it to him, man."

Bryant testified that as appellant Barnes entered his car, appellant Carrero noted loudly that Barnes was "going to burn" Lawson. Appellant Barnes entered his car and drove slowly towards Lawson, who seemingly was still lost.³ Appellant Barnes stopped and exited the car, grabbed Lawson, reached back into the car, got his gun, shot Lawson in the buttocks, and drove away. The police arrived on the scene about this time and helped Lawson to be transported to Washington Hospital Center. A special police officer who inventoried Lawson's wallet at the hospital testified that there was neither money nor a Citibank credit card in the wallet, both of which Lawson claimed were there earlier in the day.

A few weeks later, on December 15, 1989, a bounty hunter was hired by a licensed bail bondsman to locate appellant Carrero, who had jumped bail on an unrelated charge. The bail bondsman and the bounty hunter had information that appellant Carrero was in New York, and after inquiring at several locations, focused their efforts on a particular apartment in the Bronx. Appellant Carrero was not at that apartment, nor did he ever return. Nevertheless, after breaking down the apartment door, the bounty hunter and the bondsman stayed at the apartment for three days and two nights, eating, sleeping, and watching videos. On the second day of their stay, appellant Carrero's brother entered the apartment and, after clearing his identity with the bounty hunter who first mistook him for Carrero, asked the bounty hunter and the bondsman whether they had seen the videotape of October 28. The bounty hunter watched the tape, took it, later left New York without Carrero, and turned the tape in to the Metropolitan Police Department. The appellants were shortly thereafter indicted for the armed robberies and the related offenses.

During the police investigation of the incident, Lawson, who suffered from serious and recurring memory loss for reasons independent of this incident, identified only appellant Barnes as a person who had played a role in the events of October 28, although Lawson could not name the role. Bryant, who would later testify at trial for the government, picked out appellant Barnes from a photo array shown to him by the police when asked to identify the person known to him as "Kirkey." According to a police detective, the juvenile cameraman Bennett also identified appellant Barnes when asked who "Kirkey" was in a photo array, by saying "That's Kirkey. He shot him." Various appellants gave statements to the police. A records searchrevealed that appellant Barnes did not have a license to carry a pistol in the District of Columbia.

After a trial by jury, all the charged participants were convicted of conspiracy to commit robbery. The jury also found (1) that appellant Akins was guilty of robbery in the second incident while armed with a pipe; (2) that appellant Taper was guilty of both robberies, committed while armed with a pipe and a pipe and pistol, respectively, as well as possession of a firearm during a crime of violence (PFCV); (3) that Carrero was also guilty of both robberies while armed with a pipe; and (4) that Barnes was guilty of the second robbery while armed with a pipe and pistol, assault with a deadly weapon, carrying a pistol without a license, and PFCV.

Various claims of error are made on appeal. Appellant Barnes claims a violation of his Sixth Amendment right to a speedy trial. Appellants Taper and Carrero claim that the bounty hunter's seizure of the videotape violated their Fourth Amendment rights. Appellants Barnes and Carrero claim that certain out-of-court statements made by Akins, Taper, and Brown were erroneously admitted into evidence in violation of Barnes' and Carrero's rights under the Confrontation Clause of the Sixth Amendment and in contravention of evidentiary rules. Appellant Barnes also challenges the admission of Bennett's out-of-court statement identifying Barnes as the shooter on the same grounds. Appellant Taper challenges the admission of the videotape and its transcript on evidentiary grounds. Almost all appellants challenge the sufficiency of the evidence to convict on various...