Banks v. United States, No. 17-CF-336
| Decision Date | 10 September 2020 |
| Docket Number | No. 17-CF-336 |
| Citation | 237 A.3d 90 |
| Parties | Demetrius J. BANKS, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Daniel Gonen, Public Defender Service, with whom Samia Fam and Shilpa S. Satoskar, Public Defender Service, were on the brief, for appellant.
Christopher R. Howland, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Washington, DC, John P. Mannarino, Jason Park, and Julianne Johnston, Assistant United States Attorneys, were on the brief, for appellee.
Before Easterly, Associate Judge, and Washington and Fisher,* Senior Judges.
This case is about five robberies — two of which included sexual assault — and the law of severance. Appellant Demetrius Banks was indicted on twenty-five counts related to five armed attacks which occurred within two miles of each other over a one-month period in the summer of 2015. The charges included five counts of robbery while armed, four counts of kidnapping while armed, two counts of first-degree sexual abuse while armed with aggravating circumstances, and one count of assault with intent to commit first-degree sexual abuse while armed. Appellant repeatedly moved to sever the counts so that he could have five separate trials, but the trial court denied those motions. After a trial lasting more than three weeks, the jury found appellant guilty of twenty-three counts — including the robberies of all five women and both first-degree sexual assaults while armed.
Banks argues on appeal that (1) the two attacks that included sexual assaults (and robberies) should have been severed from the other three robberies, (2) the two sexual assaults should have been severed from each other, and (3) the three remaining robberies should have been severed from each other. In other words, appellant argues that he should have received five separate trials. We agree that the two robberies involving sexual assaults should have been severed from the other three robberies. However, the trial court properly declined to sever the sexual assaults from one another. Accordingly, we affirm all the convictions related to those two attacks.
We also agree that each of the remaining three robberies should have been severed for separate trials. Nevertheless, we affirm appellant's convictions related to the robbery of Dolores Rowen, whose stolen belongings were found in appellant's possession, because the failure to sever was harmless. We vacate the convictions related to the remaining two robberies and remand for two new trials.
T.C. walked home from the Fort Totten Metro Station around 10:30 p.m. on July 28, 2015. On Riggs Road, N.E., she noticed a man who appeared to be talking on his phone while standing in the driveway of a school. After T.C. walked past, he grabbed her arm from behind and pulled her toward him. T.C. felt a knife against her ribcage. When she asked if he was planning to kill her, the assailant said, "shut up or I will." As he forced her at knifepoint toward the back of the school, she offered her handbag but the man refused. Once they were behind the school, the assailant pulled down T.C.’s pants and penetrated her vagina with his penis as she leaned against a chain-link fence. T.C. offered to give up her phone, but the assailant declined to take it. He then penetrated her again while she lay on the ground.
After completing the sexual assault, the assailant hugged T.C. and apologized to her. He directed her to take a photo of her ID with his phone and to tell him her phone number, which he later called twice and texted once. After briefly chatting, the assailant left on a bicycle.
T.C. got home and, while crying and gagging, called her friend to tell her that she had been raped. She then dialed 911 and went to a hospital, where an examination revealed a laceration to her vagina. DNA collected from a vaginal swab matched that of appellant. T.C. later realized that her SmarTrip card and cash were missing. She did not get a good look at her assailant's face but described him as a skinny black man with a beard, about six feet one or two inches tall. A review by a Metro detective determined that someone used T.C.’s stolen SmarTrip card on both August 2 and August 29. Surveillance footage from August 29 showed the use of the stolen card by a woman who was standing next to a man. Looking at a still photo "captured" from that video, Lerazia White, a former romantic partner of appellant, identified those two individuals as herself and appellant; she also testified that appellant sometimes had given SmarTrip cards to her.
The second robbery took place shortly after midnight on July 31, 2015, as Sallay Manah walked home from the Fort Totten Metro Station. She passed a man standing in the front yard of a house on Gallatin Street, N.E., seemingly going to his car. The man ran behind her, grabbed her hard by the shoulder, dragged her into an alley, and pressed an object into her back. After Manah yelled "help!" and "rape!" the assailant threatened to kill her. They scuffled and Manah was hit in the lip. The assailant took Manah's handbag — he either demanded it or she offered it — and then told her to run in the opposite direction. The stolen bag included Manah's phone, SmarTrip card, and passport card.
Manah did not see the robber on a bicycle that night; however, she spotted the same person a few weeks later riding a bicycle in the neighborhood. When she saw a news story and read an article that featured a still image of appellant, she realized that he was her attacker. Manah described her assailant as a slim black man, about six feet tall, and in his early or mid-twenties.
At about 10 p.m. on August 4, 2015, Dolores Rowen walked home from the Fort Totten Metro Station. She saw a man walk toward her on the same side of Riggs Road, N.E. He grabbed her by the hair and placed a knife within inches of her throat. Rowen repeatedly screamed, "Take whatever you want!" The assailant responded, "come with me" and dragged Rowen toward a wooded area. She resisted him and fell to the ground. The man grabbed her purse, which included credit cards, a phone, her ID card, and a signed check, and walked away.
Rowen described her assailant as an "average to skinny-ish" black man, between six feet and six feet two inches tall, wearing black shorts and a white tank top. An eyewitness, Kathy Gomez, testified that she saw Rowen being robbed by a skinny black man with a beard and a white shirt. Rowen never identified appellant as her attacker and said she did not get a good look at his face. About an hour after the attack, Rowen's credit card was used at a 7-Eleven across the street from the Fort Totten Metro Station. Store surveillance footage showed a person using that card who generally matched Rowen's description of her assailant, although the person in the video wore a black shirt in addition to black shorts.
Tanya Bangura exited the Fort Totten Metro Station on the last Red Line train of the night, at about 3:30 a.m. on August 23, 2015. On her walk home, she turned to see a man riding a bicycle. As he continued on that street, Bangura turned onto a path. Shortly after she reached Gallatin Street, N.E., and turned left, the same man approached her on foot from the opposite direction and blocked her way, repeatedly demanding that she hand over her belongings and grabbing at the phone in her hand. Because "something in the voice or his movement got me scared," Bangura testified, she threw her handbag toward the ground in one direction and walked away in the other direction, as she had seen in movies. But she soon returned and asked to retrieve her foreign passport, which she testified was difficult to replace.
For the first time, Bangura saw a knife in the man's hand. The assailant opened her bag and the two briefly looked inside it. After neither saw Bangura's passport at first, the man said, "let's go over here," pointing to nearby bushes. Bangura declined, quickly found her passport, and walked away. She recalled that her assailant was a black man who wore a gray sweatshirt, gray pants, and a black hat. When police showed her a photo array of potential assailants, which did not include appellant, Bangura vacillated between two people but did not choose either. Several days later, her sister forwarded a video featuring appellant. Bangura's sister told Bangura that her husband thought that the person in the video might be Bangura's assailant. Bangura knew "[w]ithout a doubt" that the person in this video had attacked her because of the way he moved, walked, and "hitch[ed]" his pants. The related article's description of a black man between six feet and six feet two inches tall in his twenties or thirties with facial hair matched her recollection of the assailant.
The fifth attack took place just after midnight on August 28, 2015. As S.T. walked home from the Brookland-CUA Metro Station, one Red Line stop south of Fort Totten, she began smoking a marijuana joint. She then saw a man pass her on a bicycle and soon after noticed the same person enter the driveway of a house on Michigan Avenue, N.E. Just as S.T. walked by the driveway, the man moved toward her and grabbed her right arm from behind. The assailant pulled S.T. into the driveway and she screamed for help. He told her to stop yelling or he would kill her. After the assailant demanded that S.T. hand over her belongings, she gave him her handbag (which included a wallet with credit and debit cards). The man grabbed S.T.’s phone and SmarTrip card and asked for her cash. He again threatened to kill S.T., who saw that he held a knife.
The man dragged S.T. further into the driveway and forced her to face a brick wall. He pulled down her pants and penetrated her vagina with his penis as she leaned against the wall, eventually ripping the buttons off her shirt and fully undressing...
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