BOND v. U.S., 89-CF-1186

• Decision Date: 15 September 1992
• Docket Number: No. 89-CF-1186,89-CF-1186
• Parties: Erving N. BOND, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

614 A.2d 892

Erving N. BOND, Jr., Appellant, v. UNITED STATES, Appellee.

No. 89-CF-1186.

District of Columbia Court of Appeals.

Argued September 25, 1991.

Decided September 15, 1992.

Appeal from the Superior Court, District of Columbia, Robert A. Shuker, J.

Jensen E. Barber, Washington, D.C., appointed by this court, for appellant.

William R. Cowden, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Jr., and Patricia A. Riley, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before TERRY, STEADMAN and FARRELL, Associate Judges.

FARRELL, Associate Judge:

Appellant was found guilty by a jury of three counts of kidnapping while armed (D.C.Code §§ 22-2101, -3202 (1989)); three counts of armed robbery (D.C.Code §§ 22-2901, -3202 (1989)); one count of assault with a dangerous weapon (D.C.Code § 22-502 (1989)); and two counts of carrying a pistol without a license (D.C.Code § 22-3204 (1989)).¹ He advances four grounds for reversal of all or some of his convictions: (1) the trial court's refusal to sever counts unfairly prejudiced his defense; (2) the court improperly admitted into evidence a signed confession obtained from appellant while he was in police custody; (3) the court lacked subject matter jurisdiction to try one of the armed robbery counts and one of the armed kidnapping counts; and (4) the court improperly admitted evidence of crimes not charged in the indictment. Appellant also contends that on the facts here the convictions for armed kidnapping merge into the armed robbery convictions. Only the severance and confession issues require more than summary discussion. We affirm.

I.

The acts from which appellant's convictions resulted took place over a four day period and involved four separate victims.

A. Fletcher Smith

According to the government's evidence, at eleven o'clock in the evening of October 30, 1988, Fletcher Smith was driving his car near 58th and Clay Streets, N.E., when he encountered appellant and an accomplice, Arnold Carter.² Pretending to need help in jump-starting their car, the two succeeded in entering Smith's car, where afight started. Smith managed to flee his car but several shots were fired, one striking him in the hip. Two and a half months later, police recovered another bullet from a car parked at the scene on the night of October 30; it had been fired from a silver .25 caliber pistol later found in Carter's possession on November 4, 1988. At trial Smith positively identified appellant as the man who had shot him, and the pistol taken from Carter as the weapon used by appellant on October 30. The jury found appellant guilty of assaulting Smith with a dangerous weapon and carrying a pistol without a license on October 30.

B. Timothy Johnson

Three days later, after midnight, appellant and Carter approached Timothy Johnson in Jerry's Sub Shop, a carryout in Prince George's County, Maryland, just over the District of Columbia line. Appellant and Carter, whom Johnson did not know, asked him for a ride, but he declined, and they left the shop before him. When Johnson came out, the two were waiting for him in the parking lot. Carter had a handgun drawn and ordered Johnson to drive them to a nearby apartment complex. There the pair relieved Johnson of the contents of his pockets, including his automatic teller machine card, and ordered him to drive to an automatic teller machine, where appellant tried in vain to withdraw money from Johnson's account. Believing Johnson had not furnished the proper access code, appellant obtained the gun from Carter and shot Johnson in the back.

Despite the serious nature of the wound, the pair ordered Johnson to keep driving while they sought to use the card at various automatic teller locations, again in vain. Eventually, when the odyssey had taken them into the District of Columbia, Johnson became so weak he could no longer drive. Appellant put Johnson in the back of the car and began driving himself, in time returning to Maryland. There he and Carter again tried to operate an automatic teller machine using Johnson's card, and also robbed a crack cocaine dealer of his drugs and money. They returned to the District to smoke the cocaine and drive around a while longer, before abandoning Johnson and the car at an apartment complex on 58th Street, three-tenths of a mile from where they had assaulted Fletcher Smith three days earlier. Before leaving, they wiped the car clean of fingerprints and stole articles of clothing and cassette tapes from the vehicle. A short while later Carter came back and returned the car keys to Johnson, but Johnson was so weakened he could only drive the car a few feet. He attracted the attention of two passersby who summoned assistance.

At trial Johnson identified appellant as the man who had shot him, and the silver .25 caliber pistol seized from Carter as the weapon appellant used. A bullet removed from Johnson's body positively matched the gun. For his participation in these events, appellant was found guilty of armed kidnapping, armed robbery, and carrying a pistol without a license.

C. Andre Williams

Late in the afternoon of the same day, Andre Williams was driving on Davy Street near the Capitol Heights bus station in Maryland when he met appellant doubled over in the street waving for help. When Williams stopped his car and lowered the window, appellant put a silver gun to his head and made him open the door. Williams complied and appellant and Carter jumped in. Appellant handed the gun to Carter and took Williams' designer-type "EK" sunglasses. Carter took Williams' wallet and, upon finding an ATM card in it, ordered him to drive to two 7-Eleven stores and a Sovran Bank in an effort to match the card with a machine it would operate. Failing in these attempts, the pair ordered Williams to drive to his own bank where, after yet another failed encounter with an automatic teller machine, they directed him to the drive-up window. When they discovered he had only seventeen dollars in his checking account, they ordered him to follow the car of a bank customer who had just made a withdrawal. He did so but they changed their mind and made him drive to another bank in Maryland, where they observed a customer, Lona Gray,withdrawing funds at a drive-up window. They followed her to her home in Maryland and attempted to rob her at gunpoint as she left her car. Gray resisted by sitting on her purse, and the pair gave up the attempt when Gray's grandchild, who was in the car, began to cry.³ Appellant and Carter then ordered Williams to drive them back to the District, ending up at a 7-Eleven store near Benning Road and East Capitol Street.⁴ Seizing an opportunity, Williams escaped to a nearby restaurant, and appellant and Carter drove off in his car.

Williams identified appellant as one of the men who kidnapped and robbed him, and the gun seized from Carter on November 4 as the weapon with which the pair threatened him on November 3. The jury found appellant guilty of kidnapping Williams and of robbing him of his car, both while armed.

D. Kenneth Fields

Finally, still on November 3, appellant and Carter arrived in Williams' car at another 7-Eleven near the intersection of Eastern Avenue and Sheriff Road, N.E. They watched Kenneth Fields withdraw money from an automatic teller machine inside the store. When Fields left the store, Carter put a gun in his back and ordered him to his car. Abandoning Williams' car, the pair got in with Fields and made him drive several blocks to another place in the District, where appellant took Fields' wallet containing his money and the ATM card he had just used. The pair decided to return to the 7-Eleven at Sheriff Road and Eastern Avenue where they knew there was a machine that would accept Fields' card. Fields was placed in the passenger seat and appellant drove. When they arrived at the 7-Eleven, neither appellant nor Carter could find the ATM card, resulting in an argument. Fields shrewdly suggested the card was somewhere in the back of the car, and when appellant began helping Carter search in the rear seat, Fields fled and ran into the 7-Eleven, where he called the police. Appellant and Carter left in Fields' car, but later that day appellant was photographed by a bank surveillance camera using Fields' ATM card in an attempted withdrawal. In the photograph he was wearing a pair of "EK" sunglasses, which he admitted at trial were the glasses he had gotten from Andre Williams. Fields' car was ultimately found abandoned on 61st Street in the District.

Fields identified appellant as one of the men who had robbed and kidnapped him, and the silver .25 caliber pistol taken from Carter on November 4 as the gun used by his assailants. For these actions, the jury convicted appellant of kidnapping while armed and armed robbery.

II.

Appellant contends that, although the eleven counts for which he was tried were properly joined initially,⁵ the trial court abused its discretion by not severing counts under Rule 14, Superior Court Rules of Criminal Procedure, and ordering three separate trials. We disagree.

Severance may be warranted under Rule 14 "if joinder prejudices any party." Ray v. United States, 472 A.2d 854, 856 (D.C. 1984). A motion for "[s]everance should be granted for offenses of similar character unless (1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others."Cox v. United States, 498 A.2d 231, 235 (D.C. 1985) (citations and internal quotation marks omitted).⁶ However, the decision to sever or not is committed to the sound discretion of the trial court, Wright v. United States, 570 A.2d 731, 734 n. 8 (D.C. 1990), and to show an abuse of that discretion appellant must demonstrate that he suffered "the most...