Buskey v. United States

• Decision Date: 10 November 2016
• Docket Number: 14–CF–1203,Nos. 14–CF–1148,s. 14–CF–1148
• Citation: 148 A.3d 1193
• Parties: Lamont L. Buskey and Keith A. Simms, Appellants, v. United States, Appellee.
• Court: D.C. Court of Appeals

148 A.3d 1193

Lamont L. Buskey and Keith A. Simms, Appellants,

v.United States, Appellee.

Nos. 14–CF–1148

14–CF–1203

District of Columbia Court of Appeals.

Argued March 2, 2016

Decided November 10, 2016

Deborah A. Persico for appellant Lamont L. Buskey.

Margaret M. Cassidy for appellant Keith A. Simms.

Candice C. Wong, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman and Michelle Parikh, Assistant United States Attorneys, were on the brief, for appellee.

BEFORE: Glickman and Easterly, Associate Judges; and Reid, Senior Judge.

Reid, Senior Judge:

These appeals arise from two robberies that took place in the Northwest quadrant of the District of Columbia in September 2013. Appellants Lamont L. Buskey and Keith A. Simms were indicted on multiple felony charges relating to the robberies.¹ Following a jury trial, they were found guilty of all charges. On appeal, Mr. Buskey and Mr. Simms contend that the trial court (1) made several instructional errors relating to the CDW offense, co-conspirator liability, and aiding and abetting liability for “while armed” offenses; and (2) erred in responding to jury questions posed during deliberations, and by sending written responses instead of reconvening the jury and reading the responses aloud. For the reasons stated below, we affirm the judgments of the trial court.

FACTUAL SUMMARY

The Government's Evidence

The record reveals that the first robbery took place on September 7, 2013. Complainants Roxana and Jennifer Carranza testified as follows. Mr. Buskey and Mr. Simms followed teenage sisters Roxana and Jennifer Carranza into their apartment building in the 3800 block of 14th Street Northwest. The men entered the elevator with the sisters, and indicated that they were going to the seventh floor. When the elevator reached the third floor, where the sisters lived, the men “block[ed] the door” and trapped them inside the elevator. The sisters tried to get out of the elevator, but both men “pushed [them] against the wall in the corner of the elevator.” The sisters began to scream. Mr. Simms, the shorter man, stepped out of the elevator to ensure that nobody was there and then returned to the interior of the elevator. The elevator began moving to the seventh floor. Mr. Buskey, the taller of the two men, pulled out pepper spray, thrust it near Roxana's face, and said, “Give me your chains before I stab you.” Jennifer noticed that the taller man had his hand in his pocket when he said, “Give me your chains or I'll stab you. I'll stab the sh*t out of you.” Mr. Buskey and Mr. Simms snatched the sisters' gold necklaces, demanded their rings, and grabbed Roxana's bracelet. The elevator moved to the basement floor. A lady was standing in the basement; the shorter man spoke to her and she directed the men to the exit. Jennifer gave a similar account of the robbery during her testimony.

The government introduced corroborating surveillance video evidence showing Mr. Buskey and Mr. Simms approaching the building and following the Carranza sisters inside. The video depicted Mr. Simms stepping off the elevator on the basement level, Mr. Buskey running down the hallway, and both men leaving the building. Roxana made an in-court identification of Mr. Buskey. During re-cross examination, she was presented with a photo array and she identified one of the defendants as one of the perpetrators.²

The second robbery occurred on September 16, 2013. According to Mr. Sanchez de Paz, Mr. Buskey and Mr. Simms followed him into his house, located in the 3600 block of Warder Street Northwest (less than three quarters of a mile away from the Carranza sisters' building). When Mr. Sanchez de Paz tried to close the door, Mr. Buskey, with Mr. Simms's help, grabbed Mr. Sanchez de Paz's hands, forced them behind his back, pushed him into the house, and threw him to the ground as Mr. Buskey demanded money. Mr. Buskey held a knife to Mr. Sanchez de Paz's neck while Mr. Simms went through his pockets and took his cash, two cellphones, and keys; they kicked him in the back and asked for the location of his room. Hoping to get help, Mr. Sanchez de Paz directed them to the basement room where his friends, Minor Camo and Fausto Lopez, lived. Mr. Buskey used the keys he had taken and opened the door to the basement unit while Mr. Simms held a knife to Mr. Sanchez de Paz's neck and restrained his arms behind his back.³

Mr. Camo testified that Mr. Buskey entered the room where Mr. Camo and Mr. Lopez lay sleeping. Mr. Buskey signaled Mr. Camo to come over; Mr. Camo, assuming Mr. Buskey was a repairman, complied. As Mr. Camo noticed Mr. Simms on top of Mr. Sanchez de Paz, Mr. Buskey snatched Mr. Camo's necklace off his neck with one hand, took out a knife with the other hand, and pointed the knife at Mr. Camo. Mr. Camo grabbed a bottle from the trash and prepared to “throw it at [Mr. Buskey].” Mr. Buskey “took off running.” Mr. Lopez testified that he was awakened by someone trying to force open the door to his room. He saw a man enter the room with a knife, and noticed that Mr. Camo had grabbed a bottle. The intruder left the room.⁴

Jose Umna, who worked at Famous Pawnbrokers in Silver Spring, Maryland, a store that pawns and buys used merchandise, identified surveillance video taken at the store on September 7, 2013, and September 16, 2013, the dates of the robberies. The videos depicted Mr. Simms and Mr. Buskey. Mr. Umna also identified a document, routinely kept at the store, that listed all transactions by date and by name of the customer. The document listed the following items next to Mr. Simms's name—“necklace, bracelet, rings.” After watching the surveillance videos of the store for September 7 and 16, 2013, Paulette Hebron, Mr. Buskey's mother, identified him as one of the persons in the videos.

The Jury Instructions

After all of the evidence had been introduced,⁵ the trial court discussed the proposed jury instructions with all counsel. On the morning of May 22, 2014, the trial court made a brief reference to the aiding and abetting liability theory as he discussed the co-conspirator liability theory. The prosecutor asked that the court give the instruction on co-conspirator liability, Criminal Jury Instruction No. 7.103 (A), explaining in response to a question from the trial judge, that if the jury found there was a conspiracy it could “find liability under the co-conspirator liability theory,” but if the jury “fail[ed] to find a conspiracy,” it could “consider the aiding and abetting theory [of liability].” The judge asked if defense counsel objected to adding 7.103 (A), and noted that he “assume[d] [he] would just add it at the bottom of the conspiracy instruction, ... [o]r at the end of the rest of the instructions[.]” When counsel for Mr. Simms questioned the need for 7.103 (A), at the judge's request, the prosecutor repeated her previously stated rationale for requesting the co-conspirator liability instruction. The judge asked all counsel to focus on that issue, and inquired if there was anything defense counsel “needed to change” in the proposed instructions; the judge gave counsel additional time to respond.

After the lunch break, the trial court revisited the proposed instructions. Counsel for Mr. Buskey stated that he had “no additions, deletions, or corrections,” and counsel for Mr. Simms declared that he was “fine” with the proposed instructions. The prosecutor asked where the judge had placed the co-conspirator liability instruction, and whether it was “separated from the conspiracy [instruction].” The judge responded, “It's at the end of the overt acts.” Neither defense counsel objected to the location or the substance of the co-conspirator liability instruction.

During its instructions to the jury, the trial court identified the elements of each of the charged offenses: conspiracy to commit burglary, robbery, and kidnapping; second degree burglary (September 7th incident—the Carranza sisters); first degree burglary while armed (September 16th incident—Sanchez de Paz and Camo); kidnapping (of the Carranza sisters); kidnapping while armed (of Mr. Sanchez de Paz); armed robbery (of Mr. Sanchez de Paz and Mr. Camo); robbery (of the Carranza sisters); and CDW (the September 16th incident). The trial court also instructed the jury on co-conspirator liability, and aiding and abetting liability.⁶ The court gave the co-conspirator liability instruction after most of the substantive conspiracy instruction, including the alleged overt acts. However, when the trial court finished with the instruction about overt acts, it turned to the subject of proof regarding a conspiracy, and added a one-sentence description of a conspiracy before transitioning to the co-conspirator liability charge. After giving the co-conspirator liability charge, the trial court summarized the proof necessary to establish the crime of conspiracy. Then the court moved on to lay out the elements of second degree burglary.

The aiding and abetting liability instruction was not given until after the court had discussed all of the substantive crimes. The court referenced burglary, robbery, and kidnapping during its aiding and abetting liability instruction, but it made no mention of the CDW charge;⁷ nor did the court mention the “while armed” element for burglary, robbery, or kidnapping. Counsel for Mr. Buskey and Mr. Simms did not voice an objection at the end of the trial court's instructions to the jury.

The Jury Notes

On the day after receiving the court's instructions, the jury sent a note to the judge at 2:16 p.m., inquiring first about the scope of the intended use of an object as a dangerous weapon—“In regards to the third element of ‘carrying a dangerous weapon,’ please clarify the scope [of] intended use?” The jury further explained its inquiry about intended use. In its response to this inquiry, the re-instruction clarified the distinction between carrying an object “as a tool or for...