Corbin v. United States

• Decision Date: 23 July 2015
• Docket Number: No. 13–CF–410.,13–CF–410.
• Citation: 120 A.3d 588
• Parties: James A. CORBIN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

120 A.3d 588

James A. CORBIN, Appellant

v.UNITED STATES, Appellee.

No. 13–CF–410.

District of Columbia Court of Appeals.

Argued Feb. 19, 2015.

Decided July 23, 2015.

Daniel Gonen, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant.

Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Erik Kenerson, and Peter Lallas, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE–RIGSBY and BECKWITH, Associate Judges, and BELSON, Senior Judge.

Opinion

BLACKBURNE–RIGSBY, Associate Judge:

The central issue on appeal is one of statutory construction, namely, whether the District of Columbia's carjacking statute, D.C.Code § 22–2803 (2001), encompasses attempted unarmed carjacking. We conclude that it does not, and that the government must charge a suspect of attempted unarmed carjacking under our general attempt statute, D.C.Code § 22–1803 (2013 Supp.), separately from the completed offense.

Following a jury trial, appellant James Corbin was found guilty of four counts resulting from two incidents that occurred on December 16, 2007. For the first incident, involving Eva Kleederman, appellant was convicted of unarmed carjacking and robbery of Ms. Kleederman's keys.¹ For the second incident, involving Christine Cannon, appellant was convicted of unarmed carjacking and first degree theft of personal property in the car.² Primarily, appellant challenges the sufficiency of the evidence supporting the carjacking of Ms. Kleederman, arguing that the evidence shows that he merely attempted to take Ms. Kleederman's car, and that the carjacking statute under which he was charged and convicted does not proscribe attempted carjacking. We agree, and we vacate this conviction and remand for resentencing for attempted carjacking in accordance with our holding.

In addition to his sufficiency claim, appellant argues that the trial court abused its discretion by: (1) permitting the government to comment, in closing argument, on appellant's right to independent DNA testing under Teoume–Lessane v. United States, 931 A.2d 478 (D.C.2007), when defense counsel did not open the door to this argument, and (2) refusing to issue a proposed jury instruction on scientific research suggesting that an eyewitness's level of confidence does not correlate to reliable identification. We affirm the trial court's ruling on these claims.³

I. Factual Background

A. The Kleederman Carjacking

On the afternoon of December 16, 2007, Ms. Eva Kleederman drove her five-year-old daughter from their home in Virginia to a violin recital at a venue on Mississippi Avenue, Southeast, Washington, D.C. Ms. Kleederman testified at trial that she was unfamiliar with the area and became lost while following printed directions. Upon seeing a man—presumably appellant—walking nearby, Ms. Kleederman rolled down her window and asked him for directions to Mississippi Avenue. Ms. Kleederman described appellant as an African–American and a “slight person,” about five feet and six or seven inches tall, “fifty-ish,” with “salt and pepper-ish, grayish” hair and “rough ... sandpapery ... gravelly” skin on his face, possibly due to “a bad shave or pocked skin,” wearing jeans and a mid-thigh length dark green or black “parka-looking winter jacket.” When Ms. Kleederman asked him for directions, appellant opened the passenger side door of her car “in the blink of an eye” and sat in the passenger seat, stating that he lived near Mississippi Avenue and would direct her. Ms. Kleederman was shocked and told appellant that she does not take passengers, but he responded “that's okay. I understand. I'm an honest person.” Although she felt alarmed, Ms. Kleederman “didn't want to appear biased or racist just because [she] found [her]self in ... a part of town [she] knew to be largely black” and decided to drive on, “against [her] better judgment.” Appellant directed Ms. Kleederman for about ten minutes and avoided her attempts at conversation. During the drive, Ms. Kleederman noticed a cut on appellant's middle or index finger that was “oozing ... gelatinous blood,” and later found some of this blood on the door and dashboard of her car.

Upon entering a wooded street in Fort Dupont Park, identified at trial as Fort Dupont Drive, Southeast, appellant instructed Ms. Kleederman to slow down, saying “I live near here.” When Ms. Kleederman slowed down, appellant began to push her toward the driver-side door, saying “get out of the car” while trying to pull the key out of the ignition. At the same time, Ms. Kleederman began to push on the car horn and scream for help. Appellant was unable to pull the key out of the ignition, but managed to wrench away all of the other keys attached to it. He then exited the car, walked around to the driver side door, and tried to pull Ms. Kleederman out. At that moment, Mr. Amin Muslim and Mr. Stanley Daniels were driving by and stopped their car to aid Ms. Kleederman, prompting appellant to run off into a wooded area separating Fort Dupont Drive from Minnesota Avenue, Southeast. Mr. Muslim gave chase into the woods while calling 911 on his phone but eventually lost sight of appellant as appellant exited the woods toward Minnesota Avenue.

Meanwhile, off-duty police officer Stephanie Poyner of the Metropolitan Washington Airports Authority Police Department was visiting her mother at her childhood home on G Street, Southeast, which intersects Minnesota Avenue just opposite the wooded area into which appellant had fled. Drawn by the sound of a woman screaming for help coming from the direction of Fort Dupont Park, Officer Poyner walked to the intersection of G Street and Minnesota Avenue. Looking towards the wooded area, she saw a man exit the wood line at a place where there were no trails and where she had never before seen a person enter or exit. Officer Poyner came within thirty-five feet of the man and described him as an African–American of “average weight,” approximately five feet and seven inches tall, with “mixed gray hair,” wearing blue pants and a black thigh-length jacket. The man crossed Minnesota Avenue and entered another wooded area behind G Street. Officer Poyner drove into Fort Dupont Park, found Ms. Kleederman, and reported what she had seen to police officers on the scene. After the incident, the United States Park Police swabbed several smears of blood in Ms. Kleederman's car and submitted the swabs to the Federal Bureau of Investigation (“FBI”).

B. The Cannon Carjacking

Before dark that same evening,⁴ Ms. Christine Cannon and her fiancé, Mr. Ahmad Johnson, were driving home after a day of shopping, in which they had filled Mr. Johnson's car full of Christmas presents. Ms. Cannon, who was three or four months pregnant at the time, asked Mr. Johnson to stop for a snack, so he parked in front of the Dollar General store at a strip mall on Pennsylvania Avenue, Southeast, and Minnesota Avenue. Ms. Cannon remained in the passenger seat of the car with the car keys in the ignition. Shortly after Mr. Johnson left, Ms. Cannon saw a man—whom she identified as appellant at trial—look into the car “like [he was] scoping.” The car was unlocked and appellant swiftly entered and sat in the driver's seat and told Ms. Cannon to “get the f- - -[expletive] out of the car.” Ms. Cannon said “no” and reached for the keys, but he hit her in her chest. Ms. Cannon attempted to open her door and call out to Mr. Johnson, but appellant pulled her door shut, saying “b- - - -[expletive] you should have got out of the car. Now I'm going to kill you.” Appellant kept his left hand in his jacket throughout the incident and, at some point, told her that he had a gun and would shoot her.

Appellant sped away with Ms. Cannon in the car, driving “like a maniac” on both sides of the road. Ms. Cannon tried to look back and appellant hit her in the jaw, saying “turn your a- -[expletive] around.” Eventually, Ms. Cannon covertly spilled some ginger ale on her dark jeans and told appellant that she was pregnant and believed she was having a miscarriage because she was “bleeding.” The man slowed down enough to shove Ms. Cannon out of the car and then pulled away. Ms. Cannon stumbled but caught her fall, and found a ride back to the Dollar General store.

Ms. Cannon described the man who had driven the car at trial as “brown skinned,” and “not a big guy,” in his thirties to forties, with “salt and pepper hair” and an unshaved face “like a goatee” or “a full beard” that he was “trying to grow in.” He appeared to be wearing black or blue jeans, and a “black leather or black sweatshirt with leather in it,” which Ms. Cannon later referred to as a “jacket.” In identifying appellant at trial, Ms. Cannon stated that his most memorable attribute were his eyes, which told her “not to play with him” during the events in question.

C. Connecting the Crimes

Shortly after Officer Poyner left the scene of the Kleederman carjacking, she happened to be driving toward the intersection of Pennsylvania Avenue and Minnesota Avenue where the Dollar General store was located. It was evening by this time, but some daylight remained.⁵ As she neared the intersection, Officer Poyner noticed the man whom she had seen running from the wooded area across Minnesota Avenue earlier in the afternoon. She testified at trial that she recognized his “clothing” and his “physical appearance.” Circling around to observe him, she saw him looking into cars at a Shell gas station next to the strip mall where Ms. Cannon sat waiting in Mr. Johnson's car. Officer Poyner saw him approach and enter the driver seat of Mr. Johnson's car while a woman sat in the passenger seat. In “a matter of seconds,” the car sped off and Officer Poyner followed in her personal vehicle while calling 911. The man drove erratically down Pennsylvania Avenue,...