Dancy v. US, No. 97-CF-793

Decision Date27 January 2000
Docket Number No. 97-CF-793, No. 97-CF-800., No. 97-CF-925
Citation745 A.2d 259
PartiesLarry DANCY, Michael E. Mason, Jr., and Clayvon D. Anderson, Appellants, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

G. Godwin Oyewole, Washington, DC, appointed by the court, for appellant Dancy.

Francis T. Lacey, Rockville, MD, appointed by the court, for appellant Mason.

Kenneth E. Sealls, Washington, DC, appointed by the court, for appellant Anderson.

Alyse Graham, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Jennifer M. Anderson, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL, GLICKMAN, and WASHINGTON, Associate Judges. WASHINGTON, Associate Judge:

Appellants Larry Dancy, Michael Mason, and Clayvon Anderson were convicted by a jury of conspiracy to commit armed robbery,1 first-degree burglary while armed,2 two counts of armed robbery,3 two counts of first-degree murder while armed (premeditated),4 four counts of first-degree murder while armed (felony murder),5 and assault with intent to kill while armed.6 Mason and Anderson were also convicted of possession of a firearm during a crime of violence or dangerous offense,7 and carrying a pistol without a license.8 Appellants filed timely appeals on various grounds. We affirm and remand solely for the purpose of allowing the trial court to vacate certain merging convictions and resentence accordingly.

I.

This case arises from the murders of Michelle and Thirese Lewis during a robbery of their home. On the morning of November 1, 1995, Michael Lewis telephoned appellant Anderson to buy either a half or full kilogram of cocaine. Lewis kept the money for his drug purchases in a safe that was hidden in a cardboard box in his mother's second-floor bedroom. The safe contained cash, personal papers, drugs, and a man's gold and diamond ring. Anderson had been present on several occasions when Lewis had conducted drug transactions and was aware that Lewis retrieved large amounts of cash from the safe upstairs. Anderson informed Lewis that he could be at Lewis' mother's house on Fifth Street with a half to a full kilogram of cocaine within thirty minutes. Lewis told Anderson that thirty minutes was inconvenient, but he would call Anderson at 12:30 p.m. to arrange a time for the buy.

On the same morning, appellant Mason visited his girlfriend, Dominique Williams. Mason asked Williams if he could use her telephone to call Anderson. After the telephone call, Mason asked Williams if she would drive him to pick up Anderson and to a drug deal with "Mike." Before leaving, Mason pulled out a silver revolver, checked the barrel to see if it was loaded, and put it in his inside coat pocket. As they were driving in Williams' car, a white Cadillac, they spotted appellant Dancy, otherwise known as "Boogie."9 Mason got out of the car to speak with Dancy, the two men got back in the car, and they then picked up Anderson.

After picking up Anderson, Mason directed Williams to drive to a house at 1010 Fifth Street, Northeast. Mason told Anderson to call to see if "Mike" was home. After placing the call, Anderson reported that "Mike" was not home. Mason told Williams to circle the block so that he could look for "Mike's" truck. When they did not see the truck, Mason told Williams to turn into an alley. Before exiting the car, Mason asked Anderson if he was "strapped," and Anderson answered yes. At about this time, a neighbor saw a white Cadillac pull into an alley and stop. As she passed the car, she saw that four people were inside. She saw three of them get out of the car, leaving one behind in the driver's seat. The three approached the house at 1010 Fifth Street.

Inside the house were Lewis' sisters, Michelle and Thirese, their mother's boy-friend, James Reed, and Ronnie Sloan, Thirese Lewis' common law husband. Reed, while using the bathroom in the basement of the house, heard a scream and feet pounding upstairs. He then heard what sounded like several gunshots. Sloan, who was sleeping on the second floor of the house, woke up to the sound of gunshots. As he went to his bedroom door, he saw one man running down the stairs calling out, "It's one in the closet." A second man then came out of Mrs. Lewis' bedroom, stood in front of Sloan, and pointed a large revolver at him. Sloan recognized the man as "Mike" from his old neighborhood. Mason then shot Sloan three times in the chest. The two Lewis sisters had each been shot twice in the head.

Williams saw Anderson and Dancy come running from the direction of the house towards the car. According to Williams, Anderson and Dancy looked excited and had smiles on their faces. Anderson was carrying a large cardboard box. Mason quickly walked down the alley about two minutes later. Once in the car, Mason pulled his gun out of his jeans and put it in his coat and told Williams to drive away. As Williams drove away, Anderson and Dancy were shaking and fumbling with a safe that they had removed from the cardboard box. Dancy said, "Man, there ain't nothing in here, sound like some papers; we did all that for nothing." Mason asked Anderson, "Man, why you ain't shoot?" Anderson responded, "I tried to shoot but my gun got stuck." Mason then asked Anderson, "Man why you call out my name?" and yelled at Anderson for having called out Mason's name inside the house. Anderson explained that there was someone in the closet and that he needed Mason's help in looking for the safe.

Williams drove the group back to the house of Nitiya Miller, Anderson's old girlfriend. As they went inside, one of them was carrying the safe, and Mason and Anderson were carrying their guns. Anderson and Dancy went to find tools with which to open the safe. Mason finally opened it unassisted and found that it contained money, drugs, papers, and some jewelry. The three men began to count the money and to divide the items up among themselves. They each took a share of the money and drugs, and Anderson and Dancy each took a ring.

Anderson asked Mason to take the safe and dump it somewhere as Mason, Dancy and Williams were leaving, but Mason refused. Anderson took the safe to the back yard, burned the remaining papers to ashes, and rinsed out the safe with a hose. Miller then asked Anderson, "what was going on, who did you [Anderson] get." Anderson responded that he had "robbed some niggers in Northeast."

Williams dropped Dancy off at his apartment complex and then returned to her apartment building with Mason. Mason pulled out his gun and said he "had some bodies on it" and that he "had to get rid of it." He went across the hall to his cousin Sharnita Green's apartment and returned a few minutes later. When he returned, Mason described for Williams in detail what had happened inside the Lewis house. Later that day, Green was fixing a couch in her apartment when a silver or gray revolver, which she recognized as Mason's, popped out of it.

II. LARRY DANCY

Dancy argues on appeal that (1) the trial court committed reversible error when it denied his motion for severance; (2) the trial court erred in sentencing him for a total of two counts of premeditated murder, four counts of felony murder while armed, as well as the underlying felonies of armed robbery and burglary while armed; and (3) the trial court committed reversible error by denying his motion for judgment of acquittal.10 Dancy first argues that the trial court erred in denying his motion for severance. An order denying severance may be reversed only upon a clear showing of abuse of discretion. See Winestock v. United States, 429 A.2d 519, 526 (D.C. 1981)

. In order to establish that the trial court abused its discretion in denying a severance, "a defendant must show not merely prejudice, but manifest prejudice." Elliott v. United States, 633 A.2d 27, 34 (D.C.1993) (internal quotation and citation omitted). Dancy specifically contends that the trial court abused its discretion in failing to grant severance under Super. Ct. Crim. R. 14 because his defenses were irreconcilable with that of Anderson, and Anderson's counsel had assumed the posture of a "second prosecutor" by pointing a finger at Dancy as the second gunman during his closing argument.11 There exists a strong presumption that two defendants charged with jointly committing a criminal offense will be tried together. See Ingram v. United States, 592 A.2d 992, 996 (D.C.), cert. denied, 502 U.S. 1017, 112 S.Ct. 667, 116 L.Ed.2d 757 (1991). In order for a defendant to be granted severance on the basis of conflicting defenses, he "must demonstrate `a clear and substantial contradiction between the respective defenses,' causing inherent irreconcilability between them." (Ronald) Garris v. United States, 559 A.2d 323, 329 (D.C. 1989) (quoting Tillman v. United States, 519 A.2d 166, 169 (D.C.1986)).

According to Dancy, his defenses were irreconcilable with that of Anderson because each attorney argued that his client did not participate in the crimes. The trial court, however, in denying Dancy's motion for severance, rejected the assertion that the defenses were irreconcilable. The trial court noted that Anderson's defense was merely that the government had not proven its case with respect to himself. Furthermore, neither Dancy nor Anderson called any witnesses on his own behalf. Any theory of the case with respect to Dancy or Anderson was only provided through closing arguments. Closing arguments by counsel are not evidence for severance purposes because the "level of the antagonism in defenses is measured by the evidence actually introduced at trial." United States v. Rose, 104 F.3d 1408, 1417 (1st Cir.), cert. denied, 520 U.S. 1258, 117 S.Ct. 2424, 138 L.Ed.2d 187 (1997).

The trial court further found that, even if Dancy's and Anderson's defenses were conflicting, Dancy was not prejudiced by the conflict....

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