Davis v. United States, 8004.

Citation367 A.2d 1254
Decision Date30 December 1976
Docket NumberNo. 8004.,No. 8020.,8004.,8020.
PartiesJohn N. DAVIS, a/k/a James E. Porter, Appellant, v. UNITED STATES, Appellee. Morris J. WARREN, a/k/a Morris Saunders, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

George A. Fisher, Washington, D. C., appointed by this court, for appellant Davis.

Mildred Matesich, Public Defender Service, Washington, D. C., for appellee Warren.

Paul N. Murphy, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Raymond Banoun, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, KERN and GALLAGHER, Associate Judges.

KERN, Associate Judge:

A dozen women during a period of some eight months in 1972 and 1973 were abducted into a green Chevrolet Vega or similar car and subsequently raped by one or more men. These brutal crimes became known as the "Green Vega" rape cases and ultimately resulted in the late night arrest of appellant Davis. The arresting officers took such action upon (1) a composite drawing of one of the assailants prepared by a police artist from descriptions provided by the victims; and (2) a description of the similar modus operandi employed in all these crimes, detailed in a flyer issued to all police personnel throughout the city. Davis and appellant Warren, who was arrested subsequently, went to trial together on multiple counts of an indictment resting on seven separate incidents of rape and were convicted (except Davis on one such incident) by a jury and sentenced to substantial terms of imprisonment.

Specifically, appellants were charged in a forty-four count indictment with kidnapping while armed,1 armed robbery,2 armed rape,3 sodomy,4 assault with a dangerous weapon,5 and various lesser included offenses arising out of eight incidents involving eight women in the District of Columbia.6 Appellant Warren was convicted of four counts of armed kidnapping, three counts of armed rape, two counts of armed robbery, and one count each of assault with a deadly weapon and armed assault with intent to commit sodomy. Appellant Davis was convicted of six counts of armed kidnapping, five counts of armed rape, two counts of armed robbery and one count each of assault with a deadly weapon and armed assault with intent to commit sodomy, and was acquitted on six counts.


On this appeal, appellants raise several issues relating to joinder of defendants for trial, the reasonableness of the officers' stopping appellant Davis, and other assertions of error before and during the trial. Before taking up the joinder issues, we describe briefly the form and content of the government proof at trial.

In essence, each of the seven victims took the stand and described to the jury the circumstances of the crimes committed against her, including the date and the place and method of abduction, and the person or persons, if she knew, who had committed those crimes. Other witnesses testified for the government in corroboration of each of the victims' testimony as to what she had done in each case immediately after the criminal attack. These nonvictim witnesses were of course unable to make identification of any of the perpetrators. Thus each of the cases proved was in a sense a self-contained and separate account of a sordid event; there was virtually no overlap of testimony from one incident to another by a government witness.

The government proof at trial may be charted as follows:

                Date      Time      Victim  Place of Abduction   Method of Abduction      Weapons Used  Assailants
                6/19/72   11:30 p.m.    W.    14th St. & Rhode     Offer of ride in         Knife         Davis; Warren
                                            Island Ave., N.E.    green sports car
                                                                 resembling a Pinto
                11/12/72  Midnight      M.    4100 Wisconsin       Offer of ride in a       Revolver      Davis; Two
                                            Ave., N.W.           green Vega                             unidentified
                11/13/72  11 p.m.       T.    Howard University    Forced at gunpoint       Revolver      Davis; One
                                                                 into car, a green                      unidentified
                                                                 Vega or Toyota                         male
                11/20/72  6:30 p.m.     Wi.   Upper Wisconsin      Forced at gunpoint       Revolver      Davis; Warren
                                            Ave., N.W.           into car, a green                      One unidentified
                                                                 Vega                                   male
                11/20/72  11:30 p.m.    R.    Georgia Ave. &       Offer of ride in a       Revolver      Davis
                                            Scheridan St., N.W.  green Vega
                12/7/72   8 p.m.        J.    Winsconsin Ave. in   Offer of ride in a       Knife
                                            Maryland             two-door car resembling
                                                                 a Mustang
                1/23/73   Midnight      H.    East Capitol &       Forced at gunpoint       Revolver
                                            56th St., N.E.       into car, a green

It may be seen that the government charged in the indictment and presented evidence to the jury that appellant Davis alone had been responsible for crimes against the person of one victim; that an unidentified man or men participated with appellant Davis in crimes against two other women; and that appellant Warren had participated with appellant Davis in attacks on four victims.

From the above chart summarizing the government evidence in the seven criminal assaults resulting in guilty verdicts, it is clear that the perpetrators of the offenses employed a remarkably similar modus operandi : Each incident commenced between 6:30 p. m. and 12:15 a. m.; the complainants were all offered rides to their destinations, and then either entered the car voluntarily or were forced to enter; and a knife or gun was used in every incident. We further note that five of the victims described the vehicle as a green Chevrolet Vega with black interior, while one described it as a small light green sports car with black interior and another described it as a two-door automobile with bucket seats and a dark interior. Finally, most of the complainants, according to the record testimony, were returned either to their homes or to the areas from which they had been abducted.


Appellant Warren argues that the prosecution's joinder of (1) the counts which charged appellant Davis, either by himself or with others never identified, for criminal assaults on three complainants in the same indictment with (2) all the counts charging Warren and Davis jointly with criminal assaults on four victims constitutes misjoinder under Super.Ct.Cr.R. 8(b), and accordingly requires reversal of his convictions. Assuming arguendo a proper joinder then appellant Warren contends that this joinder was prejudicial and the trial court committed reversible error in failing to grant his motion for relief from prejudicial joinder under Super.Ct.Cr.R. 14.7

Joinder of two or more defendants and multiple offenses in one indictment for trial is authorized by Rule 8(b)8 which provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.9 [Emphasis added.]

The issue we must decide is whether, within the meaning of Rule 8(b), Davis and Warren "are alleged to have participated . . . in the same series of acts or transactions constituting an offense or offenses."

In its brief, the government now characterizes the Davis-only offenses as "integral elements in a seven-month campaign of kidnappings and rapes waged in concert by both appellants" (Brief at 37; emphasis added) and claims that "appellants [Davis and Warren] acted in concert in a continuing series of related sex offenses" (Brief at 39; emphasis added). These statements on appeal in effect charge appellants with participating together in a conspiracy that was never alleged at trial and for which appellants were not indicted.10 Moreover, it is not correct to assert that the crimes charged were "in a seven-month campaign . . . waged in concert by both" since they were charged jointly only for crimes on four separate occasions in June, November and December, and Davis and others unidentified or Davis alone were charged with sex offenses on other occasions during this same period.11

Further, we must reject the government's contention that the similarity of modus operandi in each of the crimes charged against the appellants jointly, as well as Davis and others and Davis alone, fulfills Rule 8(b)'s requirement that both defendants be charged with having participated in "a series of acts or transactions" within the meaning of the Rule. Rule 8(a) allows joinder of offenses "of the same or similar character," but Rule 8(b) does not. See 8 J. Moore Federal Practice ¶ 8.06[1] (2d ed. 1975). The series of acts envisioned by the drafters of Rule 8(b) is one in which the individual offenses are connected or interrelated in such a manner that proof of charges against one defendant would necessarily have to be introduced in proving the jointly-charged offenses, or that the government otherwise will benefit without further prejudicing the defendant. See United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); King v. United...

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