Ellis v. United States

• Decision Date: 01 December 1978
• Docket Number: No. 11641.,No. 11558.,11558.,11641.
• Citation: 395 A.2d 404
• Parties: William J. ELLIS, Appellant, v. UNITED STATES, Appellee. Michael D. BARNES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

395 A.2d 404

William J. ELLIS, Appellant, v. UNITED STATES, Appellee.

Michael D. BARNES, Appellant, v. UNITED STATES, Appellee.

No. 11558.

No. 11641.

District of Columbia Court of Appeals.

Argued November 16, 1977.

Decided December 1, 1978.

Ladd B. Leavens, Public Defender Service, Washington, D.C., for appellant Ellis. Silas J. Wasserstrom, Public Defender Service, Washington, D.C., also entered an appearance.

Richard E. Galen, Washington, D.C., appointed by the court, for appellant Barnes.

Robert I. Richter, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, William D. Pease, and Jason D. Kogan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before KELLY, NEBEKER and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellants Ellis and Barnes were jointly tried before a jury and found guilty of the following offenses: Ellis was convicted of twc counts of first-degree murder while armed, D.C.Code 1973, §§ 22-2401, -3202; two counts of first-degree murder, id. § 22-2401; one count of felony murder, id., § 22-2401; one count of armed robbery, id., §§ 22-3201, -3202; one count of robbery, id., § 22-2901; one count of assault with intent to kill while armed, id., §§ 22-501,3202; one count of assault with intent to kill, id., § 22-501; one count of assault with a dangerous weapon, id., § 22-502, and one count of carrying a pistol without a license, id., § 22-3204. Barnes was found guilty of two counts of second-degree murder while armed, id., §§ 22-2403, -3202; two counts of second-degree murder, id., §§ 22-3201,3202; one count of armed robbery, id., §§ 22-3201, -3202; and one count of robbery, id., § 22-2901.

Appellants contend jointly that the trial court committed reversible error by: (1) refusing to sever their cases for trial, and (2) continuing to poll the jury after one juror dissented from a portion of the verdict as announced by the foreman. Appellants further contend that because the government introduced no evidence of a taking or asportation of anything of value, the evidence was legally insufficient to sustain their convictions for robbery, armed robbery, and, in the case of appellant Ellis, felony murder.

Additionally, appellant Barnes contends that the inconsistency of the jury's verdicts requires reversal of his convictions for second-degree murder while armed and second-degree murder, and that the evidence was insufficient to support his convictions on those counts. He also contends that the trial court failed to instruct the jury properly on the requisite element of malice with regard to the second-degree murder counts. Appellant Barnes further contends that the trial court's refusal to suppress testimony concerning his identification from a photo array was error because the identification resulted from the use of impermissibly suggestive procedures that created a likelihood of mistaken identification. He also asserts that should we find the evidence legally sufficient to sustain a conviction for armed robbery, that conviction nevertheless should be vacated because it merged with his conviction for felony murder. We disagree with all of these contentions and affirm the convictions with the exception of those which merge into more aggravated offenses.¹

I

At 9:50 p. m. on January 19, 1976, Jacqueline Brown returned to the apartment she shared with Clarence Green. Shortly before 10:30 p. m., she received a telephone call from appellant Barnes, whom she had known for about two months. While she was on the phone, Green accompanied by Gerald Brown, came into the apartment; she gave him the phone. Green thereafter told Jacqueline Brown that Barnes was coming over and that she should let him in. Both men then left the apartment.

Shortly before 11:00 p. m., Green and Gerald Brown returned to the apartment accompanied by appellants Barnes and Ellis. Ellis was introduced as "Buddy." Jacqueline Brown and Barnes engaged in a conversation while Ellis looked around the apartment. Suddenly, Ellis pointed a pistol at Green's head and said, "I heard about the thing you did in Hampton, Virginia." Green asked, "What?" Ellis then shot him. Ellis then fired at Jacqueline Brown, wounding her in the arm, as she ran toward the bedroom.

Jacqueline Brown, searching for a gun in the bedroom, heard more shooting and then threw herself against the door when she heard footsteps. Barnes and Ellis forced the door open, knocking her to the floor. Barnes came into the room first and rushed toward the dresser. Ellis stood over Jacqueline Brown and shot her twice, once in the leg and once in the stomach. She saw Ellis and Barnes ransack the dresser (Barnes removed some papers) and then overheard Ellis say, "Man, I thought it was supposed to be more stuff than this in this apartment." Barnes replied, "I've got to get the hell out of here." The two men left the bedroom, and fled the apartment.

After they left, Jacqueline Brown made her way into the living room, where she discovered the lifeless bodies of Green and Gerald Brown. As a result of her wounds, Jacqueline Brown was hospitalized until early February.

A police investigation of the scene revealed that Green's pockets were empty except for one which contained marijuana. Gerald Brown's rear pocket had been pulled out. Several coins were located near the bodies. A small tinfoil package containing marijuana was found on the floor several feet from Green's body. Brown's wallet was in the pocket of his coat, which was on the couch.

The morning after the homicides, Barnes left for Ohio. Sixteen days later, on February 5, he returned to the District of Columbia and surrendered to the police. He identified Ellis as the man responsible for the shootings. Ellis was arrested on February 7. He gave a statement to the police claiming that on January 19, in the late afternoon and early evening, he had attended a wake for his uncle, returned to his apartment, and then proceeded to a downtown nightclub.

Testimony introduced by Ellis at trial indicated that he had attended the wake and returned to his apartment (which he shared with his cousin and his cousin's girlfriend) sometime between 10:30 and 11:00 p. m. Neither the cousin nor his girlfriend knew if Ellis left the apartment after 11:00 p. m., but they testified that he was there when they awakened the next morning.

Barnes testified that on the morning of January 19 he sought unsuccessfully to reach Ellis to ask to borrow his car. That evening, Barnes telephoned Green expressing his desire to purchase some marijuana for an upcoming trip to Ohio. Around 11:15 p. m., Caroline Brooks (Barnes' sister) told Barnes that Ellis was downstairs and wanted to see him. Ellis was accompanied by Green and Gerald Brown; all three men were in Green's car. Barnes traveled with them to Green's apartment where he was to purchase some marijuana. All four men smoked marijuana on the way to Green's apartment.

Barnes went on to testify that when the shooting started he shouted at Ellis to stop. He claimed that he rifled through the dresser in an effort to distract Ellis from noticing that Jacqueline Brown was still alive. Attempting to placate Ellis, he suggested there might be some money in the apartment. To his knowledge, he testified, nothing was removed from the apartment.

II

We first address appellants' assertion that the jury was improperly polled. After the foreman announced the jury's verdicts, counsel for Ellis moved for a separate count-by-count poll of the jurors for each defendant. The trial court, however, merely repeated the verdicts and asked the jurors seriatim if they agreed with them. The first nine jurors responded affirmatively, but the tenth expressed disagreement. The judge routinely polled juror number ten separately as to each count and each defendant. It thus was discovered that the juror disagreed with the guilty verdict on the count charging Barnes with assaulting Jacqueline Brown with a dangerous weapon. The court then polled jurors 11 and 12 as to the overall verdicts. After completing the poll, the trial court directed the jury to resume deliberations on the next morning on the count with respect to which there was disagreement. Before the jury could retire, however, the government moved to dismiss the disputed count against Barnes. That motion was granted, eliminating the need for an further deliberations.

We have stated that "after a juror's dissent is clearly registered, further polling is unnecessary and, in the absence of a contrary request by defense counsel, is error." In re Pearson, D.C.App., 262 A.2d 337, 340 (1970). We condemn continued polling because it "serves no salutary purpose while at the same time it discloses in open court the jury's numerical division and consequently subjects the dissenting juror or jurors to unnecessary coercion." Kendall v. United States, D.C.App., 349 A.2d 464, 466 (1975). We have, however, recognized that any jury poll where there is disagreement involves some degree of coercion, and the practical dictates of effective judicial administration require that we overturn a conviction only when "the inevitable effect [of continued polling] was to pressure the [dissenting] juror to conform her vote to that of the majority." Kendall v. United States, supra, at 466. See also Jackson v. United States, D.C.App., 377 A.2d 1151 (1977). It is settled that even in the potential minefield of a jury poll, the trial court enjoys an appreciable measure of discretion. See United States v. Brooks, 137 U.S.App. D.C. 147, 150, 420 F.2d 1350, 1353 (1969); Williams v. United States, 136 U.S.App.D.C. 158, 164, 419 F.2d 740, 746 (1969) (en banc). Reversal is warranted only when the trial court abuses its discretion by conducting itself in a manner that infringes upon the exercise of the jurors' free will.

We are satisfied that the polling procedure utilized in this case, while not conducted in strict compliance with the...