Gooch v. US, 89-CF-281 and 90-CF-845.

• Decision Date: 12 May 1992
• Docket Number: No. 89-CF-281 and 90-CF-845.,89-CF-281 and 90-CF-845.
• Citation: 609 A.2d 259
• Parties: Larry GOOCH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

609 A.2d 259

Larry GOOCH, Appellant, v. UNITED STATES, Appellee.

Nos. 89-CF-281 and 90-CF-845.

District of Columbia Court of Appeals.

Argued March 6, 1991.

Decided May 12, 1992.

Lesley Zork, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Philip S. Kushner, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Thomas J. Tourish, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Before TERRY and WAGNER, Associate Judges, and PRYOR, Senior Judge.

WAGNER, Associate Judge:

Appellant was convicted of one count of armed robbery, D.C.Code §§ 22-2901, -3202 (1989), one count of robbery, D.C.Code § 22-2901 (1989), and one count of unauthorized use of a motor vehicle (UUV), D.C.Code § 22-3815 (1989).¹ After sentencing, appellant filed a motion to vacate sentence and set aside the judgments of conviction pursuant to D.C.Code § 23-110 (1989). The trial court denied the motion without a hearing. Before the court are appellant's consolidated appeals from the judgments of conviction and the denial of the section 23-110 motion. Appellant argues for reversal on the grounds that: (1) the UUV count was improperly joined with the robbery charges under Super.Ct.Crim.R. 8(a); (2) the two robbery charges should have been severed pursuant to Super.Ct.Crim.R. 14; and (3) he was denied effective assistance of counsel in that trial counsel failed to move for relief from misjoinder and to suppress out-of-court identifications. We affirm.

I.

The events which resulted in appellant's convictions occurred in January 1987. On January 8, 1987, appellant spent the night with a longtime friend, Wendell Parker, whom he had not seen for about six months. Parker was keeping his mother's car while she was in Florida. The keys to the vehicle were on a table when Parker went to bed that night. At about 6:00 a.m. Parker went through appellant's pants pocket and saw a key which looked like the one to his mother's car. To keep appellant from detecting that he had been "snooping," Parker left the key where he found it and did not question appellant about it. When appellant left later, he took the car without Parker's permission, and Parker reported the car stolen.

On January 12, 1987, at about 6:00 p.m., Olivia Smith was waiting in her car for her daughter and grandchild in front of 422 Fourth Street, N.E., when she noticed a man standing on the corner who appeared to be looking for someone. Ms. Smith got out of the car to put her purse in the trunk. Suddenly the man crossed the street and asked if she needed help. Ms. Smith ran toward the house and yelled for help, but she tripped and fell. The man grabbed her purse and ran. Ms. Smith described her assailant to the police as a young man between the ages of sixteen and twenty, about "her complexion," five feet six or seven inches tall. She also told the police that the man was wearing a dark military jacket with its hood pulled up, over a light or white knitted cap which partially covered his face.

While the robbery was occurring, Peter Hayes was in a nearby alley and heard Ms. Smith screaming. He saw a black man wearing an army jacket running up the alley towards him. The two came face to face, and appellant threatened to kill Mr. Hayes if he came after him. Mr. Hayes testified that he saw an object in the man's hand which appeared to be a purse. Mr. Hayes did not pursue the man, but he went to see if Ms. Smith needed help. Mr. Hayes picked appellant's photograph from a photo array of ten to twelve people and identified him as the man in the alley that night.²

About 7:00 p.m. that same evening, in the area of Corcoran Street and Mt. Olivet Road, N.E., Patricia Irvin was robbed of her purse by a man with a screwdriver-like weapon. The robber placed the weapon at her back and demanded and took her purse. Afterwards, the robber moved in front of Ms. Irvin and went through her pockets during which time she was able to see the man's face and the weapon. Ms. Irvin was not too far from a lamp post at the time. She testified that she "got a pretty good picture in her head about who he was." Later, Ms. Irvin described her assailant as wearing a knit hat, pulled over his eyebrows and a military coat with the collar turned up.

A police officer testified that following the robbery, Ms. Irvin stated that she might have difficulty identifying the man who robbed her because he kept his head down partially; however, the officer also testified that she said she might be able to identify him. Ms. Irvin did identify appellant as the robber, selecting his picture from a photo array of six or eight men. This complainant said that the detective simply placed the photos on a table and asked her if she recognized anyone. She testified that she recognized the man who had taken her purse and that she selected appellant's picture from the photo array. Subsequently, Ms. Irvin attended a lineup in which appellant appeared, but she pointed out another man that she recognized from some other situation. Ms. Irvin explained that she was slightly nervous during the lineup and that she felt rushed. Later, she informed a detective that the person she pointed out in the lineup was not her assailant. Subsequently, she was shown a photograph of the lineup, and she identified appellant as the person who robbed her. Ms. Irvin testified that no one told her whom to select and that she was certain of the identification.

Appellant was arrested shortly after midnight on January 13, 1987 in possession of the stolen vehicle. The handbags taken in the Smith and Irvin robberies were found in the trunk of that car.

Prior to trial, appellant's counsel filed a motion to sever the robbery counts pursuant to Super.Ct.Crim.R. 14. The government conceded the motion as to one armed robbery count involving an offense which occurred on November 7, 1986. The trial court denied the motion with respect to the remaining charges. Appellant filed a posttrial motion pursuant to D.C.Code § 23-110 alleging ineffective assistance of counsel based on trial counsel's failure: (1) to seek relief from misjoinder of the UUV and the robbery charges under Super Ct.Crim.R. 8(a); (2) to argue properly the factors requiring severance of the robbery counts; and (3) to move for suppression of the out-of-court identifications. The trial court denied the motion without a hearing, concluding as to the severance issues that it would have been impossible for trial counsel to prevent the government from attempting to prove the identify of the robber without also proving his theft of the automobile and the recovery of the stolen purses from the vehicle's trunk. The court also ruled that there was no basis for suppressing the out-of-court identifications because the record reflected no undue suggestivity. Therefore, the court found no prejudice in counsel's decision not to file the motions because there was no adequate support for them.

II.

Appellant argues that the trial court erred in failing to sever the UUV from the robbery counts, which he contends were improperly joined under Super.Ct.Crim.R. 8(a), when it considered appellant's motion for severance filed under Super.Ct.Crim.R. 14.³ We disagree. Super.Ct.Crim.R. 8(a) allows two or more offenses involving one defendant to be joined where the offenses are "(1) of the same or similar character; (2) are based on the same act or transaction; or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Roper v. United States, 564 A.2d 726, 729 (D.C.1989).

Appellant argues first that the UUV and the robbery charges do not meet the "same or similar character" requirement of Rule 8(a) because there is no "substantial degree of similarity among the crimes charged." See id. at 729. Offenses meet this criteria where the counts of the indictment "allege the same general kinds of crimes." Winestock supra note 3, 429 A.2d at 524. However, courts have generally permitted joinder under the "same or similar" provision only where substantial similarity exists among the offenses. Roper, supra, 564 A.2d at 729. This "substantial similarity" determination may be made by examining the elements of the offenses charged. See id. at 729-30; see also Winestock, supra note 3, 429 A.2d at 524-25. An analysis of the elements of UUV and robbery shows that the requisite degree of similarity exists between them for joinder under Rule 8(a).⁴

The crimes of robbery and UUV are crimes against the owner's right of possession. We have held that larceny is a necessarily included offense of robbery, Dublin v. United States, 388 A.2d 461, 463 (D.C. 1978), and that no significant difference emerges from a comparison of the crime of UUV to larceny. Arnold v. United States, 467 A.2d 136, 139 (D.C.1983). Indeed, under the former grand larceny statute (D.C.Code § 22-2201 (1981)), the taking of property without the owner's consent with the intent to appropriate it to a use inconsistent to sustain a conviction of both UUV and grand larceny. Fredericks v. United States, 306 A.2d 268, 270 (D.C.1973). While robbery requires proof of some elements which UUV and larceny do not, the common elements of the offenses allow the three offenses to be charged for the same conduct. If appellant had seized the vehicle from the immediate possession of the owner, it is beyond dispute that the offense of UUV and robbery could have been charged properly. The commonality of the elements permits both offenses to be proved by the same conduct. This similarity supports the conclusion that the offenses are at least of similar character within the meaning of Rule 8(a). The additional elements which distinguish robbery from UUV do not undercut the degree of their similarity. Thus, we conclude that the offenses are properly jointed under the liberal interpretation of Rule 8(a) which favors joinder. See Ray, supra note 3, 472 A.2d at...