Green v. US

• Decision Date: 03 September 1998
• Docket Number: No. 94-CF-97 & 94-CF-535,94-CF-97 & 94-CF-535
• Citation: 718 A.2d 1042
• Parties: DeAngelo A. GREEN and Thomas B. Landon, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

718 A.2d 1042

DeAngelo A. GREEN and Thomas B. Landon, Appellants, v. UNITED STATES, Appellee.

Nos. 94-CF-97 & 94-CF-535

District of Columbia Court of Appeals.

Argued March 12, 1998.

Decided September 3, 1998.

Jaclyn S. Frankfurt, Public Defender Service, with whom James Klein and Ira Mickenberg, Public Defender Service, were on the brief, for appellant Green.

Judith A. Lovelace, appointed by the court, for appellant Landon.

Helen M. Bollwerk, Assistant United States Attorney, with whom Mary Lou Leary, United States Attorney at the time the brief was filed, and John R. Fisher, Mary Patrice Brown and Lisa A. Prager, Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN and FARRELL, Associate Judges, and PRYOR, Senior Judge.

STEADMAN, Associate Judge:

DeAngelo "Man" Green and Thomas "Bernard" Landon, together with a third individual who was tried separately,¹ plotted and carried out on the night of April 10, 1991, a plan to rob and kill a local drug dealer and, in the process, seriously wounded the drug dealer's associate. Their first trial resulted in a mistrial when the jury was unable to reach a verdict. On retrial, each appellant was convicted of first-degree premeditated murder while armed and thirteen other counts.²

Both appellants forcefully argue that the trial court erred in excluding expert testimony about the reliability (or lack thereof) of eyewitness identifications. Appellant Green further contends that the trial court erred in admitting evidence of an eyewitness's pretrial identification from a photo array where the witness could not say which of two photos (picked from an array of ten photos) was Green. Appellant Landon further contends that the trial court gave an erroneous jury instruction on the elements of conspiracy.³ We find no basis for reversal in any of the appellants' contentions. We remand solely for the purpose of allowing the trial court to vacate certain merging convictions and resentence accordingly.

I. THE FACTS.

The facts, as the jury could reasonably have found them, are somewhat complex and involve a number of individuals. We therefore break down the following statement of facts into smaller, roughly chronological units for greater ease of reference.

A. The Conspiracy.

In late March or early April of 1991, appellants were overheard discussing Green's plan to rob and kill a drug dealer, Juan McWeay. Anna Rose overheard such a conversation in the living room of her apartment, which was located in the same building as an apartment shared by Landon's cousin, named John McNeil, and Green's cousin. As Rose recalled, Green explained to Landon that they should order cocaine from McWeay and then rob him when he tried to deliver the drugs. Rose noticed two guns on her kitchen table and asked about them. Green explained that one was a "9 millimeter, and the other one was a 357," and that he intended "to use the 9 millimeter to kill McWeay because that had more power." Green added that "if the white boy was with him, he had to be killed too." Landon expressed his agreement with the plan by saying, "Yes, Man, that's the way to do it. We can do it that way."

A few days later, the appellants returned to Rose's living room with Grant Moctar to continue their discussion. As they talked, Rose recalled, McNeil knocked on her door to tell Green that McWeay was waiting downstairs. Green then left the apartment. Through her window, Rose saw him confer with McWeay near McWeay's white Corvette. Green returned to the apartment and announced that McWeay agreed to "score him an eighth of cocaine." Landon replied, "That's good. At least we'll be able to get to him." Green suggested that they conceal their faces with black masks when they robbed McWeay, and both Landon and Moctar agreed. They would have to be prepared to kill McWeay during the robbery, Green reminded the others, to which Landon replied, "Yeah, Man, that's the way it has to go." Two other witnesses, Donald Barkley⁴ and Ronald Pinkney, heard Green explain his plan to Landon on other occasions, but they did not hear Landon say anything in response.

B. The Robbery and Kidnapping of Juan McWeay.

On the night of April 10, 1991, Moctar enlisted a sixteen-year-old friend, Rodney Givens, to drive Moctar and the appellants from a gas station in Montgomery County, Maryland, to the District of Columbia. Moctar and the appellants offered to pay for gasoline in exchange for the ride. The appellants rode in the back seat of Givens's beige Oldsmobile and directed him to another gas station at the corner of Sherman Avenue and Harvard Street, N.W. Givens and Moctar stayed in the car while the appellants stepped out for a few minutes.

Meanwhile, Barkley drove his mint green 1991 Chevrolet Blazer north on Sherman Avenue toward Harvard Street. Barkley heard someone call out his name and saw Landon hail him from the curb. Barkley pulled over near the gas station at the corner of Sherman and Harvard, and both appellants approached the Blazer. Barkley asked Landon for some cocaine. Landon replied that he did not have any, but that he expected to get some soon. Landon elaborated that he and Green "were waiting for Juan and ... were going to rob him." Landon also invited Barkley to stay and "watch my work." If Barkley would agree to "wait and drop them at home," Landon promised, then "they would give him some cocaine." Barkley agreed and parked on the opposite side of Sherman Avenue, where he waited with his passenger, Robert Brown. The appellants returned to the back seat of Givens's Oldsmobile.

Within ten minutes, McWeay's Corvette pulled into the gas station. McWeay rode in the passenger seat, and Ralph Cherrico drove. Cherrico, who is white, appears to have been the "white boy" Green expected to accompany McWeay. The appellants and Moctar again got out of the Oldsmobile, walked toward the Corvette, and removed McWeay. There was a brief scuffle outside the Corvette. At some point, Green ran to Barkley's Blazer, displayed a nine-millimeter handgun, and demanded the vehicle. Barkley and Brown surrendered the Blazer and Green drove it into the gas station. Green hopped out of the Blazer, forced McWeay into Givens's Oldsmobile, got into the car himself, pointed a gun at Givens, and ordered him to drive off. Givens heard McWeay plead, "Don't kill me," as Givens drove back into Montgomery County, Maryland. Green told Givens to stop at a location near Landon's apartment. Once there, Green took McWeay out of the car and told Givens to leave.

C. The Kidnapping of Cherrico and the Burglary of His Apartment.

Back at the gas station, Moctar had climbed into the passenger seat of the Corvette, displayed a gun, and demanded drugs or money from Cherrico. Cherrico said that he had neither, and Moctar ordered him to drive off. As Cherrico pulled out of the gas station, he was passed by the beige Oldsmobile carrying McWeay in the back seat. Cherrico also saw a Blazer following him in the rear view mirror; Barkley confirmed that someone driving his Blazer followed the Corvette out of the station.

Cherrico drove to his own apartment near 9th and M Streets, N.W., because he kept cash there with which he hoped to pay off Moctar. The Blazer parked behind Cherrico, and, although Cherrico testified that he never got a good look at the driver, he described the driver as a dark-skinned black man who followed him and Moctar upstairs to the apartment. Moctar hid his gun in his jacket as they passed the building's security guard. All three men entered Cherrico's apartment, and Moctar again demanded drugs or money. Cherrico gave Moctar $850 cash. Moctar continued to demand more money or drugs and threatened to kill Cherrico. Meanwhile, the driver of the Blazer went from room to room, apparently looking for loot. Moctar and the driver of the Blazer then escorted Cherrico out of the apartment and back into the Corvette. When they left, Cherrico noticed that the apartment was in its normal condition.

D. The Mayhem and AWIKWA.

Moctar ordered Cherrico to drive into an alley and, once again, they were followed by the Blazer. When both vehicles reached the alley, Moctar got out of the Corvette and ordered Cherrico to get out, too. The driver of the Blazer also had stepped out of his vehicle and into the alley and approached Cherrico. At around 12:45 a.m. on April 11, 1991, Moctar shot Cherrico in the head. A police officer in the vicinity of 14th and Newton Streets, N.W., heard the shot and promptly responded to a radio run for a shooting in the alley behind the 1300 block of Kenyon Street, N.W. He entered the alley and found Cherrico bleeding from a gunshot wound to the head. The officer followed a trail of blood from Cherrico to a .380 caliber shell casing.

Cherrico survived the shooting, but all four of his limbs were affected by paralysis and he has trouble speaking and reasoning. Within two years he was able to walk again, albeit with a limp, but he lost the ability to perform basic arithmetic and, although he was right-handed before the shooting, he could no longer write with that hand. At trial, a doctor testified that Cherrico would never regain the full use of his arms and legs and that he would always have difficulty speaking and performing cognitive functions.

E. Interlude.

At approximately 1:00 a.m. on April 11, a neighbor heard banging at the door to Cherrico's apartment. The neighbor looked through his peep hole and saw three black men in the process of entering the apartment. The neighbor was certain that Cherrico was not among the men. Police investigators later took photographs of the apartment showing that it had been ransacked, including a couch. According to Cherrico, McWeay had stashed a package of cocaine in that couch a few days earlier. Cherrico later testified that he had not told his captors about the stash when they first demanded drugs or money because he was so frightened that he forgot about it.

F. The Death...