Hanna v. US

• Decision Date: 12 October 1995
• Docket Number: No. 92-CF-133,92-CF-250 and 94-CO-634.,92-CF-133
• Citation: 666 A.2d 845
• Parties: Gerald A. HANNA, Appellant, v. UNITED STATES, Appellee. Lamark SIMMONS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

666 A.2d 845

Gerald A. HANNA, Appellant, v. UNITED STATES, Appellee.

Lamark SIMMONS, Appellant, v. UNITED STATES, Appellee.

Nos. 92-CF-133, 92-CF-250 and 94-CO-634.

District of Columbia Court of Appeals.

Argued September 14, 1995.

Decided October 12, 1995.

Noel F. Danto, Rockville, MD, appointed by the court, for appellant Hanna. Stephen O. Russell, Oxon Hill, MD, filed a brief for appellant Hanna.

Thomas G. Ross, Riverdale, MD, appointed by the court, for appellant Simmons.

Paul A. Quander, Assistant United States Attorney, with whom Eric H. Holder Jr., United States Attorney, and John R. Fisher, Thomas C. Black and Randall D. Eliason, Assistant United States Attorneys, were on the brief, for appellee.^*

Before FERREN, FARRELL, and KING, Associate Judges.

FERREN, Associate Judge:

Appellants were each convicted of twenty criminal charges arising out of the June 4, 1991 robbery of an apartment building at 228 N Street, N.W., in which residents of the building were held captive and terrorized.¹ Appellants were sentenced to a total of 21 to 63 years in prison.

This appeal presents primarily the question whether particular convictions merge under the principles announced by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and by this court in Byrd v. United States, 598 A.2d 386 (D.C.1991) (en banc). Appellants contend that all their convictions merge into one count of first degree burglary and one count of possession of a firearm during a crime of violence and that they may be sentenced accordingly on those two counts only. We conclude that (1) Counts F and G merge into one count of first degree burglary; (2) Counts M and N merge into one count of first degree burglary; and (3) Counts O, P, R, and S merge into one count of assault with a dangerous weapon. We reject all of appellants' other merger arguments. Further, we conclude that the trial court erred in ruling that the sentence enhancement provisions of D.C.Code § 22-3202 (1989 Repl.) did not apply to the convictions for crimes of violence (Counts D, E, H, I, J, K, O, Q, T).

Appellants also maintain there is insufficient evidence to support their convictions. To the contrary, we conclude that the government introduced sufficient evidence at trial for a reasonable juror to have found appellants guilty beyond a reasonable doubt on each charge.

We remand the case to the trial court for resentencing in accordance with this opinion.²

I.

The government presented the following evidence at trial. At approximately 10:30 p.m. on June 4, 1991, a group of five to seven men approached Alfredo Sarinana and Michael Leslie as they sat on the steps of the apartment building at 228 N Street, N.W. The men pulled out machine guns and told Sarinana and Leslie not to move. Two of the men then grabbed Sarinana and Leslie, took them inside the building, placed them against a wall, made them empty their pockets, and questioned them about drugs, money, and someone named "Miami." The two men then walked Sarinana and Leslie at gunpoint to apartment 201 where Sarinana and Leslie lived.

Four or five armed men entered apartment 201 behind Sarinana and Leslie. The armed men ran over to a man, who was in the apartment watching television, Jeff Burko, "stuck a gun in his face and started asking him where the drugs were and where the money was." As they searched the apartment, one of the gunmen, later identified as former co-appellant Wray, threatened to assault Leslie in order to force him to remember where the drugs and money were located. One of the robbers also suggested that they shoot Sarinana and Leslie.

At this time, Patrick Nutt, June Rose Watson, and an individual named "Tony" returned from a trip to Chinatown. As they passed apartment 201, Nutt saw someone coming out of the apartment and asked, "Who is that?" One of the robbers responded, "I'm a friend of Jeff's." Several of the intruders, including Hanna, Simmons, and Wray, followed Nutt, Watson, and Tony up the stairs. The robbers held Nutt and Watson at gunpoint with a machine gun while they attempted to kick in the door to apartment 302. They questioned Watson and Nutt about the individual known as "Miami" and about drugs and money. Appellant Hanna removed a gold rope chain from Nutt's neck.

Several of the gunmen then took Nutt downstairs at gunpoint and sat him down in front of apartment 201. At this time Diana Kirkland, who lived in apartment 203, and her sister, Rosslyn Kirkland, heard some banging at the front of the building and went to investigate. On the way they saw appellant Simmons standing in front of the door to apartment 201, a second man with a gun in his pocket, and Nutt sitting by the radiator with his hands in the air. Nutt told the Kirkland sisters to go back inside Diana Kirkland's apartment, which they did.

Soon thereafter, all of the gunmen went outside and around to the back of the building, apparently looking for a way to enter apartment 302. Darryl Ayres, an occupant of apartment 302, and Diana Kirkland heard several men on the fire escape saying that they could not get inside the building because of the bars on the windows. Diana Kirkland ran to apartment 303 to call the police. One of the robbers then returned to the front of the building and tried, unsuccessfully, to open the gate which Nutt had locked while the robbers were on the fire escape. A few moments later the gunmen left and the police arrived.

Nutt, Sarinana, Leslie, and Diana Kirkland told the police what had happened, and the police had they would look into it. After the police had left, Nutt, Sarinana, and Leslie went to Nutt's apartment, 402. Diana Kirkland was afraid to go to her apartment, so she went to apartment 302.

At approximately 11:20 p.m. on the same night, Nellie Floyd, Darryl Ayres, June Rose Watson, Rosslyn Kirkland, Diana Kirkland and her child, and a man named "Keith" were in apartment 302 discussing the events that had just taken place. Ayres decided to block the door of the apartment with a bed, table, and chair. About five minutes later someone began to kick at the door. The door opened a little and someone said "open the door," sticking a gun through the crack in the door. Ayres opened the door and approximately four men entered the apartment swinging guns in the air. The intruders began to ask about drugs, money, and "Miami." Wray pointed a gun in Floyd's face, and asked her where the drugs and money were. Ayres and some of the other occupants attempted to explain to the gunmen that there were no drugs or money in the apartment, but Wray told him to shut up. Appellant Simmons hit Ayres in the face.

Nutt, who was upstairs in apartment 402, heard the commotion and went down to 302 to investigate. Leslie and Sarinana, who were also in 402, called the police. When Nutt knocked on the door of 302 Wray grabbed him, threw him on the floor, and stuck a gun in his mouth. The intruders searched apartment 302, and found a plastic bag containing a white powder substance in a container in the kitchen. After finding the bag, they began kicking and stomping Nutt in the head. Watson told the intruders that the bag contained powdered milk, but they continued to search the apartment.

One of the intruders then told the occupants of apartment 302 that if no one told him where the drugs and money were he would start killing people. Nutt took approximately $180.00 out of his pocket, and Wray took it from him. The intruders then ran out of the apartment and up the stairs as the police arrived.

Officer John Coursey testified that when he arrived on the scene at approximately 11:30 p.m., he heard a loud noise in the back of the building and went to investigate. Coursey observed a person standing on the fire escape and instructed him to come down. The individual went through a window into one of the apartments. Coursey then entered the building to search for him.

Detective Thomas Gallogly testified that on June 4, 1991, he responded to a call for assistance at a robbery in progress at 228 N Street, N.W. When Gallogly arrived, police officers were surrounding the building; he was advised that between one and six armed men were inside. The police secured the building and requested assistance from the Special Operations Division Emergency Response Team.

The Emergency Response Team arrived and began to conduct a methodical search of the building in order to evacuate any remaining occupants and to locate the intruders. Approximately three hours after the search began, appellant Hanna and former co-appellant Wray were discovered in the closet of a vacant fourth floor apartment. Nutt, Sarinana, and Ayres identified appellant Hanna at separate show-up identifications soon after Hanna was discovered inside the building. Specifically, Nutt identified Hanna as the individual who "took my stuff off me." Sarinana identified appellant Hanna as "the one who took the stuff off of Nutt. He was going through Nutt's pockets." Ayres also identified Hanna as one of the gunmen. Detective Larry Payne removed from Hanna's neck a gold chain which Nutt identified as the chain that Hanna had taken off his neck during the first incident.

Sergeant Henry Rorie and Officer Kevin Pope of the Metropolitan Police Department described their discovery of Hanna and Wray in a closet in a fourth floor apartment. Pope identified Hanna and Wray in court as the two suspects that he had discovered in the closet. An Intratech-22 gun was discovered on top of the kitchen cabinet in the same apartment. Sergeant Dennis McKinney discovered a .45 caliber semi-automatic handgun approximately 15 feet from the back of the building. A small semi-automatic handgun was discovered in the yard of a nearby building.

Detective Payne testified that he was familiar with appellants Hanna and Simmons and former co-appellant Wray because he had worked in their neighborhood for many years. Payne further testified that during...