INGRAM v. U.S., 88-1345

• Decision Date: 21 June 1991
• Docket Number: No. 88-1345,88-1345
• Citation: 592 A.2d 992
• Parties: Terrence L. INGRAM, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

592 A.2d 992

Terrence L. INGRAM, Appellant, v. UNITED STATES, Appellee.

No. 88-1345.

District of Columbia Court of Appeals.

Argued January 22, 1991.

Decided June 5, 1991.

As Amended June 21, 1991.

Appeal from the Superior Court, District of Columbia, Reggie B. Walton, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Allen W. Levy, Public Defender Service, with whom James Klein and Page Kennedy, Public Defender Service, were on the brief, Washington, D.C., for appellant.

Elizabeth H. Danello, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Jr., and David Schertler, Asst. U.S. Attys., were on the brief, Washington, D.C., for appellee.

Before ROGERS, Chief Judge, FERREN, Associate Judge, and BELSON, Associate Judge, Retired. ^*.

Judge Belson was an Associate Judge of the court at the time of argument. His status changed to Associate Judge, Retired, on June 1, 1991.

FERREN, Associate Judge:

An indictment jointly charged appellant Ingram and codefendant Morgan with offenses attributable to the armed robbery of a Georgetown video arcade on May 9, 1988. After a jury trial in August 1989, appellant was convicted of armed robbery, D.C.Code §§ 22-2901, -3202 (1989), and was sentenced to prison for fifteen years to life. On appeal, he argues (1) the trial judge committed reversible error in failing to sever the defendants' trials because their defenses were irreconcilable and there was a danger the jury would unjustifiably infer from this conflict alone that appellant was guilty; (2) the jury instructions on armed robbery improperly permitted conviction for aiding and abetting the armed offense even if the jury believed appellant was only aware of an unarmed robbery; and (3) appellant's constitutional right to a grand jury indictment was violated when the government altered its theory of aiding and abetting after both sides had rested. Finding no error, we affirm.

I.

According to the government's evidence, shortly after 10:00 a.m. on Monday, May 9, 1988, an armed man, later identified as Morgan, entered the back office of a video arcade moments before a Brinks armored truck was scheduled to collect the weekend proceeds. He asked, "Where is the money at?," and struck the manager four times on the head with a gun, drawing blood, before taking $4,500 in presorted bills. As Morgan was leaving, a customer gave chase and saw him get into the passenger side of a Volkswagen with Maryland tag "SES 299." Morgan was carrying a blue athletic bag. Another black male was driving the car.

Police investigation led two Metropolitan Police Department detectives to the golf course where Morgan, the owner of the Volkswagen bearing Maryland tag "SES 299," was employed. Morgan had punched into work at 10:32 a.m., about four hours later than normal and about 20 minutes after the robbery. Morgan told the detectives that he had received a ride to work from a friend, Thomas Clark. Morgan was arrested.

As the detectives were driving Morgan to the police station around 3 p.m., they noticed a Volkswagen with Maryland tag "SES 299" approaching from the opposite direction. On seeing the car, Morgan lunged toward the window. The detectives (in an unmarked car) turned around, followed the Volkswagen to a nearby 7-11 store, and watched as appellant Ingram emerged from the driver's side.

As the police walked past the car, they noticed an empty pistol holster containing six bullets partially visible on the car floor. Appellant was immediately arrested and searched. The search revealed a badge identifying appellant as an employee of the video arcade robbed that morning. A search of the car's trunk produced a zipped blue cloth bag containing a loaded revolver and $700 in cash. The revolver — which had blood on it later found consistent with the blood type of the arcade's manager — was later identified as the robbery weapon. The money was identified as some of the money stolen from the arcade that morning. On the passenger seat underneath appellant's jacket was a deposit slip showing that appellant had deposited $1,700 in his credit union that day at 12:32 p.m. The money, some of which was retrieved from the credit union, was identified as proceeds from the robbery. The teller testified that appellant had deposited a packet containing 50 twenty dollar bills wrapped in a blue wrapper and 700 one dollar bills wrapped in yellow straps of one hundred bills apiece.

Thomas Clark, whom Morgan had implicated in the crime, testified as a government witness. He admitted he was a friend of Morgan and knew appellant, admitted he knew Morgan had named him as the person who had driven him to work on May 9th, and admitted to being on parole until 1998. Clark testified, however, that he had been at home the morning of May 9th and had neither seen the codefendants nor driven Morgan's car that morning. Clark was impeached with a 1983 conviction for armed robbery. Clark's father supported his son's alibi.

Appellant testified and also denied any involvement in the robbery, explaining he had innocently driven the getaway car and had unknowingly come into possession of the robbery proceeds. He testified that he had stayed with his brother at his mother's home the morning of May 9th until Thomas Clark arrived to drop off Morgan's car at approximately 11:30 a.m. According to appellant, after Clark had driven Morgan to work, Clark drove to appellant's mother's home, where he handed appellant an envelope containing $1,700 (50 twenty dollar bills and 700 ones in wrappers), and said: "This is from Bobby [Morgan]." Appellant further testified that he was not surprised to see so much money in small denominations because he "had often seen Bobby with a lot of money in small bills" and the wrappers "were just regular money wrappers." Appellant then drove Clark in Morgan's car to the subway, drove to the credit union to meet his sister and to deposit the money, and drove to an auto parts shop to purchase parts for his own car.

Appellant explained he had approached Morgan, one of his best friends, for a loan in March and again in April to help him attend carpentry school in July because Morgan always had "a lot of money." Also, because his car was in the repair shop, appellant had asked Morgan if he could borrow Morgan's car to pick up repair parts. On the night before the robbery, Morgan phoned appellant while appellant was working at the arcade. He told appellant that he had the money ready for him and that appellant could borrow his car the next morning. Morgan promised to bring his car over as soon as he had taken his wife to the hospital on Monday morning. Although appellant admitted telling Morgan about his job at the arcade, he denied telling Morgan any specifics about where the money was kept or when thearmored car came to pick up deposits. Appellant was impeached by 1984 and 1985 convictions for theft, a 1984 conviction for malicious destruction of property, and a 1985 conviction for storehouse breaking and entering. Appellant's brother and sister, as well as an employee at the auto repair shop, testified in support of appellant's alibi defense. Appellant's defense was further corroborated when a detective found auto parts inside the Volkswagen's trunk when appellant was arrested.

Codefendant Morgan also testified. He denied any involvement in the robbery, denied lending appellant any money, denied discussing appellant's job with him, and denied sending Clark to appellant's mother's home with Morgan's car on the morning of the robbery. He argued misidentification and testified that the night before the robbery he had left his car at a subway station so that appellant could use it to pick up some auto parts. Morgan claimed Thomas Clark had driven him home from the subway in Morgan's second car. Morgan also explained that he had been late to work on Monday because he had had to take his wife to a hospital clinic (there were no records introduced in evidence showing that he or his wife had signed in), and that Clark had given him a ride to work that morning in Morgan's second car. Morgan admitted on direct examination that he had been convicted of armed robbery in 1982.

In closing argument, appellant's attorney argued that Morgan had robbed the arcade with Clark as the getaway driver and that Clark had taken a $2,000 cut while Morgan took a $2,500 share and gave $1,700 of it to appellant as a loan.

II.

Appellant contends the trial court erred in denying his motions for severance based on the defendants' conflicting and irreconcilable defenses. Because appellant moved to sever before trial and three times during trial, we review for abuse of discretion. See Garris v. United States, 559 A.2d 323, 329 (D.C. 1989).

When two defendants are charged with jointly committing a criminal offense, there is a strong presumption that they will be tried together. See Super.Ct.Crim.R. 8(b);¹ Tillman v. United States, 519 A.2d 166, 169 (D.C. 1986). To avoid prejudice, however, properly joined defendants may request a severance at any time under Super.Ct.Crim.R. 14.² Ready v. United States, 445 A.2d 982, 985-86 (D.C. 1982), cert. denied, 460 U.S. 1025, 103 S.Ct. 1279, 75 L.Ed.2d 498 (1983).

Unfair prejudice does not arise merely because defendants are mutually hostile and attempt to blame each other. See Sweet v. United States, 438 A.2d 447, 451 (D.C. 1981). Rather, severance is required only when a defendant shows that (1) a " 'clear and substantial contradiction between the respective defenses' caus[es] inherent irreconcilability between them," Tillman, 519 A.2d at 170 (citing Williams v. United States, 382 A.2d 1, 8 (D.C. 1978)), and (2) that the irreconcilability creates "a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966)....