Jennings v. United States, 14122.

• Decision Date: 21 May 1981
• Docket Number: No. 14130.,No. 14241.,No. 14122.,14122.,14241.,14130.
• Parties: Robert JENNINGS, Jr., Appellant, v. UNITED STATES, Appellee. Ronald JENNINGS, Appellant, v. UNITED STATES, Appellee. Andre R. SPRINGS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 552

431 A.2d 552

Robert JENNINGS, Jr., Appellant, v. UNITED STATES, Appellee.

Ronald JENNINGS, Appellant, v. UNITED STATES, Appellee.

Andre R. SPRINGS, Appellant, v. UNITED STATES, Appellee.

No. 14122.

No. 14241.

No. 14130.

District of Columbia Court of Appeals.

Argued February 20, 1980.

Decided May 21, 1981.

COPYRIGHT MATERIAL OMITTED

Joseph J. Trepel, Washington, D.C., appointed by this court, for appellant Robert Jennings, Jr.

Charles Rosenbleet, Washington, D.C., appointed by this court, for appellant Ronald Jennings.

Martin S. Echter, Washington, D.C., appointed by this court, for appellant Springs.

Martha P. Rogers, Asst. U. S. Atty., Washington, D.C., with whom Carl S. Rauh, U. S. Atty., Washington, D.C., at the time the briefs were filed, and Peter E. George and Reggie B. Walton, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KELLY and MACK, Associate Judges.

MACK, Associate Judge:

After a jury trial, each appellant was convicted of ten counts of armed robbery, two counts of armed burglary in the first degree, one count of armed burglary in the second degree, two counts of assault with intent to commit robbery while armed and one count of carrying a pistol without a license. Because we agree with appellant Springs' contention that the government failed to produce sufficient evidence to establish an essential element of the first-degree burglary offenses, we reverse the convictions of appellants on those charges and remand to the trial court with instructions to enter judgments of conviction on seconddegree burglary and to resentence appellants on those counts. Finding no merit to the remainder of appellants' allegations, we affirm all other convictions.

Appellants were tried¹ in connection with the armed burglary of the Wynette Parks "Tourist Home," which was apparently used exclusively as a base for a prostitution operation, and with the armed robbery of the patrons and employees therein. Evidence adduced at trial indicated that on May 2, 1977, the appellants and Jon Miles, at gun point, compelled Shelley Delaney, a prostitute who operated out of the tourist home, to provide them with access into the structure. Having gained entry, the principals proceeded first to rob the patrons and employees present in the first-floor lobby and waiting area, and then to accord the same treatment to two prostitutes and their clients occupying two separate second-floor bedrooms.

I.

Appellant Springs maintains that the trial court erred in denying his motion for judgment of acquittal on the first-degree burglary counts since the government produced no evidence to establish that the second-floor bedrooms entered were bona fide sleeping rooms.² The government concedes³ that insufficient evidence was presented to bring the bedrooms within the ambit of D.C. Code 1973, § 22-1801(a).⁴

To weather a motion for judgment of acquittal, the prosecution must adduce at least some probative evidence on each of the essential elements of the crime. Moore v. United States, D.C.App., 388 A.2d 889 (1978). One of the essential elements of first-degree burglary is that the compartment or structure entered was either a sleeping apartment or a dwelling. Our review of the record supports the contention that the government failed to offer evidence establishing the character of the second-floor bedrooms. If anything, the evidence indicated a contrary result; the rooms were apparently used solely for purposes of consummating prostitution transactions and were occupied essentially for periods of short duration (e. g., fifteen minutes to a half-hour). Under these circumstances, we conclude that the trial court erred in denying appellants' motions for judgment of acquittal with respect to the first-degree burglary counts and that those convictions, therefore, must be reversed. However, we also remand the cases to the trial court with instructions.

This court has on several occasions modified judgments of the Superior Court when the government, although failing to produce sufficient evidence of an essential element of an offense, has produced sufficient evidence to support a conviction for a we will apply our analysis and disposition on this issue to all three appellants. lesser-included offense. See, e. g., Williams v. United States, D.C.App., 376 A.2d 442 (1977) (although proof supporting grand larceny conviction was deficient, case was remanded with instructions to enter judgment of conviction of petit larceny); Cooper v. United States, D.C.App., 368 A.2d 554 (1977) (case remanded with instructions to enter judgment of conviction of second-degree murder where proof of first-degree murder was deficient). In the instant case, the government produced abundant evidence to establish that appellants entered a building and rooms with the intent to commit a criminal offense (viz, robbery), thus supporting convictions of second-degree burglary. Accordingly, we reverse the first-degree burglary convictions and remand to the Superior Court with instructions to enter judgments of conviction of second-degree burglary and to resentence appellants on those counts.

II.

Appellants raise numerous additional trial and pretrial errors. While we find none of merit, we do wish to address several of the issues raised.

Appellant Robert Jennings contends that the trial court erred in denying his motion for severance.⁵ In that motion and in his accompanying brief, appellant alleged that he would be prejudiced by joinder in several ways: the confessions and testimony of his codefendants would deny him a fair trial; he would maintain a defense inconsistent with that of his codefendants; and his mere acquaintance with them would interfere with his right to have his guilt or innocence determined on an independent basis. On appeal, appellant claims that his defense hinged on the argument "that the police were trumping up a charge against him to elicit his aid in finding his brother Ronald Jennings, an escaped convict who had murdered a District of Columbia policeman." Appellant asserts that as a result of the trial court's refusal to sever, he lost the right to develop his defense fully and his brother was prejudiced by disclosure to the jury of his prior criminal conduct.

When two or more defendants are charged with jointly committing a criminal offense, there is a strong presumption that they will be tried together. Cunningham v. United States, D.C.App., 408 A.2d 1240 (1979); Christian v. United States, D.C. App., 394 A.2d 1 (1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979). The presumption arises because joinder serves to expedite the administration of justice, reduce congestion of trial dockets, conserve judicial time, lessen the burdens upon citizens who must sacrifice both time and money to serve as jurors, and avoid the necessity of recalling witnesses who would otherwise be called upon to testify only once. Johnson v. United States, D.C.App., 398 A.2d 354 (1979); Baxter v. United States, D.C.App., 352 A.2d 383 (1976).

Superior Court Criminal Rule 14 provides that a trial court may order a severance or provide whatever other relief justice requires when a defendant is prejudiced by a joint trial. The grant or denial of a motion for severance rests within the broad discretion of the trial court, and we will reverse only upon a showing of an abuse of that discretion. Sousa v. United States, D.C.App., 400 A.2d 1036, cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979). Moreover appellant must prove that his rights have been prejudiced by the denial of the motion for severance. Cunningham v. United States, supra; Clark v. United States, D.C.App., 367 A.2d 158 (1976).

The thrust of appellant Robert Jennings' argument is that he was hindered in fully developing his defense due to joinder. The defense he presented at trial was, in essence, innocent presence at the scene of the crime. On the other hand, Ronald Jennings' defense was basically alibi, e. g., mistaken identity and absence from the scene.

When defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty, severance is required. Rhone v. United States, 125 U.S.App.D.C. 47, 365 F.2d 980 (1966); Johnson v. United States, supra. The defenses asserted by Robert and Ronald Jennings were not conflicting or irreconcilable. Our review of the record fails to support Robert Jennings' contention that he was hindered in developing his defense because he was jointly tried with his brother. Moreover, we are unable to conclude that appellant Robert Jennings was substantially prejudiced by joinder or that the trial court abused its discretion in denying appellant's motion for severance.

III.

Robert Jennings also claims that he was denied effective assistance of trial counsel. In a related claim, appellant Ronald Jennings asserts that the same ineffectiveness of his brother's counsel denied him a fair trial.

In support of his claim that he was denied effective assistance of counsel, Robert Jennings contends, inter alia, that: counsel's fruitless and harmful cross-examination of government witnesses weakened his brother's defense and thereby "weakened" his own defense; counsel's closing argument was "defective" thus denying him a fair trial; and counsel's pursuit, in the absence of evidence, of the unsuccessful defense that his client was being "framed" by the authorities "cost the appellant any credibility he might have had with the jury and was probably a large factor in his conviction."⁶

To prevail on the claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's gross incompetence in effect blotted out the essence of a substantial defense. Oesby v. United States, D.C.App., 398 A.2d 1 (1977); Angarano v. United States, D.C.App., 312 A.2d 295 (1973), pet. for...