Lemon v. U.S.

• Decision Date: 26 September 1989
• Docket Number: No. 86-1378.,No. 86-954.,86-954.,86-1378.
• Citation: 564 A.2d 1368
• Parties: Bernita LEMON, Appellant, v. UNITED STATES, Appellee. Benny L. PRINCE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1368

564 A.2d 1368

Bernita LEMON, Appellant, v. UNITED STATES, Appellee.

Benny L. PRINCE, Appellant, v. UNITED STATES, Appellee.

No. 86-954.

No. 86-1378.

District of Columbia Court of Appeals.

Argued June 7, 1989.

Decided September 26, 1989.

Melvin M. Dildine, Washington, D.C., appointed by the court, for appellant Lemon. Thomas K. Clancy filed a brief, for appellant Lemon.

Barbara R. Miller, Washington, D.C., appointed by the court, for appellant Prince.

Bruce Delaplaine, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, and Mary Ellen Abrecht, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before FERREN, BELSON, and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

Bernita Lemon and Benny Prince were both convicted by a jury of four counts of armed robbery¹ in connection with a harrowing incident in which the victims were forced to strip naked in an apartment in Southeast Washington in the early morning hours of Sunday, March 31, 1984. Prince was also convicted of carrying a pistol without a license.² Of the numerous arguments presented to us in the two appellants' consolidated appeals, we address in detail only Prince's claims that the trial court committed reversible error by denying his motion for severance of defendants, that the prosecutor improperly invoked the "missing witness" doctrine against him, that he was denied his constitutional right to a speedy trial, and that he was improperly sentenced to a mandatory minimum term of imprisonment. Although we find some merit in Prince's contentions with respect to the "missing witness" issue, we conclude that, on the particular facts of this case, reversal is not required. We find Prince's other principal contentions to be plausible but, on balance, unpersuasive, and Ms. Lemon's claims to be meritless.³ Accordingly, we affirm both appellants' convictions.

I THE FACTS

This case had its inception in a Saturday night encounter between two groups of people. Many of the members of both groups had been drinking alcohol or using drugs or both. Unsurprisingly, there were numerous contradictions and incongruities in the testimony (most of them on collateral issues) which Prince's appellate counsel was able to bring out skillfully in her brief. Nevertheless, the principal events of the night in question emerge with reasonable clarity from the testimony.

According to the prosecution's evidence, Ms. Lemon was at her sister's house on the evening of March 30, 1984 with her friend Pamela Givens. At about midnight, she left for a short period. Upon her return, she persuaded Ms. Givens to join her in riding around in a van with two young men, later identified as Prince and his friend Reginald Nelson. The four of them eventually drove to a service station, where they encountered five of the other six dramatis personae, namely Phyllis Chesley, Beverly Portier, Garland Thames, Melvin Howard and Marion Foster. Following some discussion among the nine persons now present, of whom some knew each other and some did not, all of them travelled in the van for a few blocks to 242 Oakland Street, S.E., where Ms. Chesley, Ms. Portier and Melvin Howard all lived. They were met there by Melvin Howard's brother James, and they all went into the hosts' apartment, ostensibly to play cards, drink and socialize.

The party had hardly been launched when Prince suddenly pulled out a pistol and appellants announced a stick-up. They ordered all of the persons (except for their two original companions) to strip. Prince fired a shot into the wall, hitting nobody. He also struck Thames, an elderly man, in the head with the butt of his weapon. Ms. Lemon went through the victims' valuables and clothing, and she and Prince carried away a T.V. set and a number of other items, including the victims' clothes. Although there was some suggestion that they may have acted as lookouts, Ms. Givens and Nelson were for the most part depicted as passive spectators in the proceedings, neither participating in the intimidation and expropriation of the victims nor doing anything to assist them.

After leaving the apartment, the two appellants, Ms. Givens and Nelson drove in Prince's van to an alley and threw the stolen clothes and some other items into a dumpster. After some incomplete sexual dalliances among the participants and the purchase and consumption of some cocaine, Prince gave the women the remaining proceeds of the robbery.

The victims made no immediate report of the crime after the robbers had left. Early on the following afternoon, however, Ms. Portier and Melvin Howard saw the gunman operating the van in which they had travelled on the previous day and called the police. Officers responded and stopped two vans, only to learn from the witnesses that neither vehicle was involved in the robbery. After a third van was stopped, however, Ms. Portier and Howard identified both the van and the driver, who turned out to be Benny Prince. Prince was arrested, the identity of Ms. Lemon was subsequently ascertained, and both appellants were indicted, tried and convicted.

At trial, both appellants were identified as the robbers by Ms. Givens and Ms. Chesley. Ms. Portier, Melvin Thomas arid Thames also identified Prince in court.⁴ A confession by Ms. Lemon, from which allusions to the identity of the gunman had been redacted, was introduced into evidence. Proof was presented that a bullet fired from a .38 caliber revolver was recovered from a plaster wall.

Ms. Lemon testified on her own behalf. She admitted participating in the robbery, which she described as having been unplanned, at least by her. She asserted that she was afraid of the gunman, and relied on a defense of duress. She admitted collecting and retaining the proceeds of the robbery and helping to carry them away. On cross-examination by the prosecutor, she positively identified Prince as the gunman.

Prince presented defenses of misidentification and alibi. Marion Foster, one of the victims of the robbery, testified that she was positive that Prince was not the gunman. She stated that she had never seen him before coming to court. Vincent Starks, a federal protective service officer, testified that Prince and one George Cole had arrived at the home of Starks' girlfriend, Martina Smith, between 11:00 p.m. and 11:30 p.m. on the night in question and had remained there for several hours.

Prince also testified in his own behalf. He confirmed that he had given a ride home in the van to the complaining witnesses, whom he described as having been under the influence of alcohol.⁵ He said he left them at about 10:00 p.m. without ever going to their apartment. Prince related that he then picked up George Cole and that they both visited the home of Martina Smith, where he remained until 2:30 or 3:00 a.m. Prince was impeached with two previous convictions.

The jury convicted both appellants of all charges, except that Prince was found not guilty of assault with a dangerous weapon on Thames.

II THE DENIAL OF PRINCE'S MOTION FOR A SEVERANCE

Correctly acknowledging that the trial judge has "very considerable discretion"⁶ in the matter, Prince claims that Judge Weisberg abused that discretion when he denied Prince's repeated requests that his case be severed from Ms. Lemon's. He contends that Ms. Lemon appeared to be under the influence of drugs during the trial, tainting him by association in the eyes of the jury; that he was prejudiced by the admission of a redacted version of Ms Lemon's confession; that he and Ms. Lemon presented defenses so irreconcilable as to create a danger that he would be convicted as a result of the conflict alone; and that he was prejudiced by Ms. Lemon's testimony about his use of cocaine after the robbery. We find none of these contentions persuasive.

A. Ms. Lemon's demeanor.

Ms. Lemon appeared to be sleeping, both while the jury was being selected and on several occasions after the trial began. Several prospective jurors noticed and discussed her condition during voir dire. At least one member of the jury which was eventually seated speculated that she might be on drugs.⁷ Judge Weisberg warned Ms. Lemon that if she slept during the trial, this might well make it more probable that she would be convicted. The judge also suggested to Ms. Lemon's counsel that he "whack her on the leg" if she fell asleep "so she doesn't create a bad appearance in front of the jury."

In response to questioning by the court, Ms. Lemon reported that she was drowsy from cold medication. Judge Weisberg advised the jurors that Ms. Lemon was suffering a cold and was taking prescription medicine. He admonished them not to draw any inference against Ms. Lemon "or anyone else"⁸ on account of her appearance, and directed them to report any development that would interfere with their ability to be fair.

Prince contends that the prejudice from Ms. Lemon's appearance rubbed off on him, and that "he had a right to be protected against the prejudice resulting from [her] use of drugs and stuporous condition." Whatever the merits of such a contention under some different factual scenario, however, see United States v. Bailey, 219 U.S. App.D.C. 67, 72, 675 F.2d 1292, 1297, cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), it surely lacks any persuasive force here.

As Prince himself forcefully contends, he and Ms. Lemon were asserting irreconcilable defenses. When Ms. Lemon took the stand, she became one of the most damaging witnesses against him. On cross-examination, Prince attempted to undermine Ms. Lemon's credibility by inquiring into her use of alcohol and cocaine. If the jurors believed that Ms. Lemon was in a drug-induced torpor during trial, such a belief would logically have reinforced Prince's contention that her testimony against him was unreliable. Given these circumstances, it was not unreasonable for the judge to...