Moorer v. US

• Decision Date: 17 February 2005
• Docket Number: No. 01-CF-1409.,01-CF-1409.
• Citation: 868 A.2d 137
• Parties: Willie S. MOORER, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

868 A.2d 137

Willie S. MOORER, Appellant v. UNITED STATES, Appellee.

No. 01-CF-1409.

District of Columbia Court of Appeals.

Argued March 9, 2004.

Decided February 17, 2005.

Andrea Roth, Public Defender Service, with whom James Klein, Sandra Levick, and Timothy O'Toole, Public Defender Service, were on the brief, for appellant.

Allison Harnisch Leotta, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., and John P. Mannarino, Assistant United States Attorneys, were on the brief, for appellee.

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

TERRY, Associate Judge:

Appellant Willie Moorer was indicted for armed carjacking, armed kidnapping, possession of a firearm during a crime of violence ("PFCV") associated with the carjacking, and PFCV associated with the kidnapping. After the close of the government's evidence, the trial court granted appellant's motion for judgment of acquittal on the armed kidnapping count and the PFCV count associated with the kidnapping. At the end of the trial, the jury found appellant not guilty of armed carjacking, not guilty of the lesser included offense of assault with a dangerous weapon, not guilty of PFCV associated with the carjacking, but guilty of the lesser included offense of (unarmed) carjacking. On appeal from the judgment of conviction, appellant argues (1) that the trial court erred in determining that the offense of taking property without right is not a lesser included offense of carjacking, and (2) that the court erred in concluding that it had no discretion to impose a sentence of less than seven years for carjacking. We reject both arguments and affirm the conviction and sentence.

I

During the evening of February 9, 2001, Steven Trowell was driving to his mother's house with his girl friend, Quantana Davis, in his dark blue Toyota Camry. At the intersection of Fourth Street and Rhode Island Avenue, N.E., Trowell saw his friend, Kenneth Lewis, standing on the opposite side of the street. Trowell made a U-turn and pulled his car up to the spot where Lewis was standing. Trowell then got out of the car to speak with Lewis for a few minutes, leaving Ms. Davis sitting in the front passenger seat. The car's windows were closed, and the engine was left running.

As Trowell and Lewis were conversing, appellant approached them. Trowell and appellant did not formally know each other, but they had seen each other around the neighborhood. According to Trowell, appellant appeared drunk or high and "look[ed] like he was not having a normal day." Standing about twelve to fifteen feet away, appellant asked Trowell if he had a cigarette, to which Trowell replied that he did not smoke.

Appellant then walked closer to Trowell and said, "Look me in the face and tell me you don't smoke." Trowell responded that he "didn't have to do it" and turned back toward his friend Lewis, attempting to ignore appellant. As he looked away from appellant, Trowell said, "Man, I've got nothing to do with you. I got nothing to tell you; you ain't nobody to me."

Appellant then announced that he was "going to drive [Trowell's] car." Trowell "just told him he wasn't" and opened the left front door, placing his hand on the door. Appellant again declared to Trowell that he was going to drive Trowell's car ("basically he just told me"), and again Trowell replied "that he wasn't driving my car." Then appellant pulled a gun out of his waistband and held it "with his hand down to the side of his waist." For a third time, appellant told Trowell that he was going to drive the car, and Trowell again "told him that he wasn't."

Appellant then pointed the gun directly at the center of Trowell's forehead and said that he was "going to show [Trowell] how much of a bitch ass [expletive]" Trowell really was. With the gun still pointed at his head, Trowell finally let go of the car door and stepped away from it. Appellant "flop[ped] in the car and slammed it in gear and drove off" very quickly, even though Ms. Davis was still in the front passenger seat. Trowell ran after the car until appellant made a right turn onto Fifth Street, N.E., at the corner of Rhode Island Avenue. At that point he stopped running.

Ms. Davis had been unaware of the confrontation between Mr. Trowell and appellant because she was listening to the radio, but she did notice that there were three people talking outside the car. Even after the car started to drive away, Ms. Davis at first failed to realize that someone other than Trowell was driving until the car "took off at a high speed" around a corner. This prompted her to look to her left and discover that appellant was the driver. Davis was "kind of nervous,"¹ but she was not afraid that someone unknown to her was driving because she thought "maybe [Trowell] had asked him to test drive the car because it was new." Appellant and Ms. Davis exchanged brief greetings, and appellant told her that "he was going to show [her] bitch ass boy friend that he wasn't playing." After appellant drove the car another block, he informed Davis that he had "to go kill somebody" and asked her if she wanted to come along. Davis said no, so he stopped and let her out of the car at Fifth and W Streets, N.E. Davis then walked to Trowell's mother's house a couple of blocks away. Ms. Davis never saw a weapon in appellant's possession, nor did appellant tell her that he had a weapon.

After appellant drove off in the car and Trowell's foot pursuit failed, Trowell ran to his mother's house and telephoned 911. While he was on the telephone with the police, Ms. Davis walked into the house. The police arrived within minutes. Trowell's car was found a short time later around the corner from the place where appellant had taken it.

Appellant took the stand in his own defense. He admitted that he was "kinda drunk" and "high" when he first saw Trowell and Lewis engaged in conversation on the street corner. Appellant said he first approached them to ask Trowell for a cigarette. The three men then stood together for a few minutes, talking back and forth. As their conversation progressed, appellant asked if he could drive Trowell's car, but Trowell "said no." According to appellant, Trowell "had an attitude" and "started talking smart." So, "just to make him mad" and to "mess with him," appellant grabbed the car door, jumped into the car, and drove off, intending only to "go around the block and come back." Appellant specifically testified that he did not have a gun that night and did not use a gun to take possession of the car or "use any force at all."

After driving the car away from the corner of Fourth and Rhode Island, appellant noticed Ms. Davis sitting next to him in the passenger seat. Although he could not recall their conversation, he did remember stopping the car to let her out. He then continued driving the car "around the block" and left it in a parking lot close to the corner where he had taken it.

After all the evidence was in, counsel and the court discussed whether the jury should be instructed on any lesser included offenses. Defense counsel asked the court to instruct on taking property without right ("TPWR") as a lesser included offense of carjacking. Although the court was initially inclined to do so, the government objected, citing Pixley v. United States, 692 A.2d 438 (D.C.1997). The court took the issue under advisement and later ruled that, according to Pixley, TPWR is not a lesser included offense of carjacking. It therefore denied defense counsel's request for a TPWR instruction.

A few weeks after the trial, the court sentenced appellant to seven years' imprisonment, the mandatory minimum sentence under the carjacking statute,² to be followed by three years of supervised release.³ While imposing sentence, the court said that it did not have "any discretion here" in determining the minimum sentence. The court added, however:

I do not believe that this is a case that warrants seven years of mandatory time. I believe it to be completely disproportionate to the facts of this case, but I am a judge bound to apply the law, and I will apply it.

II

Appellant argues that the trial court erred in concluding that TPWR is not a lesser included offense of carjacking. The standard for determining whether one criminal offense is included within another is well settled; we apply the so-called "elements" test. Lee v. United States, 668 A.2d 822, 825 (D.C.1995) (citing Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)); Price v. United States, 602 A.2d 641, 644 (D.C.1992); see Leak v. United States, 757 A.2d 739, 740 (D.C.2000) ("[t]he standards for our review are well-established" in determining what constitutes a lesser included offense). Under the elements test, one offense is included within another if "(1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge." Id. (citation omitted); accord, Plater v. United States, 745 A.2d 953, 956-957 (D.C.2000); Rease v. United States, 403 A.2d 322, 328 (D.C.1979). Therefore, the elements of the relevant crimes "shape the analysis." Leak, 757 A.2d at 740.⁴

The first part of the elements test calls for "a textual comparison of criminal statutes," using the "normal principles of statutory construction." Carter v. United States, 530 U.S. 255, 261-263, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (citing Schmuck, 489 U.S. at 720,109 S.Ct. 1443); see Lee, 668 A.2d at 826. Under such a comparison, TPWR is not a lesser included offense of carjacking because (1) TPWR contains the element of asportation and carjacking does not, and (2) asportation is an independent element of TPWR and — contrary to appellant's argument — has not been folded into the separate taking element of TPWR. In addition, (3) this...