Payne v. United States
| Decision Date | 15 October 1986 |
| Docket Number | No. 83-1552.,No. 84-432.,No. 84-588.,No. 84-549.,No. 84-433.,83-1552.,84-432.,84-433.,84-549.,84-588. |
| Parties | Leon C. PAYNE (No. 83-1552), Michael D. Mozee (No. 84-432), Ronald E. Davis (No. 84-433), Santonio F. Diggs (No. 84-549), and Frederick L. Edwards (No. 84-588), Appellants, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Steven R. Kiersh, Washington, D.C., appointed by the court, for appellant Payne.
Michael Olshonsky, Washington, D.C., appointed by the court, was on brief, for appellant Mozee.
P. Scott Dufault, appointed by the court, for appellant Davis.
Allie Sheffield, Public Defender Service, with whom James Klein and Mark S. Carlin, Public Defender Service, Washington, D.C., were on brief, for appellant Diggs.
Karen Knopp O'Konski, Washington, D.C., appointed by the court, for appellant Edwards.
John M. Facciola, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before PRYOR, Chief Judge, and ROGERS and STEADMAN, Associate Judges.
These consolidated appeals arise from the joint trial of five codefendants: Leon C. Payne, Michael D. Mozee, Ronald E. Davis, Santonio F. Diggs, and Frederick L. Edwards, on armed robbery charges.1 Two defendants, Diggs and Mozee, were also charged with obstructing justice.2 The jury found each of the five defendants guilty as charged.3 All five now appeal their respective convictions, raising various claims of error. Specifically, Payne, Edwards and Diggs argue that the trial court erred in denying their motions, made during trial, to sever their cases from their codefendants, and that the evidence presented at trial was insufficient to support their guilty verdicts. In addition, Edwards argues that the trial court committed reversible error in refusing to give a requested version of a jury instruction on the use of "other crimes" evidence, and in refusing to give a requested "Telfaire"4 instruction. Davis claims the trial court erred in refusing to admit certain testimony of one alibi witness, and in quashing the subpoena of a Washington Post newspaper reporter. Mozee and Diggs contend that in light of this court's recent opinion in Stoney v. United States, 494 A.2d 1303 (D.C. 1985), their convictions for obstruction of justice must be reversed. Lastly, Diggs maintains that the trial court erred in denying, without a hearing, his motion for a new trial. Upon consideration of all of these issues, we find no reversible error arising from any of these claims, and therefore, we affirm appellants' convictions.
The government's evidence showed that on the evening of January 12, 1982, five individuals, later identified as appellants, robbed a combination service station and convenience store, located at 5670 Central Avenue in Southeast Washington, owned by Harold and Gloria Kim. Both Mr. and Mrs. Kim were present in the establishment at the time of the robbery. The evidence revealed that, during the course of the robbery, some of the robbers operated inside the store and others stood outside.
Mr. Kim testified that at approximately 8:45 p.m., he and an employee, Anthony Carver, were moving merchandise from the office to the sales area, when Mr. Kim heard a man say, "Everybody out." Mr. Kim looked up and saw three men inside the service station announcing a robbery and ordering the other customers out of the store. One of the robbers put a shotgun to Mr. Kim's chest, while a second gunman, later identified as appellant Mozee, pointed a handgun at Mr. Kim's face and demanded money. When Mr. Kim appeared to resist, Mozee struck him in the face with the handgun, causing a wound that bled profusely and that ultimately had to be closed by four stitches. While Mr. Kim sat on the floor holding his head, Mozee removed approximately $500 from Mr. Kim's pocket. Mr. Kim watched as Mozee then removed an unspecified sum from the cash register. Mrs. Kim, who had been standing behind the cash register when the robbers first entered, testified that she hid on the floor underneath the shelf of the garage lift, as she saw one of the robbers approaching the cash register. Both Mr. and Mrs. Kim watched the robbers flee out the door.
The day after the robbery, Maurice Robinson, a thirteen-year-old youth who lived in the neighborhood and who knew the Kims, came to the service station. Claiming he had witnessed the robbery, Robinson wrote down for Mr. Kim the names of five men whom he alleged were the robbers. The names on Robinson's list belonged to the five appellants. At Mr. Kim's request, Robinson also borrowed Mr. Kim's Polaroid camera and brought back photographs of appellants Payne and Davis. Mr. Kim shared this information with Detective Leo F. Spriggs, the police officer investigating the robbery.
Another neighborhood youth, Shawn Horn, also came to Mr. Kim shortly after the robbery with information about the perpetrators. Horn claimed to have witnessed the robbery from behind some bushes near the Kim's service station. Like Robinson, Horn also gave Mr. Kim a list with names or nicknames of the alleged robbers. Horn's list contained the same names or nicknames as those on Robinson's list.
In the weeks that followed, Mr. and Mrs. Kim on two separate occasions spotted members of the group that had robbed them in their store. The first time, Horn was present in the station when Mr. Kim saw Mozee approach. Horn knew Mozee by name and ultimately identified for the police the house where Mozee lived. Several days later, Mrs. Kim recognized another one of the robbers, later identified as appellant Davis, when she saw him in the store buying merchandise.5 Mr. Kim called the police, who arrested Davis after Mr. Kim identified him as one of the robbers.
Approximately two weeks after the robbery, Mr. Kim identified appellant Mozee from a photo array. Thereafter, in a series of separate lineups, Mrs. Kim identified Davis as one of the assailants,6 and Mr. Kim identified Mozee, and then Diggs, as perpetrators of the robbery. In addition, Mrs. Kim made in-court identifications of Mozee, Diggs, and Davis. Mr. Kim, however, did not make any in-court identifications.
The government's main witnesses, in addition to the complainants, were Maurice Robinson, Shawn Horn, and Detective Spriggs.
Maurice Robinson testified that on the night of the robbery, he saw the five appellants walking down the hill which leads toward Mr. Kim's service station. He recognized appellants, whom he had known for a couple of years from the neighborhood, by the distinctive way in which they walked. As he stood near a liquor store across from the Kims' station, he saw Edwards, who was armed with a short shotgun, and Mozee run behind the store's counter and "stick up" Mr. and Mrs. Kim. Robinson stated that he watched appellants "take the Kims' money" and then run back up the hill toward 57th Street.
Robinson also testified that in January of 1982, shortly after he gave Mr. Kim the Polaroid photographs of Davis and Payne, those two appellants approached him separately and told him to retrieve the pictures. Thereafter, Davis came up to Robinson in an arcade one day and told Robinson that "if he didn't give the pictures back[,] he would hit [him]," and indeed threw Robinson against the window of the arcade. Robinson testified further that a few days before trial, appellant Mozee instructed Robinson that when testifying, he should say that he had not seen Mozee "do nothing."
On cross-examination by Diggs' attorney, however, Robinson recanted his testimony with respect to the events surrounding the robbery. Robinson claimed that he had provided information about the robbery only to get money and that he did not see anything happen at the Kims' service station on the night of the incident. On redirect, the prosecutor tried but was unable to rehabilitate Robinson's earlier testimony on direct examination.
Shawn Horn testified7 that on the night of the robbery he witnessed the events from behind some bushes approximately twenty feet from the service station. Horn indicated that he was able to see the robbers' faces as they entered and left the service station. He stated that he saw Edwards pass a gun to Payne, and saw Davis pass a bag to Edwards. He watched as the robbers ran away from the station and up the hill.
Horn also testified that within a month after the robbery Mozee and Diggs threatened him in connection with his participation in the robbery investigation. According to Horn, the two appellants "came up to me and asked me what I was going to court for, [and they] tell me what they was gonna do to kick my butt." When he and Mozee met on two other occasions, according to Horn, Mozee acted as if he were preparing to hit Horn.8 Finally, Horn testified that a few weeks before the trial was set to begin, Davis asked Horn to tell Davis' attorney that Davis was not involved in the robbery.9
Neither Mozee, Edwards, nor Payne presented any evidence. Davis, however, presented an alibi defense and testified on his own behalf, while Diggs called other witnesses to impeach the government's witnesses.
Edwards, Payne and Diggs10 each contend that the trial court erred in denying their respective motions for severance. With the exception of Diggs, appellants first raised their severance motions during trial in response to the government's proffer that Maurice Robinson would testify concerning threats made against him by some of the defendants. The trial court denied all three motions, ruling that the evidence about the threats was admissible on the grounds that its probative value outweighed any prejudicial effect it might have.11 Diggs had previously filed a pretrial motion to sever his trial. In that motion, Diggs contended that severance was warranted because the...
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