Richardson v. United States

• Citation: 116 A.3d 434
• Decision Date: 11 June 2015
• Docket Number: 12–CF–1409.,Nos. 12–CF–1303,s. 12–CF–1303
• Parties: Anthony RICHARDSON and James Walker, Appellants, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

116 A.3d 434

Anthony RICHARDSON and James Walker, Appellants
v.
UNITED STATES, Appellee.

Nos. 12–CF–1303
12–CF–1409.

District of Columbia Court of Appeals.

Argued Oct. 29, 2014.
Decided June 11, 2015.

116 A.3d 435

Cory L. Carlyle for appellant Richardson.

Mikel–Meredith Weidman, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Walker.

Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time, and Elizabeth Trosman and Lauren Dickie, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and BLACKBURNE–RIGSBY, Associate Judges, and PAN, Associate Judge, Superior Court of the District of Columbia.^*

Opinion

PAN, Associate Judge:

Following a jury trial, appellants James Walker and Anthony Richardson were convicted of kidnapping while armed, felony threats, simple assault, unlawful entry, carrying a dangerous weapon (a knife), and various firearms offenses. On appeal, appellants challenge their kidnapping convictions, arguing that the evidence was insufficient because the conduct underlying the kidnappings was incidental to the offenses of robbery and assault.¹ Appellant Richardson also contends that (1) there

116 A.3d 436

was insufficient evidence to support his conviction for carrying a dangerous weapon (“CDW”) and (2) his kidnapping conviction should merge with his simple-assault convictions. For the reasons that follow, we find appellants' arguments unpersuasive and affirm the judgments of the trial court.

I. Background

In the early morning hours of Sunday, November 20, 2011, Metropolitan Police Department officers went to 611 Florida Avenue, N.W., Washington, D.C., in response to a 911 call reporting a break-in at that residence. In a first-floor bedroom, the police found four people: Jazzmen Johnson, Silas O'Brien, and the two appellants. Mr. O'Brien was nude from the waist down and was bleeding from an injury to his ear; his hands were bound behind his back. At trial, the government advanced the theory that appellants had assaulted and attempted to rob Mr. O'Brien and Ms. Johnson; and that appellants had kidnapped the victims—both by detaining them in the bedroom against their will, and by forcing Mr. O'Brien to go into the house and into the bedroom.

Mr. O'Brien testified that on the evening of November 19, 2011, he attended a party at Howard University with his friends, the Thomas brothers. He then went to the Thomases' apartment on the second floor of 611 Florida Avenue, N.W. Shortly after arriving, Mr. O'Brien went outside to retrieve his jacket from the Thomases' car. After he got his jacket and turned to re-enter the house, Mr. O'Brien saw a man walking toward him on top of a fence near the home. Mr. O'Brien froze, and then saw another man pointing a gun at him. Mr. O'Brien grabbed the gun, and started struggling with the two men. One man struck Mr. O'Brien in the face, and the other struck him over the ear with the gun. The two men were later identified as appellants.

Appellants forced Mr. O'Brien to go into the house with them. Once inside, appellants asked Mr. O'Brien who else was in the house and who was upstairs. Not wanting his friends to be surprised by the assailants, Mr. O'Brien fought appellants in the kitchen and dining room of the house. Appellants struck Mr. O'Brien multiple times, knocked him to the floor, and pulled off his pants and underwear. With his pants removed, Mr. O'Brien ceased struggling. Appellants used a zip tie to bind his hands behind his back. When the zip tie broke, appellants struck Mr. O'Brien in the head and bound his hands with another zip tie.

Appellants then brought Mr. O'Brien to the door of the bedroom nearest the kitchen, where they sat him against a wall. One of the appellants questioned Mr. O'Brien about who was in the bedroom and how many people were upstairs, while the other manipulated the door handle and tried to enter the bedroom. The bedroom belonged to Jazzmen Johnson, a chemical-engineering student at Howard University. She was in bed and awoke to the sound of voices and “tussling” in the hallway. When Ms. Johnson heard someone whisper, “Bust down the door,” she called 911 to report a break-in. While Ms. Johnson was still on the phone with the police, appellants broke into her room and threw Mr. O'Brien onto the floor. Appellant Walker jumped onto the bed on top of Ms. Johnson and pointed a gun at her. He snatched the phone from her hands and ordered her to get out of bed and onto the floor. Appellant Walker pushed the gun against Ms. Johnson's neck as appellants bound her hands behind her back with zip ties. Appellant Richardson turned on the lights and searched the room for valuables.

116 A.3d 437

After a few minutes, a police officer, Gerald Anderson, arrived. Officer Anderson noticed blood on the door and wall outside of Ms. Johnson's bedroom, and a piece of a broken doorjamb and zip ties on the floor. He knocked on the door of the bedroom and identified himself as the police. Appellant Walker held a gun to Ms. Johnson's head and instructed her to tell the officer that everything was fine. She complied. Appellant Walker unbound Ms. Johnson's hands and got into bed with her. He told her to say that she was with her boyfriend; if she did not cooperate, he would cut her. Ms. Johnson complied. Officer Anderson continued to insist on speaking to Ms. Johnson face-to-face, but she refused to open the door, stating that she was not dressed, that she was in bed, and that she did not need to see the police. Officer Anderson persisted in knocking on the door and demanding that Ms. Johnson open it; Ms. Johnson, under pressure from appellants, continued to give false excuses as to why she could not come to the door. This standoff continued for eight to ten minutes.

Eventually, appellant Walker instructed Ms. Johnson to open the door, which she did. Ms. Johnson walked out of the room and whispered to the police, “There are two men in my room that I don't know.” The police entered the room and arrested appellants. The police also released Mr. O'Brien from his bindings. During a search incident to arrest, the police recovered a knife from appellant Walker's belt, and zip ties and a bloody glove from appellant Walker's pockets. The police found a loaded .25–caliber pistol outside, underneath Ms. Johnson's bedroom window.

In the defense case, appellant Walker presented a very different account of what had happened. Appellant Walker testified that he possessed zip ties that day because he worked at a moving company and had helped someone move electronics. He and appellant Richardson lived in the same house. On the day in question, they went to a club on U Street and then got some food. At about 5:15 a.m., they went to 611 Florida Avenue, N.W., to purchase marijuana from Mr. O'Brien.

Mr. O'Brien sold appellant Walker a half of an ounce of marijuana for fifty dollars. But appellant Walker was dissatisfied with the product, and asked for his money back. When Mr. O'Brien refused to return the money, appellant Walker and Mr. O'Brien engaged in a “fistfight.” Appellant Richardson came to Walker's aid. During the struggle, appellant Walker pulled out Mr. O'Brien's earring and pulled off Mr. O'Brien's pants in an attempt to recover his money.

According to appellant Walker, Mr. O'Brien then obtained a gun from a kitchen cabinet, and the three men struggled for the gun. The tussle moved through the hallway, bouncing from wall to wall, until the men burst into Ms. Johnson's bedroom. When the police knocked on the front door, Mr. O'Brien threw the gun out the window and told Ms. Johnson, “You know I have weed upstairs, so you got to make up a plan to get the police away.” Ms. Johnson then spoke to the police through the door, of her own accord. Appellant Walker denied that either appellant searched Ms. Johnson's room for valuables, and denied ever using zip ties to bind the hands of Ms. Johnson or Mr. O'Brien.

Based on the foregoing evidence, the jury convicted appellant Walker of the following offenses: armed kidnapping and simple assault as to Mr. O'Brien; and armed kidnapping, felony threats, simple assault, and possession of a firearm during a crime of violence as to Ms. Johnson. The jury convicted appellant Richardson of unarmed kidnapping and simple assault as

116 A.3d 438

to Mr. O'Brien; and armed kidnapping, simple assault, and possession of a firearm during a crime of violence as to Ms. Johnson. Both appellants also were convicted of unlawful entry, numerous firearms offenses, and carrying a dangerous weapon (a knife). The jury acquitted both appellants of burglary, destruction of property, assault with intent to rob while armed, assault with significant bodily injury, conspiracy to commit robbery, and related counts of possession of a firearm during a crime of violence. Appellant Walker was sentenced to an aggregate term of 236 months' imprisonment. Appellant Richardson was sentenced to an aggregate term of 139 months' imprisonment.

II. The Kidnapping Charges

On...