Roy v. US
Decision Date | 19 January 1995 |
Docket Number | No. 92-CF-1560,92-CF-572.,92-CF-1560 |
Citation | 652 A.2d 1098 |
Parties | Nakia A. ROY, Appellant, v. UNITED STATES, Appellee. Steve B. ROSS, Appellant, v. UNITED STATES, Appellee. |
Court | D.C. Court of Appeals |
Matthew C. Leefer, appointed by this court, Frederick, MD, for appellant Roy.
Suzanne D. Sager, appointed by this court, Washington, DC, for appellant Ross.
Barbara A. Grewe, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Washington, DC, were on the brief, for appellee.
Before STEADMAN, SCHWELB and FARRELL, Associate Judges.
Nakia A. (Tony) Roy and Steve B. Ross were convicted at a joint trial of armed robbery,1 possession of a firearm during the commission of a crime of violence (PFCV),2 and carrying a pistol without a license (CPWOL).3 Ross was also convicted of obstruction of justice.4 On appeal, Roy contends that the trial judge erred in denying his motion for judgment of acquittal (MJOA) on all charges, and he alleges related instructional error.5 Ross claims that the judge erred in denying his motion to sever offenses.
We hold that the evidence was insufficient as a matter of law to support Roy's convictions of armed robbery and of PFCV. We affirm Roy's CPWOL conviction and all of Ross' convictions.
This case had its genesis in an attempt by law enforcement officers to purchase a handgun through the use of a paid informant. The proposed undercover buy went awry when the prospective purchaser was robbed of his money instead.
On October 8, 1991, Peppi Miller, who was later to become the principal prosecution witness, was arrested on 10th Place in southeast Washington, D.C. and charged with possession of cocaine with intent to distribute it. Six weeks later, on November 20, 1991, Miller was working as an informant for Agent Mark Potter of the Bureau of Alcohol, Tobacco and Firearms (BATF). With Potter's advance knowledge, Miller undertook to arrange the undercover buy which generated the events underlying this case.
Miller testified that during the mid-afternoon of November 20, on 10th Place, S.E., he met with Tony Roy, whom he had known for several years, to discuss the purchase of a handgun and ammunition. Roy told Miller that he should come back later with $400, and that Roy would then have the weapon and two ammunition clips. Miller left the scene and met with Potter and two FBI agents. These men gave him $400 in bills and equipped him with a tape recorder and a transmitter.
At approximately 6:40 p.m., Miller returned to the scene and found Roy, who was with several other people. Miller activated his tape recorder and approached Roy to discuss the proposed purchase. Roy asked Miller if he had brought the money, and Miller showed him the bills. Roy then explained that Miller would have to wait for "Steve" Ross, who was to bring the handgun.
Ross arrived some 45 minutes later, but he and Roy left with another man, apparently to remedy problems with Ross' car. The three men subsequently returned, and Miller asked Roy "what was up." Ross, meanwhile, walked towards the grounds of a nearby school. Roy told Miller that Steve had brought the handgun and that Miller should "go talk to Steve and get it from Steve."
Miller followed Ross through a gate into the school yard and down some steps to a location approximately thirty yards from the entrance. Roy remained in the vicinity of a blue trash can which was near the gate. Miller caught up with Ross, and at trial he described the ensuing events as follows:
Officers promptly responded to Miller's distress signal. Within two minutes, they had apprehended Roy, Ross, and several other individuals who were in the area. Roy and Ross were standing approximately five feet apart near the entrance to the school at the time of their capture. The officers recovered $600 in cash from Ross' front pants pocket; bills totalling $400 were bundled separately from the other money, and a BATF agent testified that these bills were in the same denominations as those which had been provided to Miller earlier.7 A loaded handgun bearing Ross' fingerprint was found near the gate.
Counsel renewed her MJOA at the conclusion of the evidence. The trial judge denied each MJOA without elaboration, but his views are readily discernible from his thoughtful discussion of related instructional and other issues.
For the convenience of the reader, we will refer to the "knowingly and intentionally participated" theory as "Theory A," and the "natural and probable consequences" theory as "Theory B."
During preliminary discussions which preceded the presentation of the evidence, the judge indicated an inclination to limit the prosecution to Theory A—"they're either going to prove that Mr. Roy was knowingly and intentionally involved in the armed robbery or they are not." Returning to the issue during the presentation of the evidence, the judge reaffirmed his preliminary impression:
The prosecution, however, asked the judge to instruct the jury on both theories, and the judge attempted conscientiously to analyze the reach of Theory B:
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