Roy v. US

Decision Date19 January 1995
Docket NumberNo. 92-CF-1560,92-CF-572.,92-CF-1560
Citation652 A.2d 1098
PartiesNakia A. ROY, Appellant, v. UNITED STATES, Appellee. Steve B. ROSS, Appellant, v. UNITED STATES, Appellee.
CourtD.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.

SCHWELB, Associate Judge:

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.

I. THE EVIDENCE
A. The Robbery.

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:

He Ross said, "What's up?" I said, "What's up?" He said, "you got the money?" I said, "Yes, I have the money." And then, I pulled the money out of my pocket, and he said, "Is it 350?" I said "No, it's 400." And then he said, "Count it," so I started counting it, and then he gave me the gun, and when he gave me the gun, I got ready to give him the money, and then he asked for the gun back. So, right then and there, I gave the gun back, and he said, "I really don't want to sell it right now."
So, then, I was, like you know, "Tony,"6 you know. I was calling him, "Tony" you know, to see what was going on, and then he put the clip into the chamber, pulled the round back, pointed the gun in my face and said for me to drop the money.
... I asked him why he was doing this.
... Then he said that he felt as though I had stuck up his people, and that he didn't want to tell me this. He said, "Motherfucker, you stuck my peoples up."
... Then I said, "No, I didn't do that—" I had, "... I never had a gun to do that."
... And then he told me to run.
... At that time, he had told me to put the money on the ground.
... Then I started to back up, and then he said, "I'm not playing with you, I told you." He said, "Better yet, jump the fence," so I jumped the fence.
... Then I gave off the distress signal... Ace of Spades ... and gave a description of the clothes that he was wearing.
... At that point, I started walking toward Tenth Place by the back of the school.

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.

B. The Obstruction of Justice.

Miller testified that on December 9, 1991, nineteen days after the robbery, he was approached by Ross and two other men. He claimed that Ross asked him about being a "snitch" and said that if he (Ross) had a gun, he would "bust" Miller on the spot. After further conversation, according to Miller,

right then and there he said why don't I go ahead and drop the charges because it's not even worth all of that. So, after that, I was, like, well, why did you point the gun at my face if we were so much friends. He said that he was going to give me the money back.8
II. ROY'S APPEAL
A. The Trial Court's Rulings.

At the conclusion of the prosecution's case, Roy's attorney made an oral motion for judgment of acquittal (MJOA). She argued that

my client is not charged with selling of the gun, or even planning to sell a gun; he's charged with an armed robbery of Peppi Miller, and I think, based on the evidence... that a reasonable juror could not conclude that he participated, in any fashion, with a person by the name of Steve Ross in this alleged armed robbery.

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.

The judge stated that
it seems to me there are two separate and distinct theories of aiding and abetting that may enable a factfinder to find Mr. Roy guilty, beyond a reasonable doubt, of the armed robbery.
The first is, if a factfinder could find from that evidence, beyond a reasonable doubt, that he actually aided and abetted the armed robbery; that is, he knowingly and intentionally participated with Mr. Ross in the armed robbery ... That's one theory.
There is another theory. There is a separate and more difficult theory of vicarious aider and abettor liability that would hold Mr. Roy liable for armed robbery if he knowingly and intentionally aided and abetted Mr. Ross in an illegal act; that is, the sale of a gun; and whether he intended it or not, the armed robbery by Mr. Ross was the natural and probable consequence in the ordinary course of things, of the act that he, Mr. Roy, aided and abetted and set in motion.

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:

I tend to think ... if all the jury could find is that Mr. Roy arranged for the sale of a gun, and that's all he intended to arrange, and there's no evidence from which a jury could infer that he had knowledge and intention that this was going to evolve into an armed robbery, that that might not be sufficient to prove his liability for armed robbery as an aider and abettor.
... I doubt whether I'm going to conclude that it goes so far as to say, if you plan and participate in the sale of the gun, and whatever happens, no matter how much it was part of the original plan, is something for which you're held criminally accountable.

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:

The case law that I've seen so far does not define very precisely what, in the ordinary course of things, natural and probable consequences means. And as I think of the facts of this case, in the context of the facts of the cases that I've looked at, in my view, this one is on the edge. So much so that I'm not even certain, at this point, whether I'll let this second theory be submitted to the jury and argued by the Government....
As I see it, what the criminal law is trying to do in these cases is to draw a line to serve two different policies that are incompatible, or inconsistent with each other. On the one hand, there's clearly a policy in
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