Settles v. U.S.

• Citation: 522 A.2d 348
• Decision Date: 11 March 1987
• Docket Number: No. 85-271.,No. 85-122.,85-122.,85-271.
• Parties: Charles G. SETTLES, Appellant, v. UNITED STATES, Appellee. Willie F. WHITLEY, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 348

522 A.2d 348

Charles G. SETTLES, Appellant, v. UNITED STATES, Appellee.

Willie F. WHITLEY, Jr., Appellant, v. UNITED STATES, Appellee.

No. 85-122.

No. 85-271.

District of Columbia Court of Appeals.

Argued June 24, 1986.

Decided March 11, 1987.

Neal E. Kravitz, Washington, D.C., Public Defender Service, with whom James Klein, Washington, D.C., Public Defender Service, was on the brief, for appellant Settles.

Lawrence M. Baskir, appointed by this court, for appellant Whitley.

Mary Ellen Abrecht, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Alan D. Strasser, Asst. U.S. Attys., were on the brief, for appellee.

Before BELSON, TERRY, and ROGERS, Associate Judges.

TERRY, Associate Judge:

Appellants were charged in a thirteen-count indictment with armed kidnapping, armed rape, and related offenses. The charges were based on two separate incidents occurring ten days apart. A jury found both appellants guilty as charged on ten of the thirteen counts, and guilty of lesser included offenses under the other three. After one of the armed kidnapping verdicts was set aside by the court,¹ judgments of conviction were entered on the twelve remaining counts.²

Both appellants contend on appeal that the trial court erred in refusing to sever the charges relating to the first incident from the charges relating to the second. In addition, appellant Whitley argues that the evidence was insufficient to sustain his conviction of the second set of offenses as an aider and abettor of appellant Settles. We agree that the two sets of offenses were misjoined, and that the misjoinder was not harmless error; accordingly, we reverse both appellants' convictions on all twelve counts. We reject Whitley's claim of insufficient evidence.

I

A. The April 7 Offenses

At approximately 11:00 p.m. on April 7, 1984, a woman whom we shall call Mary Jones (not her real name) was on her way home from an errand when she stopped at a fast-food restaurant at Benning Road and East Capitol Street. She parked her car in the parking lot and went inside to purchase some fried chicken. As she was coming back across the parking lot, Jones noticed a man walking behind her and another man standing in front of her car. She entered the car and locked the door. She was about to start the engine when the first man, appellant Settles, knocked on her window and asked for fifteen cents. Jones said she did not have fifteen cents to give him and told him not to bother her. Just then she noticed that the other man, appellant Whitley, was still standing in front of the car. Feeling "a little nervous" about her situation, she decided to back her car out of the parking space; but when she did so, the car struck a pole. As she got out to inspect the damage, Whitley approached and remarked that it was serious.

Jones got back into her car, but before she could shut the door, Settles forced his way inside. She struggled with him until he pulled a gun and fired it, grazing her hair. She fell over into the passenger seat as Settles warned her not to look at him. Settles then told Whitley to get into the back seat, and as soon as he entered the car, Settles drove away, at the same time demanding money from Jones. She gave him $44 from her purse, throwing the rest of her money unobtrusively under the front seat.

Settles drove to an unlit wooded area behind 5411 D Street, S.E. After parking the car in a parking lot next to an apartment building, he ordered Jones to undress. When she refused, Settles put his gun to her head and threatened to kill her. She then took off her clothes, with the gun still pointed at her head and "clicking in [her] ear. . . ." Settles began feeling her breasts and placed his finger into her vagina. Then he ordered her to lean over the back of the front seat, and when she did so, he raped her, as Whitley, who was in the back seat, simultaneously forced her to commit oral sodomy on him.³ Settles then attempted anal intercourse before raping her a second time. After Settles had finished abusing her, he pushed her into the back seat and ordered her to do whatever Whitley wanted her to do. Whitley, following Settles' lead, got on top of her and raped her.

After Whitley had completed the sex act, the two men searched the car and found the money that Jones had hidden under the front seat. They took it, and also removed Jones' watch from her wrist and two rings from her fingers. Then Settles drove to a nearby housing project, where Whitley left the car for a few minutes while Settles remained with Jones. Moments later Whitley came back and reported that the people he had gone in to see were all out of cocaine and heroin. Settles drove to 53rd Street and Astor Place, S.E., where he and Whitley got out of the car. They allowed Jones to put her clothes back on and told her to leave, threatening to shoot her if she made any wrong turns. She heard a gunshot as she drove away. A police officer later found a bullet hole in the roof of the car and a small metal fragment on the front seat, which he said "could be" a bullet.

Jones immediately went home and called her fiance, who took her to the hospital. There she told a detective what had happened to her. She was also examined by a physician, and semen was found in her vagina which had characteristics of blood group 0 and an enzyme known as PGM-1. These characteristics were consistent with the blood of appellant Whitley. Semen found on the front seat of Jones' car did not reveal a blood type, which led an expert to conclude that it might have been left by a "non-secretor." Tests established that Settles was a non-secretor.

Jones later made positive photographic identifications of both Whitley and Settles, and also identified Settles in a lineup. She positively identified both men in court.

B. The April 17 Offenses

At approximately 4:15 p.m. on April 17, 1984, a woman whom we shall call Gloria Smith (not her real name) was walking with her three-year-old son Kevin to her grandmother's house. They walked across a creek near 60th and East Capitol Streets, N.E. As they passed the rear of an apartment complex, two men suddenly approached them from behind. One of the men—appellant Settles—put his hand over Smith's mouth and shoved her into the basement of a nearby apartment building. Kevin, who had been holding his mother's hand, followed her into the basement. As she was being pushed inside, she turned around and saw appellant Whitley, whom she recognized as someone she had known from the neighborhood for at least fifteen years. His brother had formerly dated Smith's aunt, and Smith knew not only Whitley's name but also his exact address. From their behavior Smith concluded that Settles and Whitley were working in tandem. When Smith told Settles that she knew Whitley, Settles hit her in the back of the head and said, "Shut up; Whitley is not with me." Whitley was "right beside" Settles when this happened. Although Whitley did not go into the basement with the others, Smith testified that he stood "right outside of the door." When the prosecutor asked, "How do you know that?", she replied, "Because I saw him." On cross-examination Smith testified that Whitley was "about three or four feet, I guess," from the door.

Inside the basement, Settles struck Smith in the face and on the back of the head. When her young son began to cry, Settles told her to "shut that boy up" and pushed him in the chest, but he did not stop crying. Settles then reached under Smith's dress and began to rub her breasts. He told her to bend over, but she could not because she was five months pregnant. Settles thereupon put his finger and then his penis into her vagina from behind, attempting to have sexual intercourse, while Kevin stood next to his mother holding her hand. After a short while Settles told Smith that he did not want to hurt her. Ordering her not to turn around, he walked over to the door and started to open it. Smith ignored his instructions, however, and turned to look at him. When she did, she recognized him as someone she had seen several times at a nearby store. Seeing that she was looking at him, Settles threatened her with a stick and told her to face the wall. He demanded her jewelry, but she did not have any. Then he opened the door and went outside. When Smith went to the door and looked out, she saw Settles and Whitley running away together, side by side.⁴ She promptly went to a nearby telephone booth and called the police.

Smith made positive photographic identifications of both Whitley and Settles, and also identified Settles in a lineup. She positively identified both men in court.

Settles presented an alibi for each of the two incidents, claiming that he had been misidentified by the two victims. Whitley offered an alibi for April 7, but claimed innocent presence at the April 17 incident. The jury rejected all their defenses. In returning its verdict, the jury specifically found Whitley guilty as an aider and abettor on April 17.

II

Appellants were jointly indicted and tried on all thirteen counts arising out of the two incidents that occurred on April 7 and April 17. They do not contest the fact that they were tried together, nor could they; two or more defendants who "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses" may be lawfully charged in the same indictment and jointly tried under Super.Ct.Crim.R. 8(b). Instead, appellants challenge the joinder of the April 7 offenses with the April 17 offenses.

Because both sets of offenses were "of the same or similar character," they would have been properly joined under Super.Ct.Crim.R. 8(a) if each appellant had been individually tried. "Rule 8(a) allows joinder of different offenses committed by one defendant." Ray v. United States, 472 A.2d 854, 857 (D.C. 1984). But when two or more defendants are charged in the same...