Sinclair v. United States, 9761.

• Decision Date: 02 June 1978
• Docket Number: No. 9761.,9761.
• Citation: 388 A.2d 1201
• Parties: Edwina SINCLAIR, a/k/a Barbara Johnson, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1201

388 A.2d 1201

Edwina SINCLAIR, a/k/a Barbara Johnson, Appellant, v. UNITED STATES, Appellee.

No. 9761.

District of Columbia Court of Appeals.

Argued November 10, 1976.

Decided June 2, 1978.

As Amended June 8, 1978.

Rehearing and Rehearing en Banc Denied August 1, 1978.

Jeffrey S. Berlin, Washington, D. C., appointed by this court, for appellant.

Douglas J. Behr, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Eugene M. Propper, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before HARRIS and MACK, Associate Judges, and REILLY, Chief Judge, Retired.

REILLY, Chief Judge, Retired:

This is an appeal by a young woman from a conviction of kidnapping and armed robbery.¹ She was sentenced to concurrent terms of 8 to 25 years' imprisonment after being tried jointly with three other defendants. One of them, Flunnoy H. Brazwell, pleaded guilty to robbery after testifying. The other two, John E. McNeil and Ronald M. Williams, were found guilty by the jury of kidnapping while armed and armed robbery. Neither appealed.

At the trial, the principal government witness against the defendants was a journeyman housepainter, Calvin Poteat. One summer evening, Poteat, having received his weekly pay put $200.00 in his pockets and took a bus to the 1300 block of Corcoran Street, where — as he had expected — a sidewalk dice game was in progress. He joined some 15 or 20 players gathered in a circle. About 11:30 o'clock — some six hours later — he decided to quit while he was ahead, having won more than $50.00 and a watch from the other gamblers. He then invited appellant, whom he had noticed at the game, to have a beer with him. She told him to "wait a minute," departed, and returned within five minutes to the curb, driving a car with Virginia license plates. He joined her in the front seat, but before the car entered the 13th Street intersection at the end of the block, three men (the codefendants) climbed into it as it halted before a stop sign.

One (later identified as McNeil, the owner of the car) forced himself into the front seat, pushed a pistol into complainant's side, and told appellant, who was still at the steering wheel, to turn right on 13th and left on the next street. While she was driving, one of the men in the back seat went through Poteat's pockets as the gun was held on him, seized his cash, the watch he had won in the game, two rings, his own watch, and then forced him to remove his shoes. About six blocks from the place where the trio entered the car, the vehicle stopped again. Appellant was told to change places with one of the men in the rear seat, Brazwell. The latter proceeded to drive approximately 10 more blocks to an alley near 5th and U Streets, where Poteat was put out of the car and admonished to run. One of the men emphasized this warning by firing a shot as the victim took off.

Although barefooted, Poteat eventually walked over to 9th and U Streets, where he encountered four policemen, and reported what had happened to him. While he was talking, the automobile in which he had been a passenger passed by. The officers pursued it in two separate scout cars to the corner of 13th and U Streets, where they were able to flag it down. Appellant and her three codefendants were in the vehicle along with another woman. The occupants were removed from the car. As the police started to question the men, the two women attempted to walk away, but were detained. Appellant identified herself to one of the arresting officers as "Barbara Johnson" and it was not until she was taken to police headquarters for booking that she admitted that her real name was Edwina Sinclair. An examination of the car brought to light a handgun wedged into the back seat, where appellant had been sitting. A search of the four persons Poteat had identified as having been in the car with him uncovered sums of cash ranging from $43.00 to $25.00 on each. Brazwell's pockets also contained the stolen rings.

The foregoing description of the events of the evening is based on the evidence offered by the prosecution. When the government rested, appellant moved for acquittal, and now assigns as error the denial of this motion. We perceive no error in this ruling. Although Poteat's description of appellant's role in the events which culminated in the robbery reveals the possibility of her being an unwilling collaborator, her subsequent behavior (including her failure to volunteer any information to the policemen who stopped the car, the attempt to sneak away, and the giving of a false name) provided grounds from which a jury could infer beyond a reasonable doubt that she was at least an aider and abettor.

Appellant made a similar motion when all the evidence was in and both sides had rested. The court was plainly correct in rejecting this motion, for this time her guilt was clearly established if the jury credited the testimony of another codefendant, Brazwell. The latter, who ultimately pleaded guilty to robbery, which resulted in the severance of his case from the others, testified that appellant and he were intimate friends; she had come to the dice game with him in McNeil's car, that after she had lost her money and watch in the game, she said she would like to get some of her money back, and that by prearrangement with McNeil she had later picked up his car and driven it, and that after the robbery, they had all driven downtown to buy liquor and narcotics with the proceeds. Soon thereafter, they asked the second woman to ride in the car. The other two defendants testified that Poteat was never in the car after they, Brazwell, and appellant left the scene of the dice game. Apparently the jury disbelieved them. Appellant did not take the stand.

It appears that Brazwell had given similar testimony to the grand jury. In this court, appellant argues that the trial was fatally tainted by the failure of the government to provide her defense counsel with a transcript of Brazwell's testimony on that occasion, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which makes it the duty of the prosecution to supply a criminal defendant with any exculpatory information in its possession prior to trial. But far from being exculpatory, Brazwell's version of the affair before the grand jury — as well as at the trial — obviously incriminated the appellant. Hence the government under the Brady doctrine had no obligation to furnish Brazwell's pretrial testimony to the defense.² We find nothing in the record to indicate that appellant had ever requested the grand jury minutes. Refusal to honor such a request has been deemed one of the "standards by which the prosecution's conduct. is to be measured." Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972).

A more serious issue is raised by appellant's contention that the record does not support the conviction and concurrent sentence under the kidnapping count, predicated upon a violation of D.C.Code 1973, § 22-2101, which provides, in part:

Whoever shall be guilty of, or of aiding or abetting in, seizing, confining, inveigling, enticing, decoying, kidnaping, abducting, concealing, or carrying away any individual by any means whatsoever, and holding or detaining, or with the intent to hold or detain, such individual for ransom or reward or otherwise . . . shall, upon conviction thereof, be punished by imprisonment for life or for such term as the court in its discretion may determine.

There was ample evidence from which the jury could decide that the defendants were guilty of "inveigling" or "enticing"³ the victim to enter the automobile; of "confining" and "carrying away" the complaining witness in such vehicle, both before and after they succeeded in robbing him; and of "holding" or "detaining" him.

Appellant argues, however, that this section of the Code should not be accorded its literal meaning, relying upon a doctrine developed by the New York Court of Appeals in People v. Levy, 15 N.Y.2d 159, 256 N.Y. S.2d 793, 204 N.E.2d 842 (1965) — a 4-3 opinion overruling a prior decision to the contrary in that jurisdiction.⁴ In Levy, the majority held that a state statute which defined the offense of kidnapping so broadly as to embrace "in its terms any restraint," should not be construed to sustain convictions for kidnapping where the restraint or detention was only incidental to the commission of such crimes as robbery, rape or assault.

According to this opinion,

[t]his definition could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. Some of the definitions could apply alike to kidnapping and abduction. It is common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into and left in another room or place.

It is unlikely that these restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words. [Id., 15 N.Y.2d at 164, 256 N.Y.S.2d at 797, 204 N.E.2d at 844.]

Had the majority opinion contented itself with the observation that legislative bodies in enacting statutes which define the offense of kidnapping — like the applicable provision of our Code — as covering such conduct as "confining," "detaining," or "holding," did not intend that every conviction for rape or robbery should also carry with it a separate conviction for kidnapping, we could accept this thesis. Obviously, the victims of such felonies are detained against their will while the...