Tornero v. United States, 11–CF–1723.

• Decision Date: 03 July 2014
• Docket Number: No. 11–CF–1723.,11–CF–1723.
• Citation: 94 A.3d 1
• Parties: Emero S. TORNERO, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

94 A.3d 1

Emero S. TORNERO, Appellant,

v.UNITED STATES, Appellee.

No. 11–CF–1723.

District of Columbia Court of Appeals.

Argued Jan. 9, 2014.

Decided July 3, 2014.

Daniel Gonen, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

Allen O'Rourke, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, Maia Miller, and Suzanne C. Nyland, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and BLACKBURNE–RIGSBY, Associate Judges, and KING, Senior Judge.

BLACKBURNE–RIGSBY, Associate Judge:

Following a jury trial, appellant Emero Tornero was convicted of various offenses stemming from a series of attacks against Maryland and Virginia cab drivers who were driving in the District of Columbia.¹ On appeal, appellant claims the trial court abused its discretion by: (1) refusing to instruct the jury to restart deliberations and correct its earlier statement describing appellant's trial counsel's closing argument as “improper,” once it reopened closing argument; (2) denying appellant's severance motion on the grounds of mutual admissibility to prove identity; and (3) admitting a BB gun discovered during appellant's arrest into evidence to prove a felony destruction of property (“DP”) charge (Count 13). Appellant also claims that the trial court plainly erred when it sentenced appellant to fourteen months for misdemeanor DP (Count 3), and that his convictions for ADW and AAWA merge. We determine that appellant's first two claims lack merit, but agree that the trial court committed reversible error in admitting the BB gun on one of appellant's destruction of property charges (Count 13). We also conclude that the trial court erred in its sentencing on the misdemeanor DP (Count 3) offense, and that his convictions for AAWA and ADW (Counts 1 and 2) merge. We therefore remand to the trial court to resentence appellant for his misdemeanor DP conviction (Count 3), and to vacate his felony DP conviction (Count 13) and the lesser-included ADW conviction (Count 1). In all other respects, we affirm.

I. Factual Background

A. The Charged Incidents

Appellant carried out a number of attacks in 2008 against Maryland and Virginia-licensed cab drivers who were operating in the District of Columbia. On January 27, 2008, around 3:15 a.m., appellant pulled up in a black or gray cab with D.C. plates next to Mr. Dowlatshahi, a Maryland-licensed cab driver, while he was stopped on Connecticut Avenue, Northwest (“N.W.”), Washington, D.C. From Mr. Dowlatshahi's passenger side, appellant said to Mr. Dowlatshahi: “So are you picking up my fare,” while Jose Moran sat in the passenger seat.² After appearing to “do something” to Mr. Dowlatshahi's tires, appellant announced: “[Y]ou have a flat tire.” While Mr. Dowlatshahi pulled over to inspect the damage, appellant “punched holes in both of [the driver's side] tires” and started to drive off, but then reversed “with great speed ... to run [Mr. Dowlatshahi] over.” Mr. Dowlatshahi threw himself to the right to avoid being hit by appellant's cab.

On February 9, 2008, around 2:45 a.m., Mr. Weldegerish, a Maryland-licensed cab driver, dropped off two passengers on the 1500 block of Connecticut Avenue, N.W. Appellant, who was on foot, cut and deflated the two rear tires of Mr. Weldegerish's cab that bore Maryland plates. While investigating what happened, Mr. Weldegerish asked appellant “what happened here,” prompting appellant to “brandish[ ] his knife toward” Mr. Weldegerish's stomach or abdomen. Appellant then drove off in a white D.C. cab “at high speed.” On April 20, 2008, at around 3:00 a.m., appellant struck the rear of Mr. Weldegerish's cab at the intersection of New Hampshire Avenue and Q Street, N.W., with a D.C. cab. When Mr. Weldegerish stepped out of the cab, appellant struck him with the cab on his thighs from behind, with what Mr. Weldegerish felt was “the intention [ ] to kill [him], to lay [him] flat.” Appellant then drove off “very fast[,]” to the point where the license plate fell as appellant drove away.³

On June 1, 2008, at approximately 3:00 a.m., appellant, driving a D.C. cab, pulled up to the cab of Mr. Jean, a Maryland-licensed cab driver, and intentionally deflated both of his passenger tires. Appellant asked Mr. Jean: “[W]hat are you doing in D.C.?” and also inquired whether Mr. Jean was “trying to pick up passengers in D.C.” While inspecting his tires, Mr. Jean told appellant that “it look[ed] like [appellant] punctured [his] tire,” at which point appellant made a U-turn, and slashed the tires on Mr. Jean's driver's side with a knife. Appellant drove off when Mr. Jean threatened to call the police, but soon after returned and drove “very rapidly” at Mr. Jean, who jumped onto a parked car to avoid being struck. Two bystanders, Heather Jones and Nheyreth Rivero, testified at trial that they witnessed the incident. Appellant and the government dispute whether Mr. Rivero was shown a photo array by a Metropolitan Police Department (“MPD”) detective and made a subsequent identification. Mr. Rivero first testified that he was given such an opportunity, but later retracted his statement.

On July 27, 2008, at 11:30 p.m., while stopped at the intersection of 11th and M Street, N.W., Mr. Ladane, a Virginia-licensed cab driver, heard his rear windshield shatter. Mr. Ladane noted at trial, however, that when he heard his windshield shatter, he noticed a cab behind him; although he did not see what shattered his windshield, Mr. Ladane observed appellant's arm hanging out of the window of a silver or gray D.C. taxi, which he drove quickly in reverse after the incident.⁴ No physical evidence was recovered explaining what broke Mr. Ladane's windshield. Mr. Ladane then followed appellant into an alley to get his tag number, but eventually drove away when he saw appellant open his trunk.

On August 16, 2008, around 3:00 or 4:00 a.m., appellant again drove up to Mr. Ladane's cab at the intersection of K and 17th Street, N.W., “very fast[,]” and struck the driver's door of Mr. Ladane's cab three times with a blue Presidential D.C. cab. Then, on March 16, 2009, Mr. Ladane saw appellant at the intersection of 14th and K Street, N.W., driving a green “Swift” D.C. cab. Mr. Ladane informed an MPD officer about the incident, and appellant fled “very fast” from the officer, with “tires screeching,” which caused the officer to “jump aside” to avoid being struck. That same night, Mr. Ladane observed appellant at an Alexandria, Virginia pancake house, next to a Days Inn motel, and informed Alexandria police. The police raided one of the rooms, where they first arrested appellant's brother and then appellant, who was discovered hiding in the bathroom, and recovered multiple sets of D.C. license plates and car keys, taxi meters, a modified screwdriver, and mail in appellant's name. ⁵

The victim's descriptions of appellant at trial varied from vague to specific: Mr. Dowlatshahi—“black,” with “curly hair,” and a “[r]ound face,” about twenty-five or twenty-six years old, and possibly clean-shaven, but he had only seen him for a split second; Mr. Weldegerish—“dark complected male, approximately thirty-five years [old], clean-shaven, [with] short brown hair [,]” although he was not looking at the assailant because he was “shocked,” but later recognizing appellant as the assailant from the February 9, 2008 incident; Mr. Jean—black, with a dark complexion that was not as dark as Mr. Jean's, based on seeing appellant's face “very clearly[,]” but later describing appellant as “fair[,]” having “skin [that] is lighter than [Mr. Jean's]” while looking at appellant at trial; Mr. Ladane—gap in his teeth and looked “Ethiopian” based on ability to observe appellant's face “very clear[ly]” once in the alley during the first incident, and recognizingappellant as the same D.C. cab driver behind him when his rear windshield was shattered. ⁶ Appellant's trial counsel highlighted that appellant had a goatee since before the attacks and a scar on the left side of his face, neither of which was described by any of the victims.⁷

In a separate incident, on September 13, 2008, an MPD officer stopped and arrested appellant, who was driving a yellow D.C. Dial cab, with a punched ignition, on the corner of 14th and Randolph Street, N.W. MPD officers recovered a BB gun with CO2 cartridges from the cab pursuant to appellant's arrest.

B. Trial Court's Denial of the Motion for Severance

Prior to trial, appellant made a motion to sever the charges relating to the separate incidents against the out-of-state cab drivers on the basis that they had been improperly joined, given that the evidence of the various offenses would not be mutually admissible at separate trials under Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964),⁸ and that such joinder would result in prejudice to the defense. The Honorable Robert I. Richter, who presided over the original motion, denied the motion, agreeing with the government that there was a “unique quality to the set of facts” underlying each of the crimes, which would make these admissible under Drew's “signature crime exception as a means of proving identity.” He also noted that “the similarities are pretty stark [among the incidents], and could lead someone to believe that there's one person doing all this.”

At the close of the evidence, the defense renewed its motion to sever, arguing that “all of the incidents are different such that it doesn't give rise to a unique signature crime or a common scheme or plan[,]” specifically pointing to the assault on Mr. Ladane as “a complete outlier” because it did not “involve any slashing of tires” or “involve any dispute over fares.” The government rebuffed the defense's argument claiming that the incidents were probative of identity because each shared the common quality...