United States v. Johnson, 23886

• Decision Date: 26 February 1973
• Docket Number: 72-1326.,24331,No. 23886,72-1271,23887,23886
• Citation: 475 F.2d 1297,155 US App. DC 28
• Parties: UNITED STATES of America v. Jerome JOHNSON, Appellant. UNITED STATES of America v. Samuel A. SMITH, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

155 US App. DC 28, 475 F.2d 1297 (1973)

UNITED STATES of America v. Jerome JOHNSON, Appellant.

UNITED STATES of America v. Samuel A. SMITH, Jr., Appellant.

Nos. 23886, 24331, 72-1271, 23887, 72-1326.

United States Court of Appeals, District of Columbia Circuit.

Argued January 18, 1973.

Decided February 26, 1973.

Frank J. Costello, Washington, D. C. (appointed by this Court for appellant in No. 72-1326), argued for appellants.

Stephen S. Millstein, Washington, D. C. (Appointed by the Court for appellant in Nos. 23,886, 24,331, and 72-1271).

Julius A. Johnson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and TAMM and WILKEY, Circuit Judges.

BAZELON, Chief Judge:

Smith and Johnson were tried jointly before a jury and convicted of four counts of robbery while armed and five counts of assault with a dangerous weapon. Johnson was also convicted of one count of carrying a pistol without a license.

On their appeal, the Government conceded that the trial court erred by failing to order sua sponte an identification hearing as required by our opinions in Clemons v. United States, 408 F.2d 1230, 133 U.S.App.D.C. 27 (1969), and Solomon v. United States, 408 F.2d 1306, 133 U.S.App.D.C. 103. It contended, however, that the error was harmless in the circumstances of this case. We disagreed and remanded the case for a hearing on the pre-trial identifications, reserving the other issues raised in the appeal.¹

A hearing was held on July 23, 1971, and the trial judge entered an order and opinion on March 14, 1972, holding that all pre-trial identifications had been proper and all identification evidence had been properly admitted. Both defendants have appealed from these rulings and have renewed their original appeals. New briefs have been submitted and the case has been reargued. Having carefully considered the judge's rulings on remand, and acknowledging his broad responsibility for resolving conflicts in testimony, we hold that the identifications were properly admitted under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

On the renewed appeal, we affirm the armed robbery convictions and the conviction for assault with a dangerous weapon on Albert Traylor, designated as count 13 in the indictment. But we reverse the convictions for assault with a dangerous weapon on each of the four individuals found to have been robbed, and we vacate all sentences imposed and remand for resentencing.

The indictment contained fourteen counts. The first twelve consisted of four sets of three offenses: robbery while armed, robbery, and assault with a dangerous weapon. Each set designated a different victim. The jury returned a verdict of guilty on each of the four counts of robbery while armed. It returned no verdicts on the simple robbery counts. And it returned a verdict of guilty on each of these four counts of assault with a dangerous weapon. Additionally, it returned a verdict of guilty on count 13, which alleged an assault with a dangerous weapon on a fifth individual, Albert Traylor, who was present at the scene of the offense but was not robbed. The fourteenth count is no longer before us. See note 1 supra.

In view of some variance in the wording of the relevant statutes, there has been some doubt in this circuit as to whether assault with a dangerous weapon, 22 D.C.Code § 502 (1967), is a lesser included offense of robbery, 22 D.C.Code § 2901 (Supp. V, 1972), while armed, 22 D.C.Code § 3202 (Supp. V, 1972). See Sutton v. United States, 434 F.2d 462, 472, 140 U.S.App.D.C. 188 (1970). We now hold that it is, and that this ruling is required by our previous decisions construing 22 D.C.Code § 3202 (Supp. V, 1972). See Wimbush v. United States, 154 U.S.App.D.C. ___, 475 F.2d 347 (1973); United States v. Benn & Hunt, 155 U.S.App.D.C. ___, 476 F.2d 1127 (1972). It follows that it was error to receive verdicts from the jury on counts 3, 6, 9 and 12.²

We also think that all of the remaining sentences must be vacated and the case remanded for resentencing. The trial judge entered a formal judgment sentencing appellant Johnson as follows:

A Ten (10) to thirty (30) years on counts 1, 4, 7 & 10.

B Three (3) years to nine (9) years on counts 3, 5, 6, 9 & 12, said sentences to run consecutively.

C Three (3) years to nine (9) years on count 14, to run concurrently with sentences in counts 1, 4, 7, 10, 3, 5, 6, 9 & 12.

He entered a formal judgment sentencing appellant Smith to:

A Nine (9) years to twenty-seven (27) years on counts 1, 4 & 10.

B Two (2) years to six (6) years on counts 3, 6, 9, 12, 13 said sentences to run consecutively.³

The consequences of this arrangement are extremely problematic. The initial difficulty we encounter is determining the total length of appellants' sentences. We are not told whether the sentences on the armed robbery counts, designated A here, are to be served concurrently with each other.⁴ We are told that the second group of sentences, designated B here, are to run "consecutively," but we cannot determine whether this means consecutively to each other, consecutively to the sentences designated A, or both.⁵ A similar problem exists with the sentence designated C here, but that conviction has been reversed and we need not address it.

Our second difficulty arises because the counts on which the trial judge imposed sentences do not fully correspond to the counts on which the jury returned verdicts of guilty. Appellant Johnson was sentenced on count 5, a simple robbery count on which the jury did not rule. He was not sentenced on count 13, which charged the assault with a dangerous weapon on Albert Traylor, despite the jury's guilty verdict on that count. Appellant Smith was not sentenced on count 7, which charged the armed robbery of James Lewis, despite the jury's guilty verdict on that count.

Our final difficulty is that appellant Johnson's oral sentencing, on December 23, 1969, does not correspond to the written judgment entered the same day. At the oral sentencing the trial judge imposed sentences on the same ten counts that the jury rendered guilty verdicts on. Even if we accept this as his true intent, however, we are still unable to determine which sentences run consecutively to, or concurrently with, which others. Nor can we explain the imposition of sentences on the four assault counts in view of the fact that the trial judge had instructed the jury to disregard them if it found appellants guilty on the corresponding armed robbery counts. See note 2 supra.

There is some indication that all of the above, which compel a remand for resentencing, may be attributed to the performance of defense counsel. We put aside the fact that defense counsels' failure to request a suppression hearing required a remand for an examination of the pre-trial identifications, as...