West v. US, 89-1212.

• Decision Date: 13 November 1991
• Docket Number: No. 89-1212.,89-1212.
• Citation: 599 A.2d 788
• Parties: Ronald E. WEST, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

599 A.2d 788

Ronald E. WEST, Appellant, v. UNITED STATES, Appellee.

No. 89-1212.

District of Columbia Court of Appeals.

Argued April 1, 1991.

Decided November 13, 1991.

Calvin Steinmetz, Washington, D.C., appointed by this court, for appellant.

Bernadette C. Sargeant, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Roy W. McLeese III, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, STEADMAN, Associate Judge, and MACK, Senior Judge.

STEADMAN, Associate Judge:

Ronald West appeals from his convictions on nineteen counts arising out of four separate incidents over a two-month period in the spring of 1988. In each case, a woman was robbed at gunpoint of her Automatic Teller Machine ("ATM") bank card or her VISA card. In three of the cases, the woman was sexually molested. In one of the cases, the woman was killed. Appellant raises two principal arguments on appeal: 1) that the offenses should not have been joined, or, if properly joined, should have been severed; 2) that his dual convictions for kidnapping and rape in each of two single incidents should have merged.¹ We are unpersuaded by these arguments and accordingly, subject to the vacation of the two felony-murder convictions,² affirm.

I: The Four Incidents

The Raley Incident: On March 30, 1988, complainant Raley parked on the bottom level of the parking garage at 3251 Prospect Street, N.W. Appellant had worked as a parking attendant there some years previously. She saw appellant walking along the far wall of the garage and then enter the stairwell. She waited a few minutes and then entered the stairwell. As she approached the third door leading to the stairwell, appellant stood there holding a gun in her face. He told her to lie face down as he removed cash and her Automatic Teller Machine ("ATM") card from her purse, and obtained her personal identification number for use of the card. He then raped her, took her jewelry, told her to count to a hundred, and departed. She obeyed his instructions, and then fled for help. Appellant was filmed using Raley's ATM card at two banks.

The Wortman Incident: On April 19, 1988, complainant Wortman was approached by appellant wearing a cap and glasses with a gun as she descended the stairwell to the bottom level of the parking garage at 1225 Connecticut Avenue, N.W. Appellant had also worked there as a parking attendant. She was told to lie on the ground. Appellant put a gun to her head and asked for her bank number. She said that she did not have an ATM card. She did have a VISA card which was stolen by appellant. He then fled. Ms. Coalter, a concierge in the building, had seen appellant around noon that day and then again on the elevator heading toward the basement minutes before Wortman was accosted. Appellant was wearing a baseball cap and glasses. Coalter identified appellant from a line-up photograph and at trial. On the same day as the robbery, seven attempts were made to withdraw money using the VISA card, but no photographs were taken.

The Butler Incident: On May 8, 1988, a Sunday, complainant Butler was sitting in her car near the intersection of Connecticut Avenue and N Street, N.W., looking at a map. She was approached by a man who, according to her testimony, "looked very much like" the appellant. Appellant asked her something about her car and then, noticing that Butler was looking at a map, gave her directions. He told her of a shortcut down an alley and offered to show it to her if she would give him a ride down the alley. Butler testified that she thought appellant was a security guard.³

Once in the alley, appellant pulled a gun out of his jacket and pointed it at Butler. He told her to drive to the end of the alley which was in fact a dead end. He took fifty dollars and her ATM card from her purse and obtained her personal identification number for the card's use. Appellant then went around to the driver's side of the car and forced Butler to perform oral sodomy. He then ordered her to get out of the car and to lie face down across the hood as he raped her. Appellant then told her to get back in the car and wait for him as he left with her keys. Butler retrieved a spare key from her purse and drove herself to the George Washington Hospital emergency room. Appellant was filmed using Butler's ATM card to withdraw money from two separate bank cash machines.

The Fest Incident: On May 19, 1988, Dawn Fest was living with her fiance at 3251 Prospect St., N.W. She usually helped her fiance, who worked for the Washington Post Company, deliver papers in the morning and was expected to do so the morning of May 19. On that morning between six and seven o'clock, Alphonso Soriano, the maintenance man in the parking garage at 3251 Prospect, saw appellant outside of the garage, holding a "two-way radio."⁴ Soriano knew appellant when appellant was employed as an attendant in the garage.

The nude body of Dawn Fest was found the next day in the trunk of her fiance's Volvo in the 4400 block of Hunt Place, N.E., approximately a block from appellant's girlfriend's house where he was arrested. The cause of death was two close range gunshot wounds to the head. On May 19, appellant was photographed by a surveillance camera at a bank attempting to use Fest's ATM card.⁵

II: Joinder and Severance

A.

Appellant first contends that the crimes were improperly joined under Super.Ct.Crim.R. 8(a). Rule 8(a) provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Our review of joinder determinations, being a question of law, is de novo. Roper v. United States, 564 A.2d 726, 729 (D.C.1989).

Charges are "similar in character" if they "allege the same general kinds of crimes." Winestock v. United States, 429 A.2d 519, 524 (D.C.1981). Further, there is a "`presumption in favor of joinder of offenses of a similar character.'" (James) Arnold v. United States, 511 A.2d 399, 404 (D.C.1986) (citation omitted). Here, the major counts in the indictment clearly allege the same "general kinds of crimes," involving the armed attack of a female, and as such were properly joined. Ray v. United States, 472 A.2d 854, 857 (D.C.1984). Furthermore, as the government's evidence revealed, the incidents occurred within a reasonable proximity of one another, both in time and location. Each victim was also attacked immediately after exiting or entering her car and all four incidents occurred in or near parking garages where appellant formerly was employed. Each of the surviving victims also described their assailant as carrying a dark-colored handgun. Lastly, each victim was robbed of her ATM or VISA card.⁶

Appellant argues that only the facts in the indictment may be considered for joinder purposes, citing Winestock: "`when a pretrial motion claims misjoinder of ... offenses, the court ordinarily determines the motion on the basis of the indictment alone.'" Winestock v. United States, supra, 429 A.2d at 524 (quoting 8 MOORE'S FEDERAL PRACTICE ¶ 8.06.3, p. 8-39 (1980)). We think this is an overreading of the quoted language, which uses the qualifier "ordinarily." A trial court ordinarily will make a decision based on the indictment and we believe that such a determination could have been made here. However, it is not impermissible to consider other facts in determining the joinder issue. In Winestock itself, the court noted that the offenses alleged "were closely related in time and place." Id. at 524. The precise place in which an alleged offense occurred is not a required part of indictments. See United States v. Perry, 235 U.S.App.D.C. 283, 288, 731 F.2d 985, 990 (1984) ("Subsequent pre-trial representations ... may suffice equally to the indictment to satisfy Rule 8(b)").

B.

Though joinder was proper, appellant argues that the offenses should have been severed pursuant to Super.Ct.Crim.R. 14. Rule 14 provides in pertinent part that: "If it appears that a defendant ... is prejudiced by a joinder of offenses ... in an indictment or information or by such joinder for trial together, the Court may order an election or separate trials of counts ... or provide whatever other relief justice requires." Defendant's motion to sever was conimitted to the sound discretion of the trial court and denial of such a motion will be reversed only upon a showing of the "most compelling prejudice." In re S.G., 581 A.2d 771, 776 (D.C.1990). Such prejudice may arise in the difficulty a defendant may have in presenting separate defenses, or from the jury inferring criminal disposition from some charges or cumulating the evidence and finding guilt when it would not have had the evidence been presented separately. Cox v. United States, 498 A.2d 231, 235 (D.C.1985). Therefore offenses of a similar character should be severed "`unless (1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trials of the others.'" Id. (quoting Bridges v. United States, 381 A.2d 1073, 1075 (D.C.1977), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978)). The trial court here denied the severance motion on both grounds. We need not explore the issue of mutual admissibility, because we think the trial court's denial can be sustained on the first ground alone. Hollingsworth v. United States, 531 A.2d 973, 983 (D.C.1987).

We note at the outset that the trial court instructed the jury that the appellant was charged with separate offenses each of which the government was required to prove beyond a...