Williams v. United States, s. 12–CF–1604

• Decision Date: 23 April 2015
• Docket Number: 12–CF–1504.,12–CF–1605,Nos. 12–CF–1604,s. 12–CF–1604
• Citation: 113 A.3d 554
• Parties: Furl J. WILLIAMS, Arthur Terence Bullock, and Marteese Norman, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

113 A.3d 554

Furl J. WILLIAMS, Arthur Terence Bullock, and Marteese Norman, Appellants

v.UNITED STATES, Appellee.

Nos. 12–CF–1604

12–CF–1605

12–CF–1504.

District of Columbia Court of Appeals.

Argued May 15, 2014.

Decided April 23, 2015.

Peter H. Meyers, Washington, DC, for appellant Williams.

Abram J. Pafford, Lynchburg, VA, for appellant Bullock.

Daniel M. Gonen, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant Norman.

David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello and Holly Shick, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and REID, Senior Judge.

Opinion

REID, Senior Judge:

In these appeals, appellants Furl J. Williams, Arthur Terence Bullock and Marteese Norman, challenge their convictions of robbery¹ on various grounds—(1) insufficiency of the evidence (Mr. Williams and Ms. Norman), (2) erroneous denial of a motion to sever (Mr. Williams and Mr. Bullock), (3) erroneous denial of a motion to suppress (Mr. Williams and Mr. Bullock), and (4) abuse of discretion in dismissing a juror (Ms. Norman). Because of our disposition, we consider only the first issue. We hold that the evidence was insufficient to convict Mr. Williams, Ms. Norman and Mr. Bullock of robbery because the government's proof failed to establish at least one of the elements of that offense beyond a reasonable doubt. Consequently, we reverse appellants' robbery conviction.

FACTUAL SUMMARY

The government presented evidence showing that Loi Chau, a forty-nine year-old man, worked the 2:30 p.m. to 11:00 p.m. shift at the Marriott Hotel on Connecticut Avenue, in the Northwest quadrant of the District of Columbia.² Mr. Chau testified as follows. After getting off from work on the night of February 24, 2012, he walked to the nearby Metro Elevator. As he “was pushing the button, waiting for the elevator to come up, [he] saw three people walk to him, and [he] did not know these people. And [he] ke[pt] pushing the button, waiting for the elevator to come up.” The prosecutor asked, “[W]hat did those three people look like?” Mr. Chau responded, “They are three black Americans. I don't know them, so I keep pushing the button, waiting for the elevator.” The people did not say anything but they “look[ed] back” at him and then approached Mr. Chau. They were about three to four feet from Mr. Chau, and he could “[n]ot quite touch them.” Mr. Chau “was afraid that they had guns or knives,” so he “took out [his] wallet and gave it to them and they left.” Although he did not see any guns or knives, he “was afraid they [had] guns and knives because at that time it was very dark, and [he] was the only one there.” He repeatedly said he was afraid the people had (a) gun(s) and/or (a) knife/knives. But on cross-examination Mr. Chau stated that the three people did not threaten him or make him afraid. See note 5, infra.

When the three people approached him two of them said, “What, what, what.” Mr. Chau interpreted these words to mean, “do I have any money.”³ He did not have any money. His wallet contained his driver's license, Metro card, bank cards, union cards, and business cards. Initially Mr. Chau saw the faces of the three people when they were by the elevator where there was a light, but when they walked away he could only see their backs. Mr. Chau called 911 and reported that the people “took [his] money and they walked away.” Mr. Chau spoke only “a little bit” of English and another man on the street helped him with the 911 call.⁴ Mr. Chau followed the people who had his wallet so that he could retrieve his Metro card. He was about three blocks behind the three individuals but never lost sight of them. Another man also followed the three young men. Later, the police stopped the three people and Mr. Chau identified each of them.⁵

On the night of February 24, 2012, Metropolitan Police Department (“MPD”) Officer Kenneth Boone, a technician, had completed an assignment and was driving southbound on Connecticut Avenue shortly after 11:00 p.m., in an unmarked car and plain clothes. While he was waiting for the traffic light to turn green, he saw the backs of what appeared to be “three black males ... in front of [another] male.” He thought that the single male was “not free to move forward, he didn't have his freedom of movement.” Officer Boone saw the three males walk away northbound on Connecticut Avenue, and he proceeded to where the single male was standing, in order to check on him. The man, later identified as Mr. Chau, looked “[k]ind of ... confused, kind of shocked.” Mr. Chau said, “they took everything.” Officer Boone kept his eye on the three males who were walking north on Connecticut Avenue and followed them, and contacted the police dispatcher on his cell phone. He advised the dispatcher that the three men were wearing “black jackets and ... black hats.” He followed the three men until they reached a “7–Eleven” store where they stopped to speak with two men who were seated, before continuing up Connecticut Avenue. One man slowed down at a bus stop and the other two turned off onto and down a walkway near an apartment building. The two men eventually turned around and came back to Connecticut Avenue as the police arrived. Officer Boone introduced himself to the arriving officers and then left the scene.

Samuel Hart testified that he was coming up a Metro escalator on Connecticut Avenue when he “noticed like a Chinese [or] Korean [man] with three suspects standing in front of him.”⁶ He was about thirty feet away from Mr. Chau and the three young people. One person had on a black hoodie; one had on red, white and black sneakers; two had dreads; and they had on dark jeans. One of the Asian man's legs appeared to be short and the three persons around him “looked suspicious at a certain time on Connecticut Avenue” because “a majority of rich middle class people live” on Connecticut Avenue and people with hoodies and “all dark clothing” are not seen after eleven or twelve o'clock. He saw three black men, one of whom was “light-skinned.” One person was “observing the scenery” or “looking around to see if anybody else can see it.” Two of the men spoke with the Asian man and “one took the wallet.” The three men walked up Connecticut Avenue, and Mr. Hart asked the Asian man whether something was wrong. The man stated that he “just got robbed his wallet,” and Mr. Hart told him to call 911. Mr. Hart also called 911 and then followed the three men. When the men reached the area of a “7–Eleven” store and an apartment building, Mr. Hart saw the one with the red, black and white sneakers, hat and black hoodie veer off through a cut near the apartment building and then “run[ ] out to be with the other two.” Mr. Hart flagged down the police when he saw their cars.

Mr. Hart stated on cross-examination that two of the men had hair in dreadlocks, and one of them wore red, white and black shoes; and that the third person had a shorter haircut and had a hat on.⁷ He testified before the grand jury that the man with the red, white and black shoes took Mr. Chau's wallet. He “assumed” Mr. Chau was being robbed “[b]ecause he kept yelling ‘help.’ ” He denied that he had a prior possession of cocaine conviction in 1999.⁸ He also initially denied that he had consumed two 12–ounce cans of beer on the evening of the incident. He noted that since the incident he had had surgery for a brain tumor.

Officer Walter Pankowski testified that he was on duty in an unmarked police car with other officers when he heard “a call for a robbery that had just occurred.” The officers saw an Asian male waving them down as they approached the 3000 block of Connecticut Avenue. Mr. Chau was “excited” and said, “they took my wallet, they took my wallet.” Mr. Chau was walking toward the bus stop saying, “up there, up there, up there.” Officer Barcus had stopped Mr. Bullock; and when Mr. Chau reached the place where Mr. Bullock was standing, he stated, “He took my money, it was him, it's him.”⁹ Mr. Williams and Ms. Norman were in “close proximity” to Mr. Bullock.

Officer James Legasi responded to the scene and stopped Ms. Norman. She had on a black hat. He handcuffed Ms. Norman, and when he began to pat her down, she told Officer Legasi that she was female and her name was LaKeisha Wilson. Officer Legasi also recovered the clothing that Mr. Williams was wearing on the night of the incident and the clothing matched the lookout description for one of the suspects. A Metro smart trip card was inside one of Mr. Williams's pockets. Officer Legasi identified Mr. Williams in court. In addition, Officer Legasi found a green credit card in the 2700 block of Connecticut Avenue that bore Mr. Chau's name, as well as Mr. Chau's wallet.¹⁰ However, Officer Legasi also denied that he had found a wallet.

Officer Adam Crist proceeded to the 3000 block of Connecticut Avenue with Officer Legasi. They saw Mr. Williams and Ms. Norman standing together. Officer Crist stopped Mr. Williams. He then canvassed the Connecticut Avenue area near the stop, found a wallet in the bushes in the 2700 block, between the sidewalk and the apartment building, and secured the wallet without touching it. On cross-examination, he declared that the lookout was for “three black males wearing all dark jackets.”

MPD Detective Keith Tabron investigated the incident involving Mr. Chau. When he arrived on the scene he interviewed Mr. Chau and took him back to the place where he first saw the defendants. Detective Tabron testified that he had “[j]ust a very little” trouble understanding Mr. Chau, and that he posed “[v]ery short” and “very narrow,” direct questions to him. He also conducted an identification show-up procedure in the area where the defendants were stopped. He was seated...