Winestock v. U.S., 13775.

• Decision Date: 01 April 1981
• Docket Number: No. 13775.,13775.
• Citation: 429 A.2d 519
• Parties: Russell WINESTOCK, Appellant, v. UNITED STATES of America, Appellee.
• Court: D.C. Court of Appeals

429 A.2d 519

Russell WINESTOCK, Appellant, v. UNITED STATES of America, Appellee.

No. 13775.

District of Columbia Court of Appeals.

Argued November 4, 1980.

Decided April 1, 1981.

Greta Van Susteren, Washington, D. C., Stuart Stiller Fellow, with whom William Genego and Jerry Kristal, Georgetown Legal Intern Program, Washington, D. C., were on brief, for appellant.

Ronald Dixon, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Michael W. Ferrell, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, NEBEKER, Associate Judge, and SCHWELB,^* Associate Judge, Superior Court of the District of Columbia.

SCHWELB, Associate Judge:

Following a jury trial, appellant Russell Winestock was convicted of armed robbery, D.C.Code 1973 § 22-2901, -3202; assault on two police officers with a dangerous weapon, D.C.Code 1973 § 22-505(b); and the unlawful possession of a dangerous drug, D.C.Code 1973 § 33-402(a). On appeal, he seeks a new trial, arguing that the motions judge improperly denied his pretrial motion for two separate trials based on an alleged misjoinder of offenses, and that the trial judge committed reversible error by responding to notes from the jury outside the presence of appellant and his counsel. Finding that the offenses were properly joined and that, although the trial judge committed error in his communication with the jury, that error was harmless beyond a reasonable doubt, we affirm.

I

This appeal arises from the prosecution of appellant for two separate incidents of armed robbery which occurred within one hour or less of each other a few blocks apart in the U Street area of Northwest Washington. The victim of the earlier robbery was Melvin Edmondson. The individuals robbed in the second incident were Norman Tyler and Joseph Atkinson. Appellant was charged with both of these offenses in a single 14 count indittment. Counts 1-3 charged him with the armed robbery of Edmondson and certain lesser included offenses. Counts 4-14 concerned the Tyler-Atkinson robbery and offenses that arose out of that incident.

Among the pretrial motions filed by the defense was a "Motion to Compel Separate Trials Because of Misjoinder." Appellant contended that counts 1-3 of the indictment were improperly joined for trial with counts 4-14, as they did not meet the requirements of Super.Ct.Cr.R. 8(a) that they be of "the same or similar character" or parts of a "common scheme or plan." In the alternative, appellant asked for a severance pursuant to Super.Ct.Cr.R. 14. On October 17, 1977, the motion for separate trials was denied by the Honorable Fred B. Ugast. On January 31, 1978, appellant went to trial before a jury on the entire 14 count indictment, with the Honorable Fred L. McIntyre presiding.

Appellant presented separate defenses to the two incidents. He denied being present or in any way involved in the Edmondson robbery. He presented a defense of duress or coercion to the Tyler-Atkinson charges, admitting that he was present, but contending that he was a victim rather than a willing participant in the offense.

The trial was completed on February 1, 1978, and jury deliberation began on the same day, continuing to February 2, 1978, when the jury reached agreement on five counts. Appellant was found guilty of the armed robbery of Norman Tyler and Joseph Atkinson, assault on two police officers with a dangerous weapon, and unlawful possession of a narcotic drug, but not guilty of the armed robbery of Melvin Edmondson. On July 19, 1978, he was sentenced to concurrent terms of imprisonment of four to sixteen years for each armed robbery, one to three years for the assaults on police officers, and not more than one year for unlawful possession. This appeal followed.

II

The prosecution introduced evidence at the trial tending to show that on May 10, 1977, between 11:15 and 11:30 p. m., Melvin Edmondson was on his way home. As he approached the corner of 12th and U Streets, N.W., he encountered two men and a woman. One of the trio asked Edmondson for a cigarette or a light, and as Edmondson paused, one of the males, a short man, announced "this is a stick-up," "give it up," or something to that effect. The command for money was made by the short man, who was holding a gun. The other male, a taller man, approached Edmondson and removed his money, a watch and a ring. After the robbers obtained their loot, and after one of them had admonished Edmondson not to move, they fled the scene. They were last seen going in the direction of Northwest T Street. Edmondson found a police officer, Donald Jackson, on U Street and told him that he had been robbed. He later identified appellant from a photo array, at a lineup, and at trial, as the taller of the two robbers.

Between 11:30 p. m. on May 10, 1977 and 12:30 a. m. on May 11, Norman Tyler and Joseph Atkinson were walking in the area of 15th and U Streets, N.W., about three blocks from the locale of the Edmondson incident, when they were approached by two men.¹ The shorter of the two held a pistol and demanded money, saying "this is it," "we want money," or words to that effect. The short man told Tyler and Atkinson to walk into a nearby alley, but Tyler refused and the short man pushed him. Tyler and Atkinson were compelled to face a wall and were searched. The robbers took money and keys from Tyler and keys from Atkinson. Tyler's keys were attached to a key ring which carried his name and address. As the robbery was proceeding, someone yelled "freeze," and the robbers began to "fade away" deeper into the alley. Two police officers, David Wright and James McManus, arrived on the scene and attempted to stop the robbery in the alley. They were fired upon but not injured.

When the shooting was over, Tyler and Atkinson approached the police officers and told them what had happened. The officers then proceeded with the complainants to 15th and T Streets, just around the corner from the robbery. When they arrived, appellant was being pulled from underneath a parked car by two other police officers, Grace Hennessey and Duane Anderson. Appellant was identified as the tall man whom McManus and Wright had observed running from the alley.

Officers Hennessey and Anderson, after being alerted by radio that an armed robbery was in progress, proceeded to 14th and T Streets. When they arrived with their emergency lights flashing, they saw appellant running alongside a moving car. He attempted unsuccessfully to get into the car by reaching for a door handle. Appellant was then observed diving underneath a parked car. The officers approached the parked car and pulled appellant out. Hennessey recovered a manila envelope, keys, and money from the underside of the parked car. Heroin was found in the manila envelope. Tyler's keys, with his name and address, were found in appellant's coat pocket. After his arrest, appellant was identified by the complainants from photographs and at a lineup.

Appellant was the sole witness for the defense. He denied robbing Edmondson and provided his own version of the incident relating to Tyler and Atkinson. He testified that on May 10, 1977, at approximately 11:45 p. m., he was on his way to 9th and U Streets, N.W., to catch a bus home. As he approached 15th and U Streets, a short man with a gun forced him and two men later identified as Tyler and Atkinson into an alley. The short man ordered the complainants to face a wall in the alley and told appellant to search them. Appellant removed money and keys from Tyler's pocket, and the short man took the money. Before the short man could take Tyler's keys from appellant, however, a car pulled up. Two people came out of the car and the short man began to fire at them. Appellant panicked and ran. As he did so, he saw a car that had been parked in the alley. Appellant, who was attempting to avoid being shot, ran past this car onto Carolina Street.

He saw the car again, but did not attempt to enter it. At 15th and T Streets he jumped under a parked car because, as he put it, he "didn't know what was going to happen." The police removed him from under the car and found Tyler's keys in his pocket, where he had put them because he was running and "didn't place any value on them." He remembered that the police picked something up from the parked car but he did not know what that object was. Appellant explained to the police that he had been robbed and that he had run when the gunfire started because he was afraid for his life.

Appellant does not contend, nor could he plausibly do so, that the prosecution's evidence, if believed by the jury, was insufficient to support a conviction for the robbery of Tyler and Atkinson. He claims, however, that his conviction rests upon a misjoinder of offenses and an improper communication by the trial judge to the jury.

III

A. Appellant's first contention on appeal is that the motions judge erred in denying his pretrial motion for separate trials. He claims that the two armed robberies were improperly joined under Super. Ct.Cr.R. 8(a). Relying primarily on Tinsley v. United States, D.C.App., 368 A.2d 531 (1976), appellant asserts that in this jurisdiction, the propriety of joinder of offenses under Rule 8(a) is determined by a reciprocal admissibility test, and that joinder is permitted only where evidence of one offense would be admissible at a trial of the other under the rule of Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964).² Appellant contends that the only possible basis under Drew for permitting evidence of each of the two robberies to be admitted at the trial of the other would be such evidence would be relevant to the identity of the person who committed the crime. He argues that in the present case the similarities between the two offenses were substantially outweighed by the differences between them³ and were not sufficiently "unusual" or "distinctive," see Tinsley, supra, at 534,...