Graure v. United States, 2011 D.C. App. LEXIS 160

Graure was convicted of three AWIKWA counts, four ADW counts, mayhem while armed, two armed burglary counts, arson, and felony destruction of property related to a fire at the Good Guys strip club on Nov. 3, 2007.
Djordjevic, a club employee, was severely burned and later died; others escaped with injuries or survived without injury.
Evidence included appellant entering the club with a gasoline can and lighter, administrating gasoline around the front of the club, and igniting a fire with a lighter.
ATF testing detected gasoline on clothing and footwear recovered from appellant’s hotel room; appellant also had second-degree burns.
The trial court admitted certain identifications and out-of-court statements, limited cross-examination, and admitted non-testimonial excited utterances; the court sentenced appellant to 368 months and the court of appeals remanded for discrete mergers.
The court ultimately affirmed the convictions in all respects except for merging specific convictions: it held that aggravated assault while armed merges with mayhem while armed and that two burglary counts merge, remanding to vacate one of each pair; four ADW convictions were allowed to stand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Merger of ADW convictions	Graure argues all four ADW counts arise from a single act and must merge	United States contends ADW victims were distinct and injuries occurred to multiple individuals	ADW convictions allowed to stand; four separate victims support separate offenses
Admissibility of out-of-court identifications	Berhane and Kremer arrays were impermissibly suggestive	Suggestivity undermines reliability of identifications	Arrays not unduly suggestive; in-court Raucci identification admissible; reliability for jury to weigh
Admission of Djordjevic’s statements	Statements were hearsay and testimonial	Statements were excited utterances not subject to Confrontation Clause	Statements admissible as non-testimonial excited utterances
Cross-examination of Talebnejad	Limitations violated Sixth Amendment by curtailing bias exploration	Court properly limited cumulative/marginal relevance questioning	Court did not abuse discretion; sufficient cross-examination provided
Sufficiency of AWIKWA evidence	Insufficient proof of specific intent to kill directed at Djordjevic	Evidence supports specific intent through surrounding circumstances; other victims show intent to kill or create zone of harm	Evidence supports AWIKWA for Djordjevic and Palmer/Davaan; jurors could infer specific intent to kill

Johnson v. United States, 980 A.2d 1174 (D.C.2009) (excited utterance framework; spontaneity required)
Manson v. Brathwaite, 432 U.S. 98 (U.S. Supreme Court, 1977) (reliability of eyewitness identifications; jury weight if untrustworthy)
Bryant v. Michigan, 131 S. Ct. 1318 (U.S. Supreme Court, 2011) (testing primary purpose of interrogation in determining testimonial nature)
Ladner v. United States, 358 U.S. 169 (U.S. Supreme Court, 1958) (unit of prosecution for threats to multiple victims depends on context of statute)
Murray v. United States, 358 A.2d 314 (D.C.1976) (distinguishes attempted-battery vs. intent-to-frighten for merger)
Ruffin v. United States, 642 A.2d 1288 (D.C.1994) (merger when single act harms multiple victims; focus on victims harmed)
Speaks v. United States, 959 A.2d 712 (D.C.2008) (lecture on victim-focused purpose of cruelty statutes for multiple victims)
Williams v. United States, 569 A.2d 97 (D.C.1989) (assaults against individual victims in a group may be separate offenses)