MYRON O. GRAY v. UNITED STATES, 2017 D.C. App. LEXIS 52

Background

On Nov. 9, 2013, Myron Gray entered a mini-market, performed a series of bizarre acts (gestures, removing a baby bottle, touching customers), then grabbed Rosalba Hernandez’s wallet from the counter, removed $7, and left; surveillance video and witness testimony were admitted at trial.
Victims testified Gray touched/struck foreheads and made a death threat to the store owner shortly after the taking; Gray has a history of psychiatric illness but did not pursue an insanity defense.
Gray was convicted of robbery, threats, and assault; he requested a jury instruction on second-degree theft as a lesser-included offense of robbery, which the trial court denied.
Gray appealed, arguing the court should have instructed on theft, that robbery lacked sufficient evidence, and that the court interfered with his right to testify by commenting on a positive PCP test.
The D.C. Court of Appeals held the trial court erred by refusing the lesser-included-offense instruction (requiring reversal of the robbery conviction), found the robbery evidence sufficient if viewed for the government, and rejected the claim of coercion regarding Gray’s decision not to testify.

Issues

Issue	Plaintiff's Argument (Gray)	Defendant's Argument (Government)	Held
Whether the jury should have been instructed on second-degree theft as a lesser-included offense of robbery	A reasonable jury could find Gray committed assault and a separate, spontaneous theft (no conscious use of force to effectuate the taking)	The assaults and the taking were part of one sequence; a jury could not rationally find theft without robbery	Reversed robbery conviction for failure to give the theft instruction (lesser-included instruction required and error was not harmless)
Whether evidence was sufficient to sustain robbery conviction	The record lacks proof Gray purposefully used force to separate victim from purse	Surveillance and testimony support inference Gray used force or put victims in fear to obtain the money	Evidence was sufficient under Jackson standard; robbery conviction could be supported (but reversal required on instructional error)
Whether trial judge’s comment about a positive PCP test coerced Gray’s waiver of the right to testify	The judge’s comment suggested impeachment topics and undermined his choice to testify	Comment was brief, phrased as a question, and Gray had overnight to consult counsel before waiving	No reversible plain error; waiver found voluntary after colloquy
Harmlessness of failing to instruct on theft	Instructionless verdict forced jury into all-or-nothing choice; counsel argued the separate-act theory at trial	Jury rejected defense theory in verdict; counsel’s argument made instruction unnecessary	Failure to instruct was not harmless: reversal required because instruction could have materially affected jury’s choice

Key Cases Cited

Shuler v. United States, 98 A.3d 200 (D.C. 2014) (sets two-part test for lesser-included-offense instruction)
Ulmer v. United States, 649 A.2d 295 (D.C. 1994) (robbery by stealthy seizure; taking after incapacitation can be robbery)
Leak v. United States, 757 A.2d 739 (D.C. 2000) (second-degree theft is a lesser-included offense of robbery; discussion of sudden/stealthy seizure)
Johnson v. United States, 756 A.2d 458 (D.C. 2000) (elements of robbery articulated)
Williams v. United States, 113 A.3d 554 (D.C. 2015) (robbery requires objectively menacing conduct to create reasonable fear)
Dublin v. United States, 388 A.2d 461 (D.C. 1978) (refusal to instruct on larceny where evidence did not create factual dispute as to intimidation/force)
Carey v. United States, 296 F.2d 422 (D.C. Cir. 1961) (robbery may be proven where intent to steal arises after assault; taking following force can be robbery)
Kotteakos v. United States, 328 U.S. 750 (U.S. 1946) (harmless-error standard applied to determine whether instructional error requires reversal)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of the evidence)