DeAngelo Coderro Terry & Billy A. Robin v. United StatesDeAngelo Coderro Terry & Billy A. Robin v. United States
Jonathan S. Zucker, with whom Patricia Daus was on the brief, for appellant DeAngelo Coderro Terry.
Benjamin Brooks for appellant Billy A. Robin.
David P. Saybolt, Assistant United States Attorney, with whom Ronald C. Machen Jr, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Maia Luckner Miller, and Suzanne Clement Libby, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and RUIZ, Senior Judge.
WASHINGTON, Chief Judge: Appellants DeAngelo Coderro Terry (“Terry”) and Billy A. Robin (“Robin”) appeal from their convictions for four counts of
I. Facts
On May 19, 2009, around 4:00 p.m., victims Washington, Wingard, Clipper, and Williams were standing with a group of friends on North Capitol Street between R Street and Randolph Place, N.W. Shortly after 4:00 p.m., Clipper crossed North Capitol Street to go to the liquor store on the southeast corner of North Capitol and R Streets. When he exited the store, he saw Wingard standing in front of a carryout store on the northeast corner of North Capitol and R Streets. He observed Terry, driving a gray Camry with two or three other passengers, go north on North Capitol
Shortly thereafter, a tan Explorer driving south on North Capitol Street, which contained two males and two females, passed the group. One of the females, “Rakiya,” stuck her head out the window, said “fuck you[,] Jameeka,” and gave her the finger. Washington laughed it off, explaining at trial that she and Rakiya had previously been in fist-fights over a boy named Quinton, but that she had not seen Rakiya in a year and did not think they were still in a fight.
At approximately 4:20 p.m., a black male walked southbound on North Capitol Street toward Washington’s group. He pulled a black ski mask over his face with one hand as he walked, and raised a gun with his other. When the shooter was about fifty feet from the group, he fired a volley of about ten shots. Clipper was hit in the leg but was able to hop to the median strip in North Capitol Street where he collapsed. Another member of the group arched his back as though he was hit. The shooter then took several “deliberate” steps toward the group and fired
Washington was talking on her cell phone when the first volley of shots was fired. She returned to her conversation, heard more “pops,” then turned around and saw everyone running away. Washington ran towards her car on R Street to get away, but was shot four times—in the chest, wrist, and ankle. Wingard, who was near Washington, tried to move both of them out of the shooter’s way. Wingard was shot three times in the forehead. After the shooting, Washington collapsed near Wingard in front of the church on the northwest corner of North Capitol and R Streets. Clipper had collapsed in the median; he had been shot in the left shin and the left foot, and the bullet to his left shin had broken his fibula or tibia.4 Williams collapsed in front of the carryout with two gunshot wounds to his left forearm and two to his chest, near his collarbone. Fifteen 9 mm shell casings, all fired from the same gun, were later recovered from the scene.
Three Metropolitan Police Department (“MPD”) officers, Francisco
When the van finally crashed into several parked cars in Hyattsville, Maryland, police found appellant Robin in the driver’s seat, Terry in the passenger
Police photographed Terry, Robin, and Banks to document what each was wearing that day. All three photographs were presented as exhibits at trial. Terry was wearing a black T-shirt and light blue jeans. Terry’s blue jeans had a pattern embroidered on the seat. Terry was a 5’11” tall, medium-complected black male with shoulder-length dreadlocks or braids and a light mustache. Robin was wearing a green long-sleeved dress shirt and had a bandage on his face. He was a black male with a medium complexion, a stocky build, short hair, and a mustache.
At trial, victims Washington, Wingard, and Clipper testified about the shooting and the injuries they suffered. Williams did not testify, though the government called the physician who treated him at the hospital to testify to the extent of his injuries. The jury also heard testimony from several officers involved in the car chase, four eyewitnesses to the shooting, a cooperating government witness, Keith Daniels (“Daniels”), to whom Terry had allegedly made inculpatory statements in the days after the shooting, and two defense witnesses called to impeach Daniels’ testimony. The government also presented physical evidence in the form of the DNA analyses that linked Terry, Robin, and Banks to the ski masks and black hat in the van.
In particular, Daniels, who was Terry’s next door neighbor, testified that several days after the shooting Terry came over to his house and told him, in the presence of his nephews, that not only had he been involved in the shooting, but also why he thought he might get away with it. Terry was impeached with a cooperation agreement that he entered into in this case, his prior convictions for three different
II. Sufficiency of the Evidence
A. Sufficiency of the Evidence With Respect to Robin’s AAWA Convictions as an Aider and Abettor
This court has previously clarified that in order to prove a defendant guilty of AAWA under an aiding and abetting theory, the government must prove beyond a reasonable doubt that the defendant had the requisite mens rea to commit the crime.
[W]hen the government prosecutes a defendant under an aiding and abetting theory of criminal liability, in addition to proving that the aider and abettor “participated” in the assault, the government must prove also that the aider and abettor himself intended to cause serious bodily injury or acted with extreme indifference to human life because he knew either that the principal would commit an assault with such intent, or that the principal would intentionally engage in an assaultive act that actually created a grave risk of serious bodily injury.
Perry v. United States, 36 A.3d 799, 817 (D.C. 2011).
On the other hand, this court found that there was sufficient evidence from which a reasonable juror could convict the defendant of aiding and abetting an armed robbery in Carter v. United States, 957 A.2d 9 (D.C. 2008). In that case, the
Although the evidence was “not overwhelming,” this court concluded that it was sufficient to support an inference that Carter participated in the crime from beginning to end and took actions in an effort to make it succeed. Id. at 18. Specifically, the court determined that a jury could reasonably infer: (1) that Carter was in the gray Mazda while it was parked on the street; (2) that his intention was to wait for Tucker to commit an assault and robbery and then drive him away once the act was complete; (3) that Carter signaled to Tucker about fleeing (the voice saying “Go man go”); (4) that Carter tried to evade the police out of consciousness of guilt;
Here, like in Carter, we are satisfied that the evidence supports an inference that Robin participated in the crime from the beginning and took steps to make it succeed. First, the jury could reasonably infer that Robin was waiting in the van with an intention to drive Terry away after the successful completion of the crime based on the fact that he was sitting in a stolen van in the vicinity at the time of the shooting. Unlike in Quarles, Robin and Terry were known to be connected, as evidenced by the fact that the two men were seen together on the morning of the shooting. Additionally, unlike in Clark and Quarles, here the jury could reasonably infer that Robin intended to aid Terry in the successful completion of the assault because rather than cooperating with police, Robin led over twenty police cars on a dangerous, high-speed chase that lasted over twenty minutes. Finally, the jury could reasonably infer that Robin’s attempt to dispose of the extra ski masks and hats (at least one of which featured Robin’s DNA) was evidence that the men were involved in the crime together from the outset. Because these are reasonable inferences that can be drawn from the evidence presented in this case, we are satisfied that sufficient evidence was presented that Robin possessed the requisite
B. Sufficiency of the Evidence of Serious Injury With Respect to Appellants’ AAWA Convictions
Both Terry and Robin argue that there was insufficient evidence to permit a reasonable trier of fact to find that victims Clipper and Williams suffered serious bodily injuries, an essential element of AAWA. See, e.g., Riddick v. United States, 806 A.2d 631, 639 (D.C. 2002). We review a challenge for sufficiency of the evidence “in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence.” Gathy v. United States, 754 A.2d 912, 917 (D.C. 2000) (citations and internal quotation marks omitted). Thus, “[i]t is only where there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the trial court may properly take the case from the jury.” Id. (citations and internal quotation marks omitted).
This court has defined “serious bodily injury” as an “injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or loss or impairment of a bodily member or function.”
C. Extreme Physical Pain: Clipper and Williams
The level of extreme physical pain necessary for a jury to find that a victim suffered serious bodily injury “must be exceptionally severe if not unbearable.” Swinton, 902 A.2d at 777. There is no requirement that a victim testify to having experienced extreme pain for a jury to so find; rather, the important consideration is
This court distinguished between situations in which there was sufficient evidence from which a jury could conclude that the victim suffered extreme pain for purposes of finding “serious bodily injury” and those in which the evidence was
Turning first to Clipper, the record indicates that he was shot in the left leg, close to his shin or fibula, and that another bullet grazed his left foot. Clipper testified that he “knew his bone was broke[n]” and described his pain as a “7 or 6”
Looking at the nature and extent of the injuries described in the record and the high threshold of injury required for AAWA, we are satisfied that a reasonable juror could not find that Clipper suffered the level of pain necessary to find that he suffered a serious bodily injury. Unlike in Anderson, where the victim testified that her stab wounds were very painful, and Bolanos, where victim Mejia testified that after being stabbed he could not breathe, his muscles hurt, his chest was in pain, and he kept thinking he was going to die, all of which was corroborated by his medical records, there is no such evidence that Clipper suffered similar pain here. Instead, Clipper testified that his pain level was only a seven or a six out of ten, and though he was prescribed additional pain medication, he never took it. Furthermore, unlike in
Victim Williams did not testify at trial, but evidence of the nature and extent of his injuries was presented by his treating physician, Dr. Philip Fidler. The record indicates that Williams was shot four times, twice below the right shoulder blade (near the collarbone), and twice to the left forearm. Williams was rushed to the hospital and given intravenous pain medication. Dr. Fidler testified that Williams was “reasonably stable” upon arrival, with minor heart rate and breathing issues, and was complaining of pain, though he did not testify as to how much. The two gunshot wounds to his forearm did not show signs of having injured any major blood vessels and his forearm was moving normally. The gunshots to the area below his right shoulder blade were “through and through,” meaning that the bullets passed right through his shoulder. Williams had a limited ability to shrug his right
Under these circumstances, no reasonable juror could have concluded that Williams suffered the level of extreme pain necessary for “serious bodily injury.” First, no evidence was introduced to suggest how much pain Williams experienced; rather, like in Bolanos where there was only the detective’s assertion that Rodriguez and Gonzalez were in pain, here there was only Dr. Fidler’s general assertion that Williams was complaining of pain when he arrived at the hospital. Williams did not require surgery and was released from the hospital the morning after he was admitted. There was no evidence in the record that Williams could not walk or was otherwise immobilized with pain, and no evidence that he was prescribed and/or took pain medication upon release from the hospital. Therefore, there was insufficient evidence in the record from which a reasonable juror could conclude that Williams suffered the level of extreme pain required to prove “serious bodily injury.”
The government argues that, alternatively, the jury could have found that Williams suffered “serious bodily injury” because the gunshot wounds to the area below his shoulder blade created a substantial risk of death. Specifically, the government argues that while Williams’s injuries were described as not being life-threatening once he was diagnosed at the hospital, that assessment “made in hindsight, and with the benefit of prompt emergency care, does not obviate the substantial risk of death that Williams faced . . . .” While we understand the government’s argument in this regard and have said that the severity of a victim’s injuries should not be understated due to the fact that he was fortunate enough to receive proper medical treatment, see Freeman v. United States, 912 A.2d 1213, 1222 (D.C. 2006), this court has always required some evidence that a victim’s injuries created a substantial risk of death before finding that the victim suffered “serious bodily injury” under this theory. See, e.g., id. (medical testimony established that the victim experienced substantial risk of death for purposes of “serious bodily injury” where he suffered three gunshot wounds, one of which broke a vertebra, lodged inside his body, and caused the loss of sensation in his lower right leg and ankle, the result of which put him at risk of paralysis and also could have resulted in a major hemorrhage leading to death given its proximity to his aorta);
Although we have concluded that the evidence is insufficient to support appellants’ convictions for AAWA with respect to Clipper and Williams and therefore those convictions must be vacated, the evidence is more than sufficient to support a finding that appellants committed the lesser-included offense of Assault with Significant Bodily Injury. See Collins v. United States, 73 A.3d 974, 985 (D.C. 2013). As the jury found appellants guilty of AAWA, it necessarily would have had to find them guilty of the lesser-included offense. For that reason, we remand the case to the trial court to vacate appellants’ convictions for AAWA in connection with the shootings of Clipper and Williams and instead enter judgments of convictions for the lesser-included offense of Assault with Significant Bodily Injury and resentence appellants accordingly.
In August 2009, the defense requested that the government turn over all
B/M Dark 5‘10” (skinny)
Black shirt light blue pants or shorts.
Small dreads w/ black hat.
Could see the shooters face.
Subsequently, on February 25, 2011, a prosecutor to whom the case had been reassigned provided the defense with a “voluminous” letter pursuant to the government‘s disclosure obligations which included, in relevant part, the following information:
Victim Williams—Victim Williams provided the following information to an officer while he was at the hospital: a four-door tan truck, like an Explorer, with two black females, who had blondish hair, and two black males, the driver got out of the truck. Victim Williams also described the shooter as approximately 5‘9“- 6‘0, skinny, black male, with dark skin, short dreads, wearing a black t-shirt, blue shorts, and a black baseball cap, goatee, aged 22-23, used what looked like a black, “small” gun, likely .45 caliber. Please note that the government provided this information to you in its December 7, 2009, disclosure. Victim Williams indicated that he was able to see the shooter‘s face. At this time, the government is seeking to re-interview victim Williams to clarify whether the description of the shooter relates to the description of the individuals in the tan truck.
The trial in this case began on January 12, 2012, and after the jury was sworn, the government provided appellants with a
There are three elements to a
In Miller, this court explained that a
Assuming without deciding that the information was suppressed as appellant contends, we are satisfied that the outcome of the trial would not have been different. Whether the defense is prejudiced by the late disclosure of
In Mackabee, this court found that the defense suffered no prejudice due to the allegedly late disclosure of the videotaped statement containing a witness description of the shooter or the late disclosure of the identity of a government witness who had identified two individuals other than the defendant as being the shooter from a photo array. Id. at 960, 963. We rejected appellant‘s argument that
In this case, appellants have failed to explain concretely how an earlier disclosure of Williams‘s identification of the shooter as the driver of the tan Explorer, or the fact that Rakiya made an antagonistic gesture out the window to Jameeka Washington, created a reasonable probability that the verdict would have
Moreover, eyewitness descriptions of the shooting, as well as a security video from a nearby funeral home, established that the shooter approached the victims from Randolph Place, N.W., shot them, and ran back towards Randolph Place. Specifically, Ronald Taylor observed the shooter run around the corner onto Randolph Place and get into the passenger seat of a red van, which was then chased
We also reject appellants’ alternative argument that they might have been able to make use of this information to advance a theory of “shoddy” police work had the contents of Detective Murphy‘s notes been disclosed earlier. According to the record before us, the full content of Detective Murphy‘s notes was turned over well before the opening of the defense‘s case-in-chief at trial and appellants made a strategic decision not to call Williams or Detective Murphy at trial. As the trial judge correctly concluded, nothing prevented the defense from calling Detective Murphy to testify about Williams‘s identification of the driver of the tan Explorer as the shooter so long as Williams was available for cross-examination. See
Thus, even had the information in Detective Murphy‘s notes been disclosed well in advance of trial, we are satisfied that there was no reasonable probability of a different result and, therefore, we affirm the trial court‘s decision that there was no
IV. Evidentiary Issues
With respect to Robin‘s first contention, it is well-settled in this jurisdiction that not all relevant evidence is admissible, especially if “its probative value is substantially outweighed by the danger of unfair prejudice.” Gay v. United States, 12 A.3d 643, 646-47 (D.C. 2011)Punch v. United States, 377 A.2d 1353, 1358 (D.C. 1977); see also Johnson v. United States, 398 A.2d 354, 363-66 (D.C. 1979) (factors that should be taken into account on appellate review of a trial court decision under the abuse of discretion standard include: (1) whether the determination was committed to the trial court‘s discretion; (2) whether the trial court recognized that discretion and purported to exercise it; (3) whether the record reveals sufficient facts upon which the trial court‘s determination was based; (4) whether the trial court exercised its
On cross-examination, Daniels was impeached with evidence that, after testifying at trial against his co-defendant in a 1992 murder case, he sent letters to the judge who presided over that trial recanting his trial testimony and actually admitting to having committed the murders. Daniels testified that he was forced at knifepoint to sign the recantation and confession in that case by some friends of his co-defendant in that case. When Daniels was asked whether anyone had been prosecuted for forcing him to sign the documents at knifepoint, he answered “no” before the government‘s objection to the question was sustained by the trial court and further testified, without objection, that he subsequently called the prosecutor about the incident and was moved to another location. Counsel for appellant Robin then confronted Daniels with the letters and his specific claims in those letters that he cooperated with the government because the prosecutor had threatened to take away his sister‘s children and that he had taken a watch from a victim of that shooting that had the victim‘s name inscribed on it.
On redirect, Daniels repeated that after he signed the letters, he contacted the prosecutor and was moved, but this time it was over objection by appellants. The
Specifically, appellant Robin contends that the trial court abused its discretion by: (1) prohibiting the defense from asking Daniels on redirect whether anyone was ever prosecuted for allegedly holding a knife to his throat and forcing him to sign the letters in which he admitted to committing the 1992 murder that were sent to the prosecutor and judge in that case; (2) prohibiting the defense from questioning Daniels about specific details involving the 1992 murder that were included in those letters; and (3) allowing Daniels to testify that he was subsequently moved from his jail cell into protective custody after the letters were sent and that the co-defendant‘s conviction was never overturned.
We are satisfied that the trial court did not abuse its discretion with respect to any of these evidentiary rulings. First, Daniels had already testified during cross-examination that no one had been prosecuted for allegedly holding a knife to his throat and forcing him to sign the jailhouse confession. Because the answer to that question was not stricken from the record, we fail to see how his repeating that testimony during redirect prejudiced Robin. Second, while the trial court prevented Robin from questioning Daniels about the specific details of the 1992 murder that
Finally, Robin‘s argument, that the trial court abused its discretion by allowing Daniels to testify that he had been moved into protective custody and that the defendant‘s conviction in the murder case was not overturned, might be more persuasive had the defense not opened the door by questioning Daniels about the government‘s response to his complaints about the alleged assault during Daniels’
“The scope of redirect examination rests within the sound discretion of the trial court and will not be reversed absent a showing of clear abuse.” Hairston v. United States, 497 A.2d 1097, 1103 (D.C. 1985). Redirect examination may be properly used “to deal with matters which first came up on cross-examination.” Brown v. United States, 763 A.2d 1137, 1140 (D.C. 2000). Here, the issues involving the 1992 murder case were first raised on cross-examination by appellant and the impressions that appellant intended to leave with the jury were misleading and unfairly prejudicial. Under those circumstances, we cannot say that the trial court abused its discretion in allowing the government to rebut the impression that the government took no action in response to Daniels’ complaint or that an innocent man was convicted based on Daniels’ false testimony. See (Keith) Thomas v. United States, 978 A.2d 1211, 1239-40 (D.C. 2009) (no abuse of discretion to permit detective to testify on redirect that he believed witness‘s out-of-court statements because purpose was to rebut defendant‘s suggestion on cross-examination that the detective agreed to provide relocation assistance to witness in return for false testimony); see also McClellan v. United States, 706 A.2d 542, 551-52 (D.C. 1997) (no abuse of discretion where trial court allowed redirect examination of two
Appellants also contend that the trial court abused its discretion when it allowed the government to question Gray about a shooting that occurred at the Gray family home but that he failed to report. Gray, who is Daniels’ nephew and who had grown up next door to Terry, was called by the defense to impeach Daniels’ credibility by testifying that the conversation Daniels said happened with Terry and his nephews a few days after the shooting in the basement of the Gray‘s new house never actually happened. Gray also testified that in his family, Daniels was known as “pretty much a liar.” The government wanted to cross-examine Gray about the fact that his house had been shot up in early 2009, arguing that the expected answer to the question, that he had not reported the shooting or cooperated with the police, would lead to evidence of Gray‘s bias against “snitches” or “rats” (which the government had already begun probing). The defense objected to the government‘s attempt to introduce this line of questioning, arguing that it was completely irrelevant to his uncle‘s truthfulness or to any of the events at trial because there was no connection between that shooting and the North Capitol Street shooting. They
Next, Robin challenges the admission of the statements that Terry allegedly made to Daniels a few days after the shooting on North Capitol Street under the statements against penal interest exception to the hearsay rule. The specific statements Robin challenges are that Terry told Daniels:
They threw the gun;
They threw the gun somewhere near Ridge Road and Mount Rainier;
the media had “gotten it wrong” when they had reported it as a drive-by shooting and that “they got out“;
we got out of the truck;
they was outside drinking and we just walked up the streets with our heads down;
they had parked on the side and they walked up the street and that Kwame [victim Wingard] had his head down and “they rushed him.”
A defendant‘s confession or extrajudicial statement is generally inadmissible against a co-defendant under the Confrontation Clause of the Sixth Amendment and the traditional hearsay rules. (Keith) Thomas, 978 A.2d at 1222. The Sixth Amendment Confrontation Clause guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
While admissions of Terry‘s out-of-court statements did not violate the Confrontation Clause, they may nevertheless be inadmissible under the traditional hearsay rules. See (Michael) Thomas v. United States, 914 A.2d 1, 12 (D.C. 2006) (explaining that hearsay statement that is non-testimonial is nevertheless subject to
This court has adopted a test from the Federal Rules of Evidence that governs when a declaration against penal interest is admissible. Laumer v. United States, 409 A.2d 190, 199 (D.C. 1979) (en banc). This test, hereinafter the Laumer test, states that in order for a statement to be admissible as a declaration against penal interest, the trial judge must find: (1) that the declarant made the statement; (2) that the declarant is unavailable to testify; and (3) that there are “corroborating circumstances [which] clearly indicate the trustworthiness of the statement.” Id. at 199; see also (Keith) Thomas, 978 A.2d at 1228. Whether there are such corroborating circumstances that indicate the reliability of the statement is determined by considering factors such as the time that the declaration was made and to whom it was made, the existence of extrinsic evidence corroborating the declaration, and the extent to which the declaration was against the declarant‘s penal interest when it was made. Laumer, 409 A.2d at 199-200; (Keith) Thomas, 978 A.2d at 1228.
Here, there is no dispute that the second prong of the Laumer test is
With respect to the first prong, the trial judge made the following factual findings, which we reject only if clearly erroneous: (1) Daniels had a close relationship with Terry because he had been a neighbor of Terry‘s family for years; (2) Daniels was close to Terry‘s family, and he and Terry referred to one another as “nephew” and “uncle“; and (3) Terry was frequently in and out of Daniels’ family‘s house, and sometimes Daniels would see Terry daily. Moreover, the statement was allegedly made just days after Terry was released from jail after his initial arrest for the shooting, apparently in the privacy of the Grays’ home with a limited audience. Thus, the trial judge reasoned that “it‘s very plausible that a younger person like Mr. Terry would seek the advice of an older neighbor or family friend like Mr. Daniels, since he might believe that Mr. Daniels would be able to speak from his own experience and answer questions that he‘s asking about the criminal justice system and about law enforcement investigation.” We are satisfied that the trial judge‘s subsequent conclusion that Terry actually made these statements to Daniels, which is based on these factual findings that were not clearly erroneous, is supported by the
With respect to the third prong of the Laumer test, Robin argues that there was no evidence in the record of circumstances corroborating the truth of the statements Terry allegedly made to Daniels referring to “we” and “they” because there was absolutely no evidence in the record to suggest that there were multiple shooters or multiple individuals that approached the group of victims. As such, the third prong of Laumer was not met and these statements were improperly admitted. We disagree.
We note that for the same reasons that the trial court found Daniels to be a credible witness, Daniels’ out-of-court statements also bear other indicia of trustworthiness. See (Keith) Thomas, 978 A.2d at 1229; Laumer, 409 A.2d at 201 (“The existence of a close relationship between the declarant and the witness also may provide indications of trustworthiness.“); see also United States v. Manfre, 368 F.3d 832, 842 (8th Cir. 2004) (upholding admission of statements “not made while facing trial, but . . . instead made casually to an intimate confidante“); Anthony v. DeWitt, 295 F.3d 554, 564 (6th Cir. 2002) (“[S]tatements made to a family member or perceived ally, in confidence, have previously been deemed sufficiently trustworthy.“).
Reviewing this conclusion de novo, we agree that there was sufficient corroborative evidence of the statements Terry allegedly made to Daniels to satisfy
Generally, “where two predicate armed offenses do not merge, a defendant may be convicted of separate counts of PFCV relating to each offense.” Hampleton v. United States, 10 A.3d 137, 146 (D.C. 2010) (citations omitted). However, even if the predicate armed offenses do not merge, multiple PFCV convictions will merge “if they arise out of a defendant‘s uninterrupted possession of a single weapon during a single act of violence.” Id. (quoting Matthews v. United States, 892 A.2d 1100, 1106 (D.C. 2006)); see also Nixon v. United States, 730 A.2d 145, 153 (D.C. 1999). To determine whether multiple PFCV convictions were based on one act of violence, or more than one act of violence, the court applies a fact-based approach. Campos-Alvarez v. United States, 16 A.3d 954, 962 (D.C. 2011). Acts are considered distinct when “a subsequent criminal act was not the result of the original impulse, but a fresh one.” Id. This court reviews de novo whether Terry‘s four convictions for PFCV merge. Nixon, 730 A.2d at 151.
Appellant Terry argues that his four PFCV convictions should merge into one
Because there is insufficient evidence in the record to support four separate PFCV convictions, on remand, the trial court should vacate two of Terry‘s PFCV convictions.
VII. Conclusion
Notes
Appellant Robin filed a motion to stay this appeal in order to allow him time to file a motion to vacate his sentence pursuant to
Appellant Terry filed a motion requesting that this court appoint him counsel to file a