Eric D. Foreman v. United StatesEric D. Foreman v. United States
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Lauren R. Bates, 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, Stephen Gripkey, and Adrienne Dedjinou, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and REID, Senior Judge.
REID, Senior Judge: A jury convicted appellant, Eric D. Foreman, of first-degree felony murder and other serious crimes committed in the Northwest quadrant of the District of Columbia.1 He (1) contends that the trial court erred by admitting as substantive evidence, under
FACTUAL SUMMARY
The government submitted evidence concerning the random murder of Neil Godleski in Sherman Circle, around 12:35 a.m. on Sunday, August 22, 2010. Prior to the murder of Mr. Godleski, Jamal Bell, the best friend of Mr. Foreman, was killed on June 18, 2010. In addition, on August 21, 2010, Naaman Williams was shot in the leg with the same gun that caused Mr. Godleski‘s death.2
Alexus Thorne, a senior in high school and a friend of Mr. Foreman, testified that on August 21, 2010, she, her sister Dinekia Thorne, Shamel Goodine, and Reginelle Davis had been hanging out together in Sherman Circle, celebrating Shamel‘s birthday. They were joined by some young men, including Mr. Foreman, Marquis (“Man-Man“) Lee, Prince Okorie,4 and Bradley Jackson. She saw Mr. Williams, a former classmate, and spoke to him. As the group was crossing Sherman Circle to go to the Clark Elementary School playground, Alexus looked back and saw “a huddle around [Naaman].” “[T]hey” asked if he knew anything about “Mal” (Jamal) “getting shot.”5 Alexus and her group proceeded towards Clark, but Prince was “running behind [Naaman] as if he was trying to catch up with him.”
As the group approached Clark, it was getting dark. Mr. Foreman, Dinekia Thorne, Bradley, and Marquis were drinking. Alexus maintained that she is “not a drinker” and “just was there, but [she] didn‘t have any alcohol.”6 Prince “had changed his shirt” and maybe his jeans. “He seemed like he was out of breath, like he couldn‘t catch his breath, as if he was running.” He ran over to Mr. Foreman and they argued. She heard Mr. Foreman ask Prince, “So did you do it?” Mr. Foreman repeatedly said, “Did you yeah.”
Jeremy Bell, the twin brother of decedent Jamal Bell, claimed at trial that he did not remember events and had been “traumatized.”7 Consequently, the prosecutor questioned him in detail about his grand jury testimony on September 29, 2010, as he read excerpts from the transcript. The excerpts revealed that Jeremy had described the man on the bicycle to the grand jury. He had seen Mr. Foreman shoot the man. Mr. Foreman was “right next to the victim,” and “he ben[t] down and picked up something.” Jeremy had also testified that Bradley, J.B. and Man-Man (Marquis) were at the scene of the crime. Before he went into the grand jury, Jeremy had started to imply that he had not seen Mr. Foreman shoot the man on the bicycle. But he explained to the grand jury that he “felt [he] didn‘t want to be involved in much of the case.”
Marquis Lee, a seventeen-year old high school drop-out who was incarcerated at the time of Mr. Foreman‘s trial due to an assault adjudication and revocation of probation, initially refused to participate in the trial. The trial court held him in civil contempt,8 and the government granted him limited immunity relating to his trial testimony.
Mr. Lee acknowledged that he had given a written, signed statement to the police in September 2010 indicating that he was on the scene when Mr. Godleski was shot, and that Mr. Foreman shot him. He adopted his written statement when he appeared before the grand jury in October 2010. Before the grand jury he testified that he saw Mr. Foreman approach the man on the bicycle “with a gun out, pointed at the guy like he was robbing him.” He “saw the gun flash and Eric shooting the man.” He “heard about three shots, and the guy on the bike was going down.”9 Mr. Lee “started walking away fast.” However, during his immunized trial testimony, Mr. Lee denied that he was present when Mr. Godleski was shot. Furthermore, he claimed that he was at home all night, that Mr. Foreman came to his house with [Mr. Lee‘s] mother around 9:00 or 10:00 p.m. and he remained there until the next morning. But, Mr. Lee agreed that he was in Sherman Circle with Mr. Foreman earlier in the day when Naaman Williams walked through the area; Mr. Okorie and others also were there.10
Mr. Lee and Mr. Foreman proceeded to Clark Elementary and Mr. Okorie “turned
After leaving Clark, Mr. Foreman, Mr. Lee, and Mr. Okorie went to Mr. Jackson‘s home in Petworth and sat on the porch; Mr. Lee‘s mother, Yvette Lee, was there during the day. When Mr. Jackson‘s mother asked them to leave because they were so loud, Mr. Lee and the others went to an abandoned house down the street. There, Mr. Foreman asked Mr. Okorie, “Where you put the gun at?” Mr. Okorie told him not to worry, he put it in “the cut” – meaning “a stash spot.” Mr. Foreman called Prince “dumb” and Prince replied, “I don‘t care. They killed my man, so I don‘t care.” Mr. Foreman and J.B. left, saying they were going to the corner store. They were gone for about thirty minutes. Prince did not leave with them.11
Yvette Lee testified that she has a “close” personal relationship with Mr. Foreman, has known him for ten to twelve years, knows his family, and he calls her “Ma.” Her son Marquis and one of her daughters are friends with Mr. Foreman. On August 21, 2010, she went to the home of her long-time friend, Karin Jackson, the mother of Bradley Jackson around 1:00 p.m. Marquis and one of Ms. Lee‘s daughters are also friends with Bradley. Ms. Lee remained at Ms. Jackson‘s home until around 1:00 a.m. She had been drinking and described her level of intoxication as “mellow.” As she was preparing to leave Ms. Jackson‘s house, Mr. Foreman arrived. They began walking to Ms. Lee‘s home and at some point they were joined by Mr. Lee. When they reached Sherman Circle, Ms. Lee saw the yellow police tape and asked what happened. Mr. Foreman was “very intoxicated.” Ms. Lee told the grand jury that as they were walking by, Mr. Foreman “grabbed” her hand and was “squeezing it.” Mr. Foreman said, “Ma, I know who did that.” “I did it.” But he then said he was “just playing,” and he was “laughing.” At trial, Ms. Lee claimed that she “did not say that,” although she agreed that the prosecutor read the grand jury transcript accurately.
Reginelle Davis, a high school graduate, also lived in the Petworth area. She attended middle school with Mr. Foreman. Jamal Bell was her best friend and he and Mr. Foreman were like brothers, as were
Sometime after she was at Sherman Circle on August 21, 2010, Ms. Davis was on the street when she heard “Nate” say to Mr. Foreman, “somebody told him that it was [Mr. Foreman] that shot the man.” Mr. Foreman “walked off” but did not deny the accusation. Two or three days later, Ms. Davis saw Mr. Foreman “outside” and asked him, “what‘s going on [b]ecause people kept saying he did it,” that is, he “[s]hot the man.” Mr. Foreman “said he did,” that is, he shot the man on the bicycle in Sherman Circle — the man on the bicycle that got killed. After Ms. Davis responded “no” to questions as to whether she had asked why Mr. Foreman shot the man, and whether Mr. Foreman said anything about the gun, the prosecutor read excerpts from Ms. Davis‘s May 2011 grand jury testimony showing her responses as, “[h]e said he shot the guy because he was upset,” and “[he] and Prince used the same gun.”13
MPD Detective Hosam Nasr was the lead detective on the Godleski murder case. On August 23, 2010, Detective Nasr took Naaman Williams to the area near Sherman Circle where he had been shot. He found two shell casings, and a crime scene search officer recovered another shell casing close to the area.
Detective Nasr interviewed Mr. Lee in September 2010. Mr. Lee initially denied knowing about the shooting. As an investigative tactic the detective lied in telling Mr. Lee that there were cameras in the area of Mr. Godleski‘s shooting and that MPD had footage from the cameras that depicted the shooting. Detective Nasr asserted that he did not provide any details about the shooting. Mr. Lee identified Mr. Foreman as the shooter. Detective Nasr took Mr. Lee‘s statement and Mr. Lee signed it. Detective Nasr also interviewed Alexus Thorne and Jeremy Bell (in the presence of his mother) in September 2010. Initially, Jeremy said he did not want to be a snitch and did not want it known that he had spoken with the police. Nevertheless, Jeremy identified Mr. Foreman as the person who shot Mr. Godleski.14
After the jury found him guilty, Mr. Foreman filed a motion for a new trial on the ground that “[t]he guilty verdicts in this case are contrary to the weight of the evidence.” In denying the motion, the trial
ANALYSIS
The Admission of Bradley Jackson’s Identification Statement as Substantive Evidence
Mr. Foreman first contends that the trial court abused its discretion by admitting Bradley Jackson‘s statement, “Eric [Foreman] shot the guy,” as substantive evidence under
A statement is not hearsay if the declarant testifies at the trial . . . and is subject to cross examination concerning the statement and the statement is . . . (3) an identification of a person after perceiving the person.
The Testimony of Bradley Jackson and Karin Jackson
We set forth relevant parts of the testimony of Bradley Jackson and Karin Jackson regarding Mr. Jackson‘s alleged statement about Mr. Foreman‘s shooting of Mr. Godleski. Mr. Jackson testified at trial that he, Mr. Okorie, and Mr. Foreman went to school together. He denied being at Sherman Circle when Naaman Williams walked by, claimed he did not know who was at Sherman Circle on August 21 and 22, 2010, and denied talking with his mother about Mr. Godleski‘s shooting. After being reminded of his grand jury appearances on May 4 and 31, 2011, Mr. Jackson said he was at Sherman Circle “when a person on a bicycle came through.” He heard gunshots and ran. He insisted that he did not remember those who were with him at the Circle, or any details. Yet, he claimed Mr. Foreman was not responsible for shooting Mr. Godleski because Mr. Foreman “is a good person.” Mr. Jackson admitted that the police took him to the police station for questioning, but he denied talking to the police in September 2010 and giving them information about the Godleski shooting or about the presence of Naaman Williams at Sherman Circle. However, the prosecutor played excerpts from Mr. Jackson‘s videotaped interview with the police. In those excerpts Bradley identified the young people who were at Sherman Circle when Naaman walked by. Mr. Jackson also admitted being at Sherman Circle when Mr. Godleski came through on his bicycle, and he indicated that he looked back when he heard gunshots. Mr. Foreman, Mr. Okorie and Jeremy Bell were behind him, but Mr. Jackson did not know who the shooter was.
The prosecutor used Karin Jackson‘s testimony to show that Mr. Jackson had made the statement, “Eric shot the guy.” Ms. Jackson lived in the Petworth area until October 2010 when she was evicted from her home due to criminal activity
On cross-examination, defense counsel emphasized Ms. Jackson‘s grand jury statement, “I guess they seen it was Eric.” Ms. Jackson agreed with defense counsel that she “didn‘t really know whether [Mr. Jackson] was telling [her] stuff based on what he saw or heard.” Defense counsel also elicited an admission from Ms. Jackson that at the time of the events in question, and for a “[v]ery long time,” she “habitually” smoked PCP and marijuana, and also she was drinking and using cocaine (powder and crack), but “mainly PCP and cocaine.” At the time of trial, she had been “clean” for five months.
The Standard of Review and Applicable Legal Principles
Our analysis of the first issue is guided by the following standard of review and applicable legal principles. We review questions concerning the meaning of
“‘It is the jury‘s province to resolve questions of credibility and to make reasonable inferences from the evidence.‘” Sparks, 755 A.2d at 399 (citation omitted). “[T]he underlying factual findings are reviewed under the ‘clearly erroneous‘ standard . . . and the decision whether to admit or exclude the proffered statement, based on those factual findings, is reviewed for abuse of discretion.” Odemns v. United States, 901 A.2d 770, 776 (D.C. 2006). Moreover, “[t]he preponderance of evidence standard . . . is traditionally used in deciding preliminary fact questions.” Devonshire v. United States, 691 A.2d 165, 169 (D.C. 1997); United States v. Woodfolk, 656 A.2d 1145, 1150 n.14 (D.C. 1995) (“[P]reponderance of the evidence is the most commonly accepted standard of proof for determining the admissibility of evidence.“).
“To conclude that an error is harmless, we must find it highly probable that [that] error did not contribute to the verdict.” Odemns, 901 A.2d at 782 (alteration in original) (internal quotation marks omitted) (quoting In re Ty. B., 878 A.2d 1255, 1267 (D.C. 2005)). “We must determine whether the error was sufficiently insignificant to give us fair assurance that the judgment was not substantially swayed by it. Id. (internal quotation marks omitted). “Thus, even where there is sufficient admissible evidence to support the judge‘s finding, we cannot treat the erroneous admission of hearsay as harmless unless the error was so inconsequential as to provide reasonable assurance that it made no appreciable difference to the outcome.” Id. (internal quotation marks omitted).
Discussion
On August 22, 2012, the day before the testimony of Bradley and Karin Jackson, the trial court revisited its earlier inclination to admit Bradley Jackson‘s statement of identification through Karin Jackson. Defense counsel objected to Ms. Jackson‘s proposed testimony as to her son‘s alleged statement because of her statement during her grand jury testimony — “I guess they seen it was Eric that shot him, and they ran.” Defense counsel argued that “[i]t was not clear whether . . . Bradley was telling her something he heard or something he saw,” and that before the statement is admitted, “we need to clarify from Ms. Jackson whether . . . Bradley said he saw it or not.” The trial court then examined Ms. Jackson‘s grand jury testimony in detail, focusing on Ms. Jackson‘s “Yeah” and “Yes” responses to the following questions from the prosecutor: “And so I understand, then[,] [Bradley] was saying that the police were correct in saying he was there?” “And had seen what had happened and knew what was going on?” “Is that correct?” When Ms. Jackson referred to “Eric,” the prosecutor inquired, “What Eric was he referring to? Ms. Jackson replied, “Eric Foreman.” The trial judge also focused on the following exchange between the prosecutor and Ms. Jackson: “So you understood your son was relaying information that he personally knew himself, correct?” Ms. Jackson said, “Yes.” The prosecutor continued, “Because he was in fact, there and saw this happen? Ms. Jackson answered, “Right, yes.” The trial court concluded, “I think that, to me, is a statement of identification, and there‘s evidence of personal knowledge.”
On this record, we cannot say that the trial court‘s factual finding that Mr. Jackson was present and saw what happened to Mr. Godleski is “clearly erroneous.” Nor can we say that the trial court was wrong in its interpretation of the requirements of
Ms. Jackson‘s testimony constituted evidence that Bradley based his identification of Mr. Foreman on his (Bradley‘s) own sensory perceptions, Ginyard, 816 A.2d at 40, because Ms. Jackson confirmed that Bradley “was relaying information [to her] that he personally knew himself,” and “[b]ecause he was in fact there [at Sherman Circle] and saw this [Mr. Foreman shooting Mr. Godleski] happen.” In short, we discern no error in the trial court‘s admission of Ms. Jackson‘s testimony and in its interpretation and application of
Furthermore, even assuming the trial court committed error in admitting Ms. Jackson‘s statements regarding Bradley‘s identification of Mr. Foreman, we are satisfied on this record that the error would be harmless because “it is ‘highly probable that [the] error did not contribute to the verdict.‘” Headspeth v. United States, 86 A.3d 559, 567 (D.C. 2014) (alteration in original) (quoting Wilson-Bey v. United States, 903 A.2d 818, 844 (D.C. 2006) (en banc)). Other witnesses placed Mr. Foreman at Sherman Circle at the time of Mr. Godleski‘s murder and identified Mr. Foreman as the shooter. Even though some of these witnesses repeatedly claimed that they could not remember the events or evaded direct responses to questions, their sworn statements and grand jury testimony were properly admitted into evidence. See McRoy v. United States, 106 A.3d 1051, 1055 (D.C. 2015) (“[A] witness‘s prior statement is considered inconsistent with her[/his] testimony if she[/he] evades questions at trial by claiming a loss of memory.“). The grand jury or trial testimony of other witnesses showed the following.
In his grand jury testimony, Jeremy Bell described the man he saw on a bicycle at Sherman Circle. He testified that he saw Mr. Foreman shoot the man, and Mr. Foreman was “right next to the victim.” He also saw Mr. Jackson and Mr. Lee at Sherman Circle when Mr. Godleski was shot. Mr. Lee admitted at trial that he was at Sherman Circle on August 21, 2010, when Naaman Williams walked into Sherman Circle. He testified that Mr. Okorie had a gun and Mr. Foreman confronted him about trying to shoot Naaman “in broad daylight.” Mr. Lee also testified at trial that he was with Mr. Foreman, Mr. Okorie and Mr. Jackson, at Mr. Jackson‘s house, when Mr. Foreman asked where Mr. Okorie put the gun. Although Mr. Lee claimed at trial that he and Mr. Foreman were at his (Mr. Lee‘s) home all night on August 21, 2010, he was impeached with his written and signed statement given to the police in September 2010, and with his grand jury testimony that incorporated his
Ms. Davis declared at trial that sometime after the shooting of Mr. Godleski she was on the street when she heard “Nate” tell Mr. Foreman that someone told him that Mr. Foreman shot the man on the bicycle. Mr. Foreman did not deny the accusation. Two or three days later Ms. Davis asked Mr. Foreman what was going on because people said he shot the man on the bicycle. Mr. Foreman admitted shooting the man. According to Ms. Davis‘s grand jury testimony, Mr. Foreman “said he shot the guy because he was upset” and that “[he] and Prince used the same gun.”
At the time of her trial testimony, Yvette Lee had known Mr. Foreman for ten to twelve years and had a “close” relationship with him. Sometime after 1:00 a.m. on the night of Mr. Godleski‘s murder, Ms. Lee and Mr. Foreman were walking from Ms. Jackson‘s home toward Ms. Lee‘s home. According to Ms. Lee‘s grand jury testimony, as they approached Sherman Circle and Ms. Lee saw the police tape, Mr. Foreman grabbed and squeezed her hand, and he said, “Ma, I know who did that.” “I did it.” Mr. Foreman began to laugh and he said he was “just playing.” Mr. Jackson admitted at trial that he was at Sherman Circle “when a person on a bicycle came through,” and when he heard gunshots, he ran. However, Mr. Jackson‘s videotaped interview with the police revealed that when he heard the gunshots, he looked back and saw Mr. Foreman, Mr. Okorie and Jeremy Bell behind him.
Ballistics evidence, introduced through Jonathan Pope, a MPD firearms examiner, linked cartridge cases and bullets recovered in relation to both the Naaman Williams and the Godleski shootings and showed that the bullets were “consistent . . . with having been fired from a .380 caliber semi-automatic.” Mr. Lee was with Mr. Foreman when Naaman Williams passed by Sherman Circle. Mr. Lee testified at trial that at that time, Mr. Okorie had “[h]is gun, a black .380.” Later that same day, Mr. Foreman, Mr. Okorie and Mr. Lee were at an abandoned house down the street from Mr. Jackson‘s home when Mr. Foreman asked Mr. Okorie where he put the gun and Mr. Okorie replied, in “the cut.”
Given this testimony, the weight of the prosecution‘s case against Mr. Foreman was substantial and compelling. Morerover, under the preponderance of the evidence standard which governs the admissibility of evidence, see Devonshire, 691 A.2d at 169; Woodfolk, 656 A.2d at 1150 n.14, the evidence set forth above points to a reasonable and strong inference that Mr. Jackson saw Mr. Foreman shoot Mr. Godleski, and in light of its verdict, the jury obviously credited at least the testimony of Jeremy Bell and Mr. Lee, also eyewitnesses to the shooting and the actions of Mr. Foreman. Although there was evidence that some of the witnesses had been drinking or using drugs, the jury was responsible for determining their credibility, weighing their testimony, and making reasonable inferences based on that testimony. See Sparks, supra, 755 A.2d at 399; see also Foxworth, supra, 570 F.3d at 427. Consequently, we are convinced that it is “highly probable that [any] error [in admitting Bradley‘s identification through Ms. Jackson] did not contribute to the verdict.” Headspeth, supra, 86 A.3d at 567.
Mr. Foreman‘s second argument revolves around the trial court‘s response to a note from the jury during deliberations. He contends that “the court erred in failing to respond directly to the jurors’ note by instructing that if they determined that a witness statement was based on a ‘scenario’ supplied by others and not on the witness’ personal knowledge, it could give no weight to that statement.” He maintains that the error was not harmless.
The Note and the Response
The jurors’ note posed a question and voiced a concern:
We have a question about statements from witnesses & interrogation of suspect/witnesses. Is it safe to assume that if the statements from witnesses are admissible in court then they were gathered in a legal and legitimate way[?]
I.E. we are concerned with “feeding the witness scenarios.”
The trial court engaged in a rather extensive discussion with counsel about the note and listened to their objections to proposed response language. Relatively early in the discussion, defense counsel asserted that the court‘s response to the second part of the note should be, “[i]f you believe a witness has been fed scenarios, information, whichever word, that should be a factor in your determining what weight to give the evidence or statement.” As the discussion continued, defense counsel‘s main concern appeared to be avoiding a response to the “feeding the witness scenarios” language that would “discredit the inference he was asking [the jurors] to draw” during his closing argument.15 Defense counsel focused on the trial court‘s proposed sentence that read, “[y]ou‘ve heard evidence about how various statements were obtained and the circumstance under which they were made.” Defense counsel argued, in essence, that the unqualified use of the word “evidence” would negate or “discredit” an inference he wanted the jury to draw because “there would be no way [the defense] would have direct evidence of [communication between Mr. Okorie and others].” Consequently, the court qualified “evidence by adding “direct or circumstantial.” The prosecutor said, “[t]hat‘s fine.” Defense counsel responded, “[y]eah,” and asked, “[y]ou‘re going to put in ‘direct and circumstantial?’ The trial court answered, “I am going to do that,” and defense counsel asserted, “[o]kay.”
The trial court gave defense counsel and the prosecutor its final written version of its response before announcing it.16 The jury heard that version, which reads as follows:
The statements of various witnesses are properly before you for your consideration during deliberations. The mere fact that they were admitted, however, does not tell you anything one way or the other about how they were gathered or their credibility. You have heard evidence about how various statements were obtained and the circumstances under which they were made. What weight, if any, you are to give such evidence, is solely your determination to make. In weighing the credibility of the statements, you may consider all evidence, direct or circumstantial, concerning the circumstances of making the statements.
Applicable Legal Principles and Discussion
“Decisions regarding whether and how to reinstruct the jury are committed to the broad discretion of the trial court.” Coreas v. United States, 565 A.2d 594, 599 (D.C. 1989). “[A]bsent abuse of that discretion we will not reverse.” Gray v. United States, 79 A.3d 326, 337 (D.C. 2013) (citation and internal quotation marks omitted). “[W]hen the jury explains specific difficulties, the trial court should clear them away with concrete accuracy.” Id. (citation and internal quotation marks omitted). However, “[t]he trial judge must be especially alert not to send the jury back to resume deliberations having most recently heard supplemental instructions which are unbalanced.” Yelverton v. United States, 904 A.2d 383, 387-88 (D.C. 2006) (citation and internal quotation marks omitted). “[W]hen the trial court gives supplemental jury instructions it should seek not only to respond to the jury‘s request as the court in its discretion sees fit, but it should do so in a manner that does not unduly emphasize one aspect of the case.” Id. (citing Davis v. United States, 510 A.2d 1051, 1053 (D.C. 1986) (per curiam) (internal quotation marks omitted).
On this record we are satisfied that the trial court did not abuse its broad discretion in responding to the jury‘s note. See Johnson v. United States, 398 A.2d 354, 368-70 (D.C. 1979). The trial court listened to the views of defense counsel and the prosecutor, and the court sought to draft a balanced response that would not unduly emphasize any particular aspect of the case. The court understood that the gravamen of the jury‘s concern was whether the mere admission of direct or circumstantial evidence, including that relating to the detectives’ interrogation of suspects and witnesses, as well as the closing arguments of counsel, meant that the evidence was legitimate, legal, and credible. Consequently, the court instructed the jurors that the mere admission “does not tell you anything one way or the other about how they were gathered or their credibility,” that it was up to them to determine “[w]hat weight, if any,” they would “give such evidence.” Moreover, in answering the jury‘s concern about “feeding the witness scenarios,” the court informed the jury, without specific reference to the detectives’ interrogation of Mr. Lee, the interaction of the young witnesses, or defense counsel‘s assertions during closing argument, that as it weighed the issue of credibility, it could “consider all evidence, direct or circumstantial, concerning the circumstances of making the statements.” Although the jury sent a note to the court the following day, indicating that it was “so divided on the fundamental evidence that reaching unanimity seems impossible,” it did not express further confusion concerning
Merger of Convictions
We summarily dispose of Mr. Foreman‘s contention that some of his convictions merge. The government agrees that he may not be convicted of both first-degree felony murder and first-degree premeditated murder of Mr. Godleski. See Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991) (“When there is only one killing, the defendant may not be convicted of more than one murder.“). In addition, the two PFCV convictions relating to each murder conviction also merge. See Lester v. United States, 25 A.3d 867, 872 (D.C. 2011) (quoting Morris v. United States, 622 A.2d 1116, 1130 (D.C. 1993)) (“[W]here two of appellant‘s convictions ‘merge to become one crime of violence . . ., there can be only one associated offense of [PFCV].‘“). Accordingly, we remand the case to the trial court with instructions to vacate either the felony murder or the first-degree murder conviction, and to vacate one of the associated PFCV convictions.
Mr. Foreman concedes that the predicate convictions of attempted robbery and premeditated murder do not merge because “each requires proof of a factual element that the other does not.” Nevertheless, he contends that the associated PFCV convictions do merge because “they arise from a single possession of a weapon during a single violent act.” The government argues that the associated PFCV convictions do not merge under the “fresh impulse” or “fork-in-the-road” test, and that “after attempting to rob [Mr.] Godleski, [Mr. Foreman] faced a clear fork in the road before making the decision to shoot [Mr.] Godleski at close-range.” Jeremy Bell testified before the grand jury that he saw Mr. Godleski ride past on a bicycle, and heard gunshots. He looked and saw Mr. Foreman firing gunshots at Mr. Godleski. Mr. Godleski fell but then got up and picked up his bicycle. Mr. Foreman “turn[ed] around and looked at the victim, and jogged back towards him.” Mr. Foreman was “over there conversating with [Mr. Godleski].” Jeremy witnessed Mr. Foreman “bend down and pick[] up something,” while Mr. Godleski was standing, and he “heard a single shot go off again.” This evidence demonstrated that Mr. Foreman‘s attempted robbery of Mr. Godleski and his murder of Mr. Godleski resulted from separate impulses, and that he had reached a fork-in-the-road before killing Mr. Godleski. See Gardner v. United States, 698 A.2d 990, 1002 (D.C. 1997) (internal citation and quotation marks omitted) (“[W]hen there is an appreciable period of time between the acts on which two criminal convictions are based, there is no merger, even if the interval is quite brief.“) In sum, we agree with the government that the PFCV convictions associated with the attempted robbery and murder convictions do not merge.
Accordingly, for the foregoing reasons, we generally affirm the trial court‘s judgment but we remand the case to the trial court with instructions to vacate either the
So ordered.