*1 testimony important issue, is an fought cases of “both counsel the case hard” and reversible error based on a missing witness jury, having that “the heard both sides of argument or typically instruction have con- case, would be able to render fair cerned the credibility. defendant’s own See Smith, verdict”); supra (noting at 167 Simmons, supra (in gun case, possession “during the trial identification [an witness’] “missing” witness allegedly was with de- credibility powers of recollection were fendant in gun found); car where fully throughout lengthy tested direct and Dent, supra at 172 (“missing” alibi witness- cross-examination” and therefore that es); Coombs, supra at 1316 n. 7 evidence, believed, if strong). The trial (same); v. Givens United supra at judgment court’s on this issue should be (“missing” eyewitness crime).50 Jenkins, given significant weight. See su- 585; Smith,
Finally, pra supra the trial at court’s at 167. instruction to the jury at the end of missing argu witness reasons, For all these we can with say ment mitigated the adverse inference to be confidence that neither the race anal relay drawn prosecutor’s from the rhetorical ogy missing nor the witness argument sub question: “Why didn’t get Rositta on the stantially swayed jury’s verdict. Kot prosecutor stand?” The missing ended his teakos, supra, 328 U.S. at at witness comments stating “Mary 1248. we have Since concluded that Bedney didn’t lie” but that “the witnesses trial court did not commit reversible error put up by lied.” The [defense counsel] any other respect, appellants’ convictions court interrupted to tell the jury: “[Y]ou are affirmed. will disregard counsel’s characterization of Affirmed. who was telling the truth and who was not.
It’s for you to make that determination.” was, moreover,
There “no missing witness given
instruction by the trial court to com
pound the effect of the prosecutor’s com
ments,” Conyers, supra at by lending
them weight “the of law.” Young, supra,
150 U.S.App.D.C. 943; 463 F.2d at
see Burgess 142 U.S.App. D.C. HEAD, F.2d Appellant, James M. Compare Givens, supra (trial at 28 court’s overruling of defense objection “inevitably STATES, Appellee. UNITED had the effect of enhancing the govern position ment’s and weakening that of the No. 80-951. defense”).51 Appeals. District of Columbia Court of noted, As we have against Argued March appellants Moreover, was strong. in deny- ing appellant’s motion mistrial, for a Sept. Decided trial court noted that the missing witness argument up made only “a few minutes” in week-long trial, Bates, see supra at
and that the case was “vigorously defend- Jenkins,
ed.” supra See (according at 585
significance to trial court’s finding testimony: they Ross’s could have concluded even where issue affected was defend- Bedney willing, price, credibility). for a to “free” ant’s one of her assailants. “missing 51. The standard witness” instruction Jenkins, supra Jury (misconduct 50. Cf. at 585 not Criminal Instructions the District prejudicial, given strength government’s (3d 1978). No. 2.41 ed. Columbia, *4 Md., Rockville, Shapiro, ap- M.
Samuel court, by appellant. pointed Voelker, Atty., E. Asst. Kathleen U.S. D.C., with whom F.C. Washington, Charles Ruff, at the time the brief was Atty., U.S. filed, Atty., Asst. at the Terry, John A. U.S. filed, and D. time the brief was Steven D.C., Gordon, Washington, Atty., Asst. U.S. brief, appellee. were on the PRYOR, KELLY, KERN and As- Before Judges. sociate PRYOR, Judge: Associate was convicted jury appellant After a trial murder while arm- felony of two counts of ed,1 of murder premeditated two counts armed,2 kidnap- armed while four counts of robbery.4 armed ing,3 and two counts of (1) delay that the between Appellant argues a right trial him his arrest and denied 22-2401, Id., 22-2101, 1. D.C.Code -3202. 3. -3202. §§ §§ 22-2901, Id., -3202. Id. §§ trial; he was (2) probably position insufficient in the same where speedy that there was convictions; (3) that support evidence to his found. instructed the incorrectly trial court approximately Morton testified (4)
jury aiding abetting; as to appellant came to morning a.m. the next admitting the trial court erred in him Maryland repay Morton’s home agree We there was insuf- other crimes. to Mor- According Head owed. money support ficient evidence to the armed kid- ton, that Williams had trans- Head stated naping accordingly convictions we re- that Wil- ported him in Williams’ car and Finding appellant’s verse them. other ar- Morton. Clad in his liams wanted to talk to guments unpersuasive, we affirm the con- bathrobe, car Morton went out to Williams’ all victions on other counts. he saw but did not see Williams. Instead stated
two other men in the car. Morton I or appellant, wearing beige who was head yellow jacket, put pistol to Morton’s deaths, This case arose from the shooting get and told him to in the car 4-5, 1977, on the evening December right would shoot him. Morton entered the Rowe, Edward Williams and em- Angelo rear of the car and sat next to the man seat ployees aof service station in Northeast The man in the holding shotgun or rifle. Morton, Washington owned George Jr. seat hit Morton in the mouth with front On the afternoon of ap- away, to drive pistol. appellant began As pellant James Head visited the service sta- the car door next to him and opened Morton *5 tion when both men were on duty. Shortly away, ran dove out of the car. As Morton appeared afterwards Morton at the station him, yelling, “shoot he could hear someone and observed talking to Rowe. After him.” No shots were fired. shoot Appellant approached Morton to discuss the fif- running hiding approximately repayment of an outstanding loan of mon- minutes, the home of teen Morton reached ey. afterwards, Shortly Morton left the friends; the immediately he called some premises. He p.m. returned around 9:50 who had been at police and another friend However, cash money a order for a friend. police The arrived and drove his house. Williams, Rowe and who were only the em- they his residence where recov- him back to ployees duty on that night, were absent and cartridge below Morton’s ered a .30-30 the station was locked but not closed for the house near the curb. evening. The tow truck was outside of the morn- bay lights of the station and the were Between 4 and 5 o’clockthat same pump she on. Rowe’s car was visible testified ing, but Williams’ Lorraine Warren car, her win- green with a a shot and looked out Mercury top, white was heard loud walking men in the di- Surmising employees absent. that his had to see two dow eat, Kelly the Miller gone her house near out to Morton left. Around rection of of Washington. One p.m. in Northeast passed again he the station and noticed School carry- was men, beige jacket, bay. wearing the tow truck was back in its the into a shotgun. They got ing a rifle or night park police On the same two offi- top sped with a white car dark-colored Dupont cers on routine in Fort Park patrol lights. the turning without on away discovered the face body lying of Williams to work walking 7 a.m. a man down the three At around ground having on been shot Angelo as body, .38 later identified times in the back of the head. Two found of playground Rowe, face down on gun lying caliber bullets fired from the same A found detective Kelly near cali- Miller School. body were found and one .38 under a caliber bullet a flattened lead .38 possibly ber bullet fired from a different later autopsy An body. hat next to the gun subsequently recovered from Wil- shot in the had been that Rowe liams’ An revealed that Wil- revealed autopsy head. velocity projectile, proba- high with a gun liams died from shot wounds to the head had where he was position bly in the same range head fired at close when he was found. The wound was consistent with again. minutes and left said that she She rifle, inflicted by a .30-.30 caliber but stayed game until ended and arrived no rifle bullet was found. home at around 2:30 a.m.
That morning when Morton returned to gas his station he discovered that his calcu- II lator and approximately fifteen blank First, appellant argues that the delay be- checks were missing. He papers noticed tween arrest and trial denied him his Sixth strewn all over his desk and pry fresh Amendment right speedy trial. Govern- safe, marks on the approxi- contained ing four-pronged our review is the test $1,887. rifle, mately .30-30, His which he Wingo, enunciated in Barker v. kept chamber, loaded with one round in the (1972), missing. also A box of ammunition at length under weigh which we caliber, weight, station matched the for the delay, delay, appel- reasons manufacturer’s brand of the shell found preju- lant’s and the right, assertion of outside Morton’s home. A expert firearms dice to him. at trial also markings testified that one length delay slightly less cartridge in the box showed that it had months, dating appellant’s than from thirty been through worked the action of the same weapon extending arrest on 1977 and cartridge as the found outside Mor- Where, here, until ton’s home. trial on June as Rowe’s car was also found at has delay year, appellant station. exceeds one vio prima established a facie constitutional The police located Williams’ car later that States, D.C.App., lation. Asbell v. United day one block from the residence appel- 436 A.2d Branch girlfriend, lant’s former who testified that she had not seen him for years prior five must “con Accordingly, trial. A detective found missing Morton’s vincingly outweigh” appellant’s assertions calculator right under the front seat of the right. a denial of his Amendment Sixth car. *6 States, D.C.App., Warren v. United 436 Appellant presented an alibi defense that 821, States, (1981); Day A.2d 834 v. United on evening 4, of December he attended 957, (1978). 970 D.C.App., 390 A.2d How a poker game hosted John Alston at ever, complex the more and serious the Staley’s Robert house in Maryland. Testi- it charges, government easier is for fying for the government, Alston explained Wingo, to meet v. burden. Barker that appellant arrived at poker game at 2192; 531, supra, 407 at 92 at U.S. S.Ct. approximately 8 or 9 p.m., shortly left States, D.C.App., v. Strickland United 389 thereafter, and thirty forty returned to 1325, 1329 denied, (1978), A.2d cert. 440 U.S. minutes later with a .38 pistol caliber which 926, 1258, (1979). 99 L.Ed.2d 481 S.Ct. 59 he keep asked Alston to for him. Alston it spent unloaded and found two shells and examining In the reasons for one shell lighter weight in with a flat head. responsibility we must on the delay, impose Appellant asked Alston for ammunition government delays conges due to court which give Alston refused to him. Taking deliberation, tion we judicial weigh and but gun, his appellant within departed period delay these more neutral reasons for less of forty-five minutes to an hour. He re- than delib heavily against government a.m., turned between played 1 and 2 and erate Barker v. Win delay. tactics to See poker approximately forty-five minutes. 2192; 531, go, supra, 407 at 92 at U.S. S.Ct. 834; States, witness, supra Day Warren v. at government Another United Lorretta Blackstone, States, In the in supra v. United at 965. testified was at Staley’s one week evening, house that but that he left stant the nine months and 6, and did not return 1977 until in for one two hours. from arrest on December Upon returning, played poker 13, he for a few are attrib- September dictment on 1978
621 government.5 govern- utable to the there is no indication that the part At least this period is a neutral inherent in the delay tactical to ment made a deliberate decision operation grand jury sys of the court and delay the trial. States,
tem. See Turner v. D.C. United assertion of his Reviewing appellant’s 542, App., (1982); 443 A.2d 546 v. Unit Day trial, we find that he did right speedy to a States, addition, ed at supra this 26, 1978, so several times: October period partially investiga attributable to September 2, 17, 1979, 1980.7 early and June The delay, tive fundamentally differs right is an ex speedy assertion of a trial from delay solely gain undertaken “to tacti strong factor entitled to tremely important cal advantage over the accused.” Unit See weight. Wingo, Barker v. su evidentiary Marion, 307, 324, ed States v. 404 92 U.S. 2192; 531, Be pra 407 at 92 S.Ct. at U.S. 455, 465, (1971). S.Ct. States, D.C.App., thea v. 395 A.2d United remaining Of the twenty one- 787, months, congested half court docket accounted for thirteen and one-half months factor, prejudice ap The final to of delay, which is attributable to the light of certain inter pellant, is assessed However, government. six of those months ests, Speedy pro which the Trial Clause resulted from continuances which were re (1) preventing oppressive tects: undue and corded with the appellant: consent of incarceration; (2) pretrial lessening the ac 11, continuance January from 1979 to Feb concern; (3) anxiety cused’s limit 12, ruary 1979 and the continuance from long that a will ing possibility delay April September 17, 1979 to Ap Wingo, Barker v. impair his defense. See pellant’s concurrence causes this court to 2192; at at supra 407 U.S. S.Ct. weight accord minimal to that six-month Marion, supra at United States U.S. States, delay. Campbell v. See D.C. 463; Campbell S.Ct. App., 391 A.2d Reed v. at 286. A need not supra defendant pre to affirmatively prejudice demonstrate denied, 439 U.S. grounds trial where there speedy vail on prosecutor’s L.Ed.2d 183 The illness delay. been Moore v. Arizo has excessive February 1979 caused a two-month na, 188, 189, delay, which is also attributable to (1973); Warren v. United L.Ed.2d 183 government, although not the result of a However, States, supra at 835. if a defend deliberate tactic. any prejudice, ant does not assert remaining five months are attributa- record argue can facts of ble appellant: three his months due to and inferences drawn from defendant’s hospitalization counsel’s on the trial date of so. Asbell v. United failure do *7 1979; 19, November two months from States, 814; supra supra Day v. United 17, 1980, February April 12 to in which he Thus, alone, al significant delay at 971. speedy waived his right trial to enable his but though chargeable government to the case;6 prepare new counsel to a plus tactic to resulting from a deliberate not days during few additional in May and June advantage, an does not violate gain requested which his counsel a continuance v. trial clause. Asbell United Thus, speedy due to in a conflict his schedule. States, 814; States, Day v. United supra at nearly thirty-month delay most of the is factors, supra attributable to neutral institutional at 973. jacket specifically period state
5.The
between arrest and indictment
6. Notations on the case
right
speedy
evaluating
speedy
appellant
must
in
waived his
trial
be considered
a
trial
that
MacDonald,
period.
clause claim. United States
two-month
v.
this
U.S. -,
1497, 1501,
102
In the instant ever, by case complicated nature of the 1978, 6, released on bond on January one and the charges prejudice minimal which month addition, after his arrest. He that he alleges despite appellant suffered. In his anxiety suffered from repeated several ar trial early right, assertion of his he speedy following rests the initial one8 and from totalling in six concurred continuances his questioning girlfriend his wife. delay months and caused a five-month him- He also his alleges hampered incarceration delay self. that the Consequently, we hold case preparation memory and that his in case a Speedy this did not constitute those of alibi certain witnesses have faded warranting Trial violation dismissal Clause over time. of the indictment. considering
When or faded memories dif- preparation, ficulties in case is the court Ill speculation. realm of v. Asbell United argues that there Appellant also States, supra Appellant at 814. specifically support his con was insufficient evidence to argues that he was unable locate evidence, Upon review of the this victions. night clerk at his residence who could have there was court must determine whether testified as to time he arrived home. sufficient evidence from which reasonable Even if the testimony clerk’s would have juror guilt beyond a fairly conclude corroborated Head’s that he ar- testimony v. E.g., doubt. Fox United reasonable rived 6 home between and 6:30 a.m. on (1980); States, D.C.App., 421 A.2d testimony that does not v. Curley elucidate Head’s whereabouts that earlier 392, 160 denied, F.2d morning previous evening or on the when (1947). 1511,91 L.Ed. 1850 U.S. Rowe Appellant and Williams were killed. so, distinguish not doing the court does specifically alleges also that he would have evidence. direct and circumstantial between witness, called another alibi if witness’ that States, D.C.App., See Jackson United memory had not faded over time. How- v. United Byrd A.2d ever, post-trial at a hearing, that witness 1225, 1229 Rath 388 A.2d D.C.App., testified that his estimates of time at the in the light the evidence er we must view poker game would have been aby incorrect government, recog to the most favorable half even an hour on the day after credibil jury’s right to determine nizing game. speculation It mere to conclude evidence, witnesses, weigh the ity of those estimates would have become of fact. Clark justifiable draw inferences more inaccurate over time. Similarly spec- appellant’s allegations ulative are States, supra at (1980); Byrd v. other memories of his witnesses also faded 1229. This court will reverse conviction Thus, over appellant may time. while have upon there is no only where prejudice anxiety, suffered some from his guilt beyond mind could infer reasonable we do not find his defense im- v. District of doubt. Dunham reasonable paired, pretrial he suffered undue Columbia, A.2d D.C.App., 442 incarceration. States, D.C. (1982); Cunningham v. United factors, The evi Balancing these we conclude that A.2d App., 408 inference, rather support has met its of re- an burden dence must *8 each element futing appellant’s prima speculation, facie case. Of the than as to mere a United twenty-nine delay, and half month almost of an offense. Smothers v. 306, all In the chargeable of it is to the D.C.App., each ease, will conviction due to neutral institutional reasons or in- we review instant offset, vestigative delay. delay The is how- in turn. 6, Appellant alleges
8. that he was arrested 15 or subsequent January 16 times to his release on ” Frendak v. decision kill.’ to Premeditated MuRder While Armed supra United States (quoting at 371 To first-degree pre establish 216-17, Sutton, 208, armed, govern meditated murder while the 1202, (1969) (footnote 1210-11 omit- F.2d prove, among things, ment must that other of evi- ted)). requires Proof deliberation the accused committed the intention crime “ ‘con- dence the defendant acted with premeditation ally with and deliberation upon precon- and reflection the sideration E.g., Frendak v. while armed. kill; the turning ceived to it over in design States, A.2d ” Id. mind, it A giving thought.’ second 22-2401, see D.C.Code -3202. Al §§ jury premeditation infer and delibera- may though the evidence primarily circum and sufficiently probative tion from facts stantial, it is sufficient jury for a to find circumstances. Harris v. United appellant did the alleged. acts There A.2d How- D.C.App., 375 testimony was pok he to the returned ever, must show the accused on game er the evening of December to kill in cold calmly reached a decision and p.m. sometime between 8:30 and blood, of impulse on or in the heat not with a .38 pistol empty caliber two and Id. passion. Williams, shells. body whose discover was In this ease there is sufficient evidence that night, ed at 10:30 with a was killed .38 a find upon juror reasonable could weapon. caliber Appellant unsuccessfully de- premeditation acted with and sought to obtain more ammunition from According to government’s liberation. the Alston and then poker taking left the game, evidence, appellant poker arrived at the pistol his with him. A .38 bullet caliber game 8 or 9 p.m. around on December with a flattened head was recovered from a was, whose it game shortly asked left hat found next to A body. Rowe’s few subsequently thereafter and returned twice. found, woman, hours before the body was a to an played poker He for about 45 minutes who shot, had heard a loud a observed man early in leaving hour before the final time carrying shotgun a or a rifle another and of December 1977. From morning walking away man from the direction of jury reasonably in- this evidence Kelly Miller playground a car and enter by was establishing fer that Head an alibi similar to Williams’ away and drive without then arriving before both the murders and driver, turning lights. who had the alibi to the strengthened returning rifle, carrying been the shotgun or was killings. poker in between the two game wearing a jacket, tan which was the color concerning The evidence the location appellant’s jacket. of car Williams’ condition of bodies of both Rowe located next morning one block from similarly supports an inference of Williams the residence of appellant’s girl former fact and deliberation. The premeditation and a friend few blocks from the barber head, at probably that both were shot he shop where worked. they lay as face down on range close Introduced to show scheme or common rise to an inference ground gives of calcu- motive, plan, identity was evidence of act. plan impulsive lated rather than an appellant’s alleged Morton in abduction of pis- possession of a .38 caliber Appellant’s early morning of poker game, tol shells at the spent with car, Driving Williams’ which had not been simi- additional ammunition request his gas p.m. station since before 9:50 Evi- to the same inference. larly give rise previous evening, appellant Morton drew attempted abduction dence of Head’s house on pretext talking out of his Williams’ car after Williams’ Morton in Williams, who had killed. already been body body found and before Rowe’s re Establishing premeditation plan is evidence of calculated found quires “ showing gave the defendant jury premedita- could infer from which
‘thought, acting, before the idea of the murder tion and deliberation taking human life and a definite Rowe. [reached]
624 Kidnaping v. (1979); Hawkins ARMED States, D.C.App., 399 A.2d kidnaping The elements of armed 22-2901, (1979); see D.C.Code §§ require, among things, showing other possession actual -3202. Immediate refers appellant while armed or seized detained the victim can to the area within which 22-2101, the victim. D.C.Code §§ reasonably expected be to exercise some -3202. The involuntary nature of the sei property. control over the physical zure and detention is the essence of the 284, 293, Spears, States v. kidnaping. crime of Smothers v. United (1971); Rouse v. 449 F.2d see Unit- 313; States, supra at United States v. Wol 1220; States, supra ed at Jones v. United ford, U.S.App.D.C. 1, 444 F.2d D.C.App., 362 A.2d see Chatwin v. United 455, 464, 90 L.Ed. inquiry then is whether a rea Our Smothers, In this court found beyond find reasona juror sonable could there was insufficient support evidence to in the appellant participated ble doubt that woman, an inference that a who later was and Rowe. armed of Williams robbery raped and killed at Elizabeths Hospital, St. circumstances al account the Taking into had been taken place from one to another the deaths of surrounding ready described against her will. Id. at 313. The court so victims, that the two men the two we note despite held evidence that she was at or duty gas at the only employees were the Mall, near Iverson go she intended to 4, 1977. of December night station on the house, to her sister’s said he was evening time that station Some pistol wanted to take his to the mall uncle’s locked, found with keys and the to it were there, to rob women that he he admitted Rowe. evidence that someone There is no woman, shot a and that he subsequently juror locked. A broke into it after it was used her car and watch. Id. We stressed the calculator reasonably infer that signs struggle there were no of a station, rifle, kept were normally the car and that the victim suffered all her of Rowe and possession taken from the injuries death, immediately before accord Morton, owner, gave Williams. The station ing to medical evidence. Id. that, during early explicit testimony In the instant case the arm appellant, morning, hours of the next has not introduced either direct or circum the car him into pistol, ed with a forced stantial evidence that of Wil taking attempted ab by owned Williams and place liams and Rowe from one to another of the car occupant duct him. Another against their gas will. Morton’s sta the one possessed a rifle similar to stolen. tion, although only partially closed for the later, A time the owner’s calculator short locked, night, lights were turned the same vehicle recovered from sign struggle off and there was no of a one block from had been abandoned any there. Nor was there indication of a acquaint appellant’s residence of one of struggle in or any Williams’ car ances. that Rowe and Williams left the station other than voluntarily. Accordingly, we re addressing aspect this verse the convictions for four counts with our dissent major our difference kidnaping. armed impact seems to turn on ing colleague the circumstantial legal sufficiency Armed RobbeRY Al charge. as to this upon evidence relied witness prosecution A was no robbery though conviction for armed re there about the robber quires showing taking testify directly of a of who could property evidence, ies, clear ac there was nonetheless value while armed from the immediate circumstances, corpus de- of a possession against tual of another his will amid violent carried was taken and by putting property force or violence or in fear. lecti. The driving the car was seen away. Appellant Rouse United
625
belonging to one
22-2401,
of the victims
in pos
requirement
-3202. This
of an
§§
session of the stolen calculator at a time
underlying felony operates as a mechanism
proximate to
alleged
the
offenses. We
can
by
jury
which the
infer the state of
think this is a case
important
where it is
to
required
first-degree
mind
murder.
reiterate that
may
circumstantial evidence
States,
Waller v.
supra
United
at 809.
In
be equally
probative
evidence,
as
as direct
the
jury
this case
trial court instructed the
States,
Holland v.
121, 140,
348 U.S.
that
that
they
must find
inflicted
127, 139,
(1954);
not directly identified as the actual
court,
also
pretrial ruling,
in a
had
trial
the jury could infer from the evidence that
the evi
probativity
found the
of
expressly
present
participated
in
effect.
outweighed
prejudicial
dence
its
Although
murders and robberies.
this
trial court abused its
We do not think the
evidence tended to
prove
appellant was
Due
admitting
the evidence.
discretion
principal,
aiding
abetting
an
instruc
nature of the
highly
to the
circumstantial
prosecutor
tion was not error. The
did not
value of
probative
in this
they
prove
appel
contend
high.
helps
lant
It also
personally
alleged
committed each of the acts
abduction
the events that
necessary
complete
picture
to
constitute
offenses
following
locked,
occurred
body
the time
to it
keys
Williams’
the station was
and the
prior
was found and
time
evi-
Rowe’s were found with Rowe. There is no
body was
that someone
into it
it
Although
found.
the evidence
dence
broke
after
was locked.” Ante It
alibi,
contradicts
then sur-
appellant’s
resulting
prejudice does not
mises a
could infer that
calculator
outweigh
jury
its probative
Accordingly,
possession
value.
rifle were taken from
we affirm the trial
This, plus
court’s
Morton’s
admission
the evidence
the Rowe
Williams.
abduction,
evi-
purposes specified.
attempted
amounts
“clear
*12
dence,
circumstances,
cor-
amid violent
of a
sum,
we reverse and vacate the convic-
Ante at 624.
I
pus delecti.”
do not
tions for
kidnaping;
armed
we affirm the
me, given
agree. To
all the circumstantial
other convictions.
rea-
majority
identify,
evidence the
can
no
Affirmed in part;
part.
reversed in
beyond
juror
sonable
infer
a reasona-
appellant feloniously
ble doubt that
carried
KELLY,
dissenting in
Judge,
Associate
away
alleged
the items
to have been stolen
part:
violence,
with force
less
force
by
much
I cannot
with
agree
those
the
sections of
of arms.
majority opinion which affirm the two
to
an
attempt
apply
The
ancient
infer
(from
counts of
robbery
armed
Williams a
ence, possession
recently
propert
of
stolen
rifle,
car;
calculator, and
rifle
from Rowe a
fails
y,1
support
to
the
convictions
robbery
and calculator) and the
felony
two counts of
First,
respects.
theory
in two
the
appears
murder while armed.
opinion;
first time in the
it
majority
the
hand,
theOn
one
in reversing the two
upon
government
not
by
was
relied
the
counts of kidnaping while
with in-
armed
jury
Second,
told
it.
the
the
was not
of
tent to steal
the
kidnap-
two counts of
permissible to
an
prove
inference is not
assault,
ing while armed with intent
to
rather it
an
robbery;
permits
armed
infer
concur,
decision in
I
we
that
find
of
who
identity
person
ence
commit
In the instant case the
has
White v.
proven robbery.
ted
not
introduced either direct or circum- (1973); Pen
based on an underlying robbery conviction.
The case cited by majority say
robbery continuing is a offense deals with
the immediate pursuit of a felony suspect.3
It is not on point; it cannot apply to the
circumstances of this case.
Giving aiding abetting instruc-
tion, in my analysis of the is also
suspect. I do not discuss the issue since my error,
judgment is that any, if
harmless. Kotteakos v. United
U.S.
Morris D. STATES, Appellee.
UNITED
No. 81-756. D.C., Stern, ap- Washington, Richard S. District of Appeals. Columbia Court of court, pointed appellant. by this Argued Aug. Bollwerk, Atty., Asst. Helen M. U.S. Decided Oct. D.C., Washington, Stanley whom S. with Harris, Atty., Terry, Asst. U.S. John A. U.S. D.C., at the time the Atty., Washington, filed, Fisher, brief was and John R. Asst. D.C., were on the Atty., Washington, U.S. brief, appellee. KERN, BELSON, As-
Before MACK sociate Judges.
PER CURIAM:
Appellant,
attempt
convicted
vending ma
breaking
entering
ed
of a
chine,
sentence as a
received an enhanced
to D.C.Code
repeat
pursuant
offender
that,
22-104(a).
argues
appeal
He
§
he committed the offense which
because
penalty
the enhanced
formed the basis for
for which he received the
after the crime
States, 3. Clark v. United
Carter v.
L.Ed.2d 613
(1955),
cert.
U.S.App.D.C.
See also