Joseph JENKINS, Edward E. Warren, Darnell N. Anderson, & James Bates, Appellants, v. UNITED STATES, Appellee.
Nos. 11-CF-106, 11-CF-745, 11-CF-162, 11-CF-281.
District of Columbia Court of Appeals.
Argued Feb. 12, 2015. Decided April 23, 2015.
113 A.3d 535
The order of the OAH is therefore Vacated and remanded.
Gregory S. Smith, Washington, DC, for appellant Warren.
Jason M. Knott, with whom William W. Taylor III, Washington, DC, was on the brief, for appellant Anderson.
Thomas C. Paynter for appellant Bates.
John P. Gidez, 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, and David P. Saybolt, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, and PRYOR and FARRELL, Senior Judges.
FARRELL, Senior Judge:
Appellants collectively were indicted for a series of violent crimes and related other offenses arising from what the government alleged was a conspiracy to retaliate against a rival “crew” or street gang primarily for the shooting death of William “Boo” Foster, a leader of the so-called Todd Place Crew (or “TPC“) of which appellants were members.
The jury acquitted appellants of the conspiracy and declined as well to convict them based on related vicarious liability principles. Instead it convicted them of substantive crimes as follows: Jenkins, Bates, and Anderson were found guilty of the April 15, 2008, premeditated murder of Gary English and assault with a dangerous weapon on bystander John Green; Jenkins and Anderson, but not Bates, were convicted of related firearms offenses. Jenkins and Warren were found guilty of carrying
Although appellants assign multiple errors as a basis for reversal of their convictions, none persuades us except that some of the convictions merged and must be vacated on remand.
I. The Facts
The victims of all of the alleged shootings, except for John Green, were shown to be members of the rival T Street Crew (“or TSC“), which the Todd Place Crew held responsible for the killing of William Foster. The two crews, while engaged in drug trafficking in their respective neighborhoods, had begun “beefing” by 2008, with frequent altercations and assaults that came to a head on April 14, 2008, when Foster was shot to death by someone the TPC believed was associated with the T Street Crew. According to Robert Davenport, a TPC insider who testified for the government, there was an immediate “mutual understanding within the [TPC]” that a TSC member would be killed in retaliation.
The day after the shooting, Davenport testified, TPC members gathered at the house of crew member Ernest Benjamin. Having learned the location of a TSC member, they left the house in two cars, with Bates driving and Anderson and Jenkins occupying the first vehicle, a white Chevrolet HHR or PT Cruiser. (All three defendants had been seen in that car earlier the same day.) An eyewitness who knew Bates, Raymond Devese, saw him at the wheel of the car as it pulled up to where TSC member Gary English had just parked his car. Multiple gunshots from two handguns, a .45 caliber Sturm Ruger semi-automatic and a Hi-Point .45 caliber, were fired from the white car, striking English repeatedly and killing him, and grazing Green, a bystander.
According to Davenport, he and the three other occupants (including appellant Warren) of the second car, a blue Mercury Grand Marquis, arrived after the white car had fled the shooting scene. When they returned to Benjamin‘s house Bates, Anderson, and Jenkins were there and Anderson gestured with a Ruger .45 caliber pistol as if to say “we just got finished shooting at somebody.”2 Bates appeared nervous and concerned that eyewitness Devese had seen his face. Davenport and the others “didnt feel as though it was settled” with the English shooting, and Davenport believed a “lot more had to take place.”
On May 10, 2008, Antonio Ingram, a member of the T Street Crew, was shot repeatedly in an altercation in which Warren was also shot. Jenkins confessed to his sister that Warren had been leaving a carry-out when “somebody started shooting,” so Jenkins returned fire. Although the government saw the Ingram shooting as a second retaliation for the Foster homicide, the jury convicted both Jenkins and Warren of only weapons offenses and related street gang charges, evidently accepting their partial defense that regardless of what motivated them to bring guns to the scene, Ingram was shot in self-defense.
Finally, Bates was found guilty of shooting TSC members Ricardo Russell and Chaquon Wingard from a dark-colored car on May 26, 2008, based on testimony by Jamila Hughes—admitted without objection—that she was present and heard the gunshots, then overheard Russell say that Bates had been the shooter.4
II. Severance of Defendants
Before trial, appellant Warren gave written statements to codefendants Bates, Jenkins, and English claiming that he, not they, had been in the white car on April 15 and shot English with a Ruger .45 caliber pistol. Warren then took the stand in the defense case and “admit[ted] to shooting and killing Gary English” because, he said, English had “sold [him] a gun that didn‘t work.” An unnamed man Warren did not know had driven Davenport and himself to the scene, where both fired shots at English. Although Warren did not say so expressly, the implication of his testimony was that none of the defendants except himself took part in the shooting.
Warren‘s attorney, Michael Madden, along with the other defense counsel, had aggressively attacked the government‘s
Anderson, Bates, and Jenkins now renew their contention that, in a case where the Gary English murder was the centerpiece of the prosecution, only a mistrial and severance from Warren could undo the prejudice from his testimony visibly disbelieved by his own lawyer in questioning him and in summation. These appellants, Jenkins argues, “really confronted a conflict between [their] defense[s] and the assertions of [their] co-defendant‘s attorney, which amounted to unsworn testimony” that Madden knew his client believed the truth to be other than his testimony. Anderson likewise argues that the combined suggestions from Madden and the prosecutor of “pressure from the co-defendants” and Madden‘s knowledge, “based on his previous privileged conversations with Warren, that his client was falsely accepting responsibility,” made Warren‘s defense “irreconcilable with Anderson‘s and put [Madden] in the role of a second prosecutor.”
Judge Leibovitz, however, carefully weighed appellants’ claims of prejudice from the joint trial each time they were raised. For the reasons that follow, she did not abuse her discretion in finding that neither the manner in which Warren‘s testimony was presented nor the comments made on it in summation jeopardized appellants’ right to a fair trial.
Appellants’ burden to win reversal on this ground is not an easy one. Given the “vital role” played by joint trials of defendants indicted together and properly joined, Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)), the trial court‘s denial of a severance may be disturbed “only upon a clear showing that it has abused its considerable discretion.” Moore v. United States, 927 A.2d 1040, 1056 (D.C.2007) (citation and internal quotation marks omitted). Substantively, the trial court “should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or would prevent
Like the trial judge, we conclude that Warren‘s testimony, whatever drama (“atmospherics“) it injected into the trial, did not compromise either appellants’ right to mount an effective defense or the jury‘s ability to render a reliable judgment. Warren‘s assumption of sole blame, of course, was not literally in conflict with Anderson‘s, Bates‘, or Jenkins’ defense that they had nothing to do with the Gary English killing. And the argument that when Madden in effect cross-examined his client about his story the jury was led to infer that, from “privileged” communications beforehand, Madden knew that Warren knew the truth to be otherwise—Warren in effect becoming another witness against them—is highly speculative on this record. Were this a case in which the proof convicting the appellants other than Warren of the English murder were paper-thin, the danger might be realistic that a jury, looking for more, would draw inculpatory inferences from Madden‘s role as “second prosecutor” or Warren‘s dubious account by negative implication. But it was not. As recounted earlier, Bates was identified as driving the white car from which the fatal shots were fired, the same car he had been seen driving earlier that day with Anderson and Jenkins as passengers. The murder weapons were retrieved from the cemetery after Anderson tossed something from his waist while being chased past the cemetery; and Jenkins related his efforts to return there and “scoop up” the guns to an Anderson worried that the police had found them. This evidence, corroborating Davenport‘s detailed account of the defendants’ retaliatory motive for the shooting, greatly reduced the risk that the jury had need to look to any bolstering of the prosecution‘s case from Madden‘s hostility in presenting Warren‘s testimony or in commenting on it in closing. As to any residual risk, the judge had announced her readiness from the start to give any neutralizing instruction requested.
For these reasons, too, appellants’ argument that Warren‘s testimony resulted in antagonistic defenses enough to require severance is unconvincing. The government cites our past decisions holding that irreconcilable defenses do not require severance if “the conflict in defenses alone would not sway the jury” because there is enough evidence of the movant‘s guilt “beyond that required for ... a motion for judgment of acquittal.” Tillman v. United States, 519 A.2d 166, 171 (D.C.1986) (quoting Ready v. United States, 445 A.2d 982, 987 (D.C.1982)). The recited evidence of guilt meets this standard, but even if that standard has been superceded by the Supreme Court‘s Zafiro test,6 the conflict between what appellants deem their credible attack on the government‘s case and Warren‘s account that Madden himself
Appellants further argue that attorney Madden—and the prosecutor—went beyond disparaging Warren‘s account to imply that it stemmed from pressure or coercion the co-defendants had exerted on him. Our decisions require the trial court to guard against unfounded assertions that a witness was threatened or coerced by a defendant or persons associated with him. See, e.g., Mercer v. United States, 724 A.2d 1176, 1184 (D.C.1999). But the trial judge did not view Madden‘s questions to Warren as implying such pressure, nor do we. The government accurately characterizes the record on this point in its brief:
Trial counsel‘s questions about whether Warren knew his co-defendants; whether he had any conversations with any of them outside the courtroom; whether there were any separation orders [while they were all in jail]; whether he was “enemies” with Jenkins (answer: “no“); whether he “look[ed] up” to any of his co-defendants (answer: “no“); whether he wanted to see any of them go to jail (answer: “[t]hey don‘t have nothing to do with me“); and whether he believed he was “going to die in prison,” and “[had] nothing to lose” by admitting to the English murder because he was already serving 40-year sentences in two other murder cases (answer: “no“) [—these questions] did not suggest directly, or by implication, that Warren was pressured by any of his codefendants to admit to the English murder.
Appellants also point to testimony by Warren‘s brother that in a phone call Warren told him that “he had to [take the rap].” On hearing this testimony the judge interrupted the questioning (“I‘m going to stop you there“), and Madden rephrased his question to ask, “Is it true that‘s what he said, ‘I‘m going to take the rap?‘“, the brother replying “Yes.” The judge then twice told the jury that the brother‘s statement could not be “consid-er[ed] ... against any of the other defendants ... in this case.” Lastly, appellants highlight the prosecutor‘s statement in rebuttal argument that one reason for Warren‘s exculpatory testimony was “the fact of crew loyalty,” but the other was “the ... possibility [that] ... somebody leaned on him.” The judge immediately “str[uck] that last statement by counsel” and told the jury to “disregard it” because “there‘s absolutely no evidence whatsoever in this record that anybody leaned on anybody.”
All told, we agree with Judge Leibovitz that Warren‘s testimony, as it unfolded and was commented on in closing, posed no “serious risk“—certainly none that could not “be cured with proper instructions,” Zafiro, 506 U.S. at 539, 540—of distracting the jury from evaluation of the evidence carefully and separately as to each defendant, as it was told to do. And we have strong reason to believe this is just what the jury did. It acquitted all defendants of conspiracy and rejected vicarious liability as a basis for the substantive charges. It acquitted Warren and co-defendant Obie English of the Gary English murder, and Jenkins and Warren of the May 10 assault on Antonio Ingram. And it acquitted four of five charged defendants (Anderson, Jenkins,
III. Winfield Evidence
Jenkins and Bates assign error to the trial court‘s exclusion of evidence that Warren had engaged in five other shootings around the same time as the charged crimes. In each case, judging from admissions he made in unrelated proceedings, Warren was acting alone or with accomplices other than a defendant here and “for his own reasons” unrelated to the TPC/TSC feud, and more than once using a firearm “focused upon by the government as [a] tool[ ] of [the] Todd Place [Crew]” (Brief for Jenkins at 38). Their argument that this evidence should have been admitted under Winfield v. United States, 676 A.2d 1 (D.C.1996) (en banc), or as “reverse Drew evidence,”9 see Newman v. United States, 705 A.2d 246 (D.C.1997), did not impress the trial judge and does not persuade us.
The argument is essentially that Warren was a serial, free-lance shooter needing no motive tied to the shooting of TPC leader
Third-party perpetrator evidence offered under Winfield must “tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” Bruce v. United States, 820 A.2d 540, 543 (D.C.2003) (quoting Winfield, 676 A.2d at 4). Even then the judge may exclude the proffered evidence if it is, inter alia, “too speculative with respect to the [alleged] third-party[ ] [perpetrator‘s] guilt” instead of the defendants‘. Resper v. United States, 793 A.2d 450, 460 (D.C.2002) (internal quotation marks omitted). The trial judge correctly reasoned that “the fact that Mr. Warren ... shot at other people with combinations of people who were not Mr. Jenkins or any other charged defendant or by himself or for reasons unrelated to the conspiracy does not ... logically advance the proposition that Mr. Jenkins did not commit ... the [Ingram] shooting ... or other [crimes alleged] in this case.”10 And the proffered facts of the other shootings likewise shared no motive or modus operandi similarity with the charged ones enough to make them plausible candidates for “reverse Drew” admissibility. See Newman, 705 A.2d at 256-57. The judge thus properly exercised her discretion in refusing to let the jury draw speculative inferences from Warren‘s violent proclivity, linked to the charged crimes by nothing more than contemporaneity and his use of “tools of Todd Place” to practice those instincts elsewhere.
IV. Admissibility of Recorded Jail Telephone Conversations
A. The Harvey/Watkins Calls
As related at the outset, insider Davenport gave important testimony for the prosecution describing the existence and motives of the Todd Place Crew including appellants at the relevant times, in particular their angry reaction to Foster‘s murder and plan to retaliate against those held responsible, the TSC. The government sought to corroborate Davenport‘s testimony partly by recorded conversations between unindicted co-conspirator Andre Harvey, in jail at the time, and Ismail Watkins, also a member of the TPC, that discussed the Foster shooting, Gary English‘s resulting murder, additional actions Harvey might take inside jail as further retaliation, and generally the current “score” of violence between the rival crews stemming from the Foster killing and other “beefs.” The trial judge examined transcripts of the proffered recordings and admitted some conversations as statements by co-conspirators in further- ance
Appellants Jenkins and Bates dispute the admissibility of the statements, contending that “a lot of” what Watkins reported to Harvey, and vice-versa, was “simple gossip” reporting events of which neither speaker had “direct knowledge,” so that much of their conversations was “double hearsay” with no foundation laid for the first “level“—the unwitnessed accounts, for example, of “the April 18 bailout [near the cemetery], including who ran and who got away” (Brief for Jenkins at 39).11
These appellants rightly do not dispute the general principle that statements by co-conspirators among themselves during and in furtherance of a conspiracy are admissible as non-hearsay. See Butler v. United States, 481 A.2d 431, 439 (D.C.1984) (adopting
So long as statements further the conspiracy‘s goals in this sense, courts considering the issue have rejected “double hearsay” or lack-of-personal-knowledge objections to their admission. See United States v. McLernon, 746 F.2d 1098, 1105-06 (6th Cir.1984) (“Rule 801(d)(2)(E) ... exempts co-conspirator‘s statements from the hearsay rule. The requirement that the declarant have personal knowledge of his statements in such a case is waived.“); United States v. Ammar, 714 F.2d 238, 254 (3d Cir.1983) (the drafters of the federal co-conspirator rule did not intend “the personal knowledge foundation requirement of Rule 602” to apply to “admissions (including co-conspirator statements) admissible under Rule 801(d)(2)“); United States v. Cogwell, 486 F.2d 823, 832 n. 5 (7th Cir.1973).
Having satisfied herself as a preliminary matter of the existence of the conspiracy and the participation of Watkins and Harvey in it, the trial judge properly exercised her discretion in admitting their statements keeping one another abreast of the TPC‘s completed or planned retaliatory acts as well as efforts (such as the April 18 jettisoning of the guns) designed to cover the crew‘s tracks.
B. The Anderson/Jenkins Calls
Bates argues that the procedures the police used to have Davenport identify the voices heard in recorded jail telephone calls, particularly Anderson‘s and Jenkins’ voices, were unnecessarily suggestive. See Stovall v. Denno, 388 U.S. 293, 302 (1967). Metropolitan Police Department (MPD) Officer Habeebullah testified that she had listened to the recordings with Davenport, and when he was able to identify voices he recorded the results on voice-identification sheets that she and Davenport signed.
Bates’ undue suggestivity argument stems from the detective‘s acknowledgment on cross-examination that the names at least of Anderson and Jenkins had been typed at the bottom of the voice identification sheets before they were handed to Davenport. Neither Bates, however, nor any other defendant made a suggestivity objection in the trial court, so our review on the point is for plain error. See
V. The Prosecutors’ Closing Arguments
Appellants assert multiple claims of impropriety by the two prosecutors in their initial closing and rebuttal arguments. None requires reversal, we hold, particularly in view of corrective instructions the judge gave. We briefly discuss three instances.14 The first, already addressed earlier, concerns the unsubstantiated “possibility” the prosecutor suggested that “somebody leaned on” Warren to exculpate the other defendants. The judge‘s immediate contrary instruction rectified that misstatement.
Even if “complained-of language [in closing is] impermissible, we nonetheless must affirm [the] appellant‘s conviction unless he can demonstrate substantial prejudice as a result of the prosecutor‘s error.” Harrison v. United States, 76 A.3d 826, 844 (D.C.2013) (citation and internal quotation marks omitted). Beyond the general instruction the jury received that the arguments of counsel are not evidence, the judge specifically acted to neutralize the prosecutor‘s suggestion—an oblique one in any case—that Anderson and the others had fled the police on April 18 because they had shot someone else that day or had been riding around with that in mind. “So long as ... unproduced evidence is ‘not touted to the jury as a crucial part of the prosecution‘s case,’ a limiting instruction from the trial court is usually a sufficient cure for any possible prejudice.” Bailey v. United States, 831 A.2d 973, 981-82 (D.C.2003) (quoting Frazier v. Cupp, 394 U.S. 731, 736 (1969)). As our discussion in part II shows, the evidence linking appellants—Anderson included—to the charged crimes motivated by retaliation was substantial, and the discrimination shown by the jury in rendering verdicts belies the argument that it was unable to follow the instructions and disregard an allusion to uncharged shootings.
Finally, we consider the prosecutor‘s argument in rebuttal—potentially the most troublesome one—dealing with exculpatory testimony given by Raymond Devese, who had witnessed the shooting of Gary English (and John Green) and, as we have pointed out, identified Bates as the driver of the white car. Devese testified on cross-examination by Anderson that when MPD Detective Anthony Greene showed him an array of photographs including one of Anderson, he told Greene, “He‘s not on here,” meaning “none of the people in the pictures were a person [he] saw in the white vehicle.” In his rebuttal argument, however, after repeating Devese‘s testimony to Detective Greene that “he‘s not here,” the prosecutor stated, “What was the question [that Greene asked]? What did Detective Greene tell you was the question? The question was who was the driver? Well, of course, it wasn‘t Darnell Anderson, it was James Bates.” Anderson objected to this argument, and Judge Leibovitz, after reviewing the transcript of Detective Greene‘s testimony, found that the prosecutor‘s “recitation was incorrect” and that Greene “did not testify at all [about] what question Mr. Devese was asked when shown the photo- graphs.”15
Government counsel stated in rebuttal closing argument that Raymond Devese when shown photographs, including one of Darnell Anderson, was asked the question whether he saw the driver of the car. There is no evidence in the record of this case that when shown photographs, Mr. Devese was asked if he saw the driver of the car. There is evidence in the case that Raymond Devese was asked whether he saw anyone in the car. There also was no testimony from Detective Greene regarding what question was asked. It is up to you to decide whether to accept this evidence.
Anderson, besides insisting to the judge, unsuccessfully, that only a mistrial could remedy the prosecutor‘s misstatement, asked her to strengthen the proposed instruction by adding to it that “[t]here is no testimony from Detective Greene that contradicts Devese‘s testimony.” The judge declined, and he challenges both aspects of her ruling here. Anderson is certainly right that Devese‘s testimony was important to his effort to create reasonable doubt about his involvement in the English shooting; and equally right that the misstatement in rebuttal denied him the ability to re-argue the testimony accurately to the jury. We nonetheless do not agree that no curative instruction could serve to neutralize the prosecutor‘s misstatement or that the instruction given failed that task. The prosecutor misstated the evidence on a single point—whether a specific question by Greene had elicited Devese‘s denial of seeing Anderson in the car—that the judge concluded could be remedied by setting the record straight. Our decisions commit this kind of judgment substantially to the discretion of the trial court, since it is “peculiarly within the knowledge of the trial judge whether the remarks of counsel during the trial tend to prejudice the cause of a party.” Irick v. United States, 565 A.2d 26, 32 (D.C.1989) (citation omitted). After presiding over a more than two-month trial enabling her to assess the issues likely to occupy the jury‘s deliberations, Judge Leibovitz reasonably determined that an instruction could forestall misunderstanding by the jury of the evidence on this issue of what Devese had been asked.
Nor did the instruction given imply, as Anderson suggests it did in the final sentence, that the jury “could reject Devese‘s testimony and accept the prosecutor‘s word about what Detective Greene had actually asked” (Brief for Anderson at 36). The jury was told that, contrary to the prosecutor‘s assertion that the detective had asked Devese only “whether he saw the driver,” there “was evidence that Raymond Devese was asked whether he saw anyone in the car,” “no evidence” that he “was asked if he saw the driver of the car,” and “no testimony from Detective Greene regarding what question was asked.” The final sentence (“It is up to you to decide whether to accept this evidence“), which essentially reminded the jury of what the general instructions had told it (“You are the sole judges of the facts.“) did not undo all the judge had just told the jury and invite it to “accept the prosecutor‘s word.” If the jury nonetheless did not credit Devese‘s testimony, or took it as insufficient to exculpate Anderson of the English murder, that was owing not to a misstatement of the evidence or an instruction that
VI. The “Criminal Street Gang” Instruction
Like the other appellants, Warren was convicted of “criminal street gang” charges corresponding to each of his other convictions, i.e., obstruction of justice and carrying a pistol without a license (CPWL). The government concedes that, with the failure on review of the former conviction, see note 1, supra, only Warren‘s street gang conviction predicated on the CPWL conviction is at issue. Although the street gang statute is new in this jurisdiction and has not been construed or applied before by this court, Warren, joined by other appellants who adopt his argument, contests only the trial court‘s refusal to give a special unanimity instruction on a main component of the statute.
As relevant here,
Our decisions do not demand a special unanimity instruction for these separate ways or means. An instruction requiring more than general unanimity in the verdict is necessary when a single charge “encompasses two separate incidents,” requiring the jury to “be unanimous as to which incident or incidents they find the defendant guilty [of].” Scarborough v. United States, 522 A.2d 869, 871 (D.C.1987) (en banc) (citation omitted). The instruction “should be given when dis- tinct
The separate ways by which
VII. Adult Sentencing of Warren
Warren, who was age 16 when indicted, argues that under the governing statute he could not be sentenced as an adult because, though charged with multiple violent crimes including murder, he was convicted only of obstructing justice, CPWL, and corresponding street gang offenses.17 We have not opined on this issue of interpretation before, but conclude that the plain language of
The Family Court of the Superior Court generally has exclusive jurisdiction over a “child” accused of committing a delinquent act that would be considered a crime if committed by an adult.
(3) The term “child” means an individual who is under 18 years of age, except that the term “child” does not include an individual who is sixteen years of age or older and—
(A) charged by the United States Attorney with (i) murder, first degree sexual abuse, burglary in the first de- gree,
robbery while armed, or assault with intent to commit any such offense, or (ii) an offense listed in clause (i) and any other offense properly joinable with such offense; (B) charged with an offense referred to in subparagraph (A)(i) and convicted by plea or verdict of a lesser included offense; or
(C) charged with a traffic offense.
Warren does not dispute that the crimes he was convicted of were “properly joinable” with the enumerated crimes in subsection (3)(A)(i). But he argues that once he was acquitted of all enumerated crimes and lesser offenses included in them, nothing remained for the conviction-crimes to be “join[ed]” with, and as free-standing convictions they could not support continued adult jurisdiction over him through sentencing.
By its terms, however,
By denying properly joinable offenses any independent role in whether adult jurisdiction can be maintained through sentencing, moreover, Warren‘s reading of the statute leads to a strange result. While convictions for, say, the lesser-included offenses of simple assault or unlawful entry, both misdemeanors, suffice to allow criminal punishment, conviction alone for major joined offenses such as aggravated assault, carjacking, conspiracy, or serious firearms offenses means loss of criminal jurisdiction and transfer of the defendant for juvenile treatment. That would be a tolerable and even necessary result if the statute reasonably read supported it, because
VIII. Merger of Convictions
Finally, Anderson contends that his multiple street gang convictions for the April 15 shootings of Gary English and John Green should be merged into one, and the case remanded for resentencing to that limited extent. The government concedes that some of these convictions merge, but not all. It argues, for example, that because Anderson‘s predicate convictions for the murder of English and the assault with a dangerous weapon (ADW) on Green do not merge, see Black v. United States, 755 A.2d 1005, 1009 (D.C.2000), the two corresponding street gang convictions do not merge. Anderson responds that in the analogous situation of multiple charges of possession of a firearm during a crime of violence (PFCV) predicated on crimes that themselves did not merge, we have required merger where the underlying crimes “were common to a single violent act and overlapped substantially.” Hagood, 93 A.3d at 226 (involving predicate crimes of burglary and ADW); see also Nixon v. United States, 730 A.2d 145, 153 (D.C.1999) (merger of PFCV convictions required where predicate convictions—four separate counts of assault with intent to commit murder—resulted from the defendant‘s shooting into a car containing several individuals).
We find Anderson‘s analogy persuasive. The shooting of English and Green undeniably involved “a single violent act” and facts that “overlapped substantially,” as Anderson and Jenkins fired multiple shots in rapid succession from the car. We conclude that, as with the unitary possession of a firearm in Hagood and Nixon, Anderson‘s street gang “participat[ion],”
The government agrees that the PFCV and corresponding street gang convictions of each defendant merge, so we need not discuss them.20 On remand, the parties should inform the trial court accordingly, so that it may conduct the necessary limited re-sentencing. In all other respects, the convictions of all of the appellants are
Affirmed.