Charles D. Jacobs v. United States (typographical changes made 11/10/04)
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 00-CF-1648
C HARLES D. J ACOBS, A PPELLANT
v.
U NITED S TATES, A PPELLEE
Appeal from the Superior Court of the
District of Columbia
(F-1599-99)
(Hon. Russell F. Canan, Trial Judge)
(Argued November 26, 2002
Decided November 10, 2004)
Matthew W. Greene, appointed by the court, for appellant.
Alex P. Shawe, Assistant United States Attorney, with whom Roscoe C. Howard, Jr.,
United States Attorney at the time the brief was filed, and John R. Fisher and Barbara J.
Valliere, Assistant United States Attorneys, were on the brief, for appellee.
Before T ERRY and F ARRELL, Associate Judges, and B ELSON, Senior Judge.
Opinion for the court P ER C URIAM.
Opinion of Associate Judge T ERRY, concurring in part and dissenting in part, at page
14.
P ER C URIAM: After a three-week trial, appellant was convicted of first-degree
premeditated murder while armed, two counts of first-degree felony murder while armed,
armed robbery, assault with a dangerous weapon, armed kidnapping, second-degree theft,
and two weapons offenses. On appeal he argues (1) that the trial court erred by instructing
the jury that a guilty verdict on the armed robbery charge could be supported in part by a
finding that force was used to “take or keep” the property, rather than simply to “take” the
2
property as stated in the Standard Jury Instructions, and (2) that the trial court erred by
admitting into evidence certain “prior consistent statements” of three government
witnesses. We reject both of these contentions and affirm, except that two of appellant's
convictions for murder (of the same victim) must be vacated. We therefore remand the
case for partial resentencing, as set forth in part IV of this opinion.
I.
On Saturday evening, January 2, 1999, Che Carpenter and Tanina Ashmon walked
out of a liquor store and headed for appellant’s apartment at 933 52nd Street, N.E.1 While
en route, they encountered appellant as he appeared from behind a building. Appellant told
Ms. Ashmon that someone had recently fired a gun at him and that he planned to “get
whoever it was that was shooting at him.” Appellant then asked Ashmon whether a rifle
belonging to Carpenter was still in her apartment, and Ashmon replied that it was.
Appellant knew that Carpenter had a rifle that he wanted to sell; indeed, Ashmon had
previously told appellant that if he was interested in buying it, “he could come to [her]
house and see it . . . .”
The group, which also included appellant’s cousin, proceeded to Ashmon’s
apartment at 927 52nd Street, N.E., to retrieve the rifle. Once inside, appellant again said
1
Ashmon and Carpenter were going to appellant’s apartment after hearing from a
friend in the liquor store that appellant had marijuana and alcohol there. Appellant knew
both Ashmon and Carpenter. Ashmon testified that appellant was “one of my closest
friends” whom she had known for “about six or seven years,” and that they had worked
together selling drugs.
3
that someone had shot at him. At that point he picked up the rifle from Ms. Ashmon’s lap
as she sat on the couch. As appellant was examining the rifle, Carpenter approached and
began to explain to him how the rifle worked. Suddenly appellant “cocked it back,”
pointed the rifle at Carpenter, and ordered him to “get outside.” When Ms. Ashmon asked
what he was doing, appellant replied that Carpenter, to whom he referred with an obscene
epithet, “almost got me killed.” 2 He also pointed the rifle at Ms. Ashmon, said that he was
“serious,” and threatened to kill Mr. Carpenter. He then forced Carpenter at gunpoint to
back out of the apartment and down a staircase that led outside, despite Carpenter’s
“pleading for his life” and his insistence that he “[didn’t] mean to do nothing to
[appellant].”
Ms. Ashmon, who remained in the apartment, testified that after Carpenter and
appellant had gone outside, she heard “a lot of gunshots.” She then went outside and found
Carpenter’s body lying in a pool of blood.3 After seeing the body, Ashmon went quickly to
a nearby convenience store to find a police officer. Ms. Ashmon initially told the police
only that there was a dead body outside her apartment building, giving a false account of
the surrounding events. However, approximately three days later, she contacted the police
again and informed them of the actual circumstances of the murder.
2
Two days earlier, on December 31, 1998, Ashmon and Carpenter had engaged in
two armed robberies. The victim in one of these robberies was a drug-dealing associate of
appellant. During this robbery Carpenter’s mask fell off, thus exposing his identity.
Appellant seemed to believe that his being shot at was related in some way to this robbery
committed by Ashmon and Carpenter.
3
This testimony was corroborated in part by David White, one of Ashmon’s neighbors.
Mr. White testified that while he was outside loading laundry into his truck, he heard
someone directing another person to go around to the back of the building and then heard a
series of gunshots.
4
II.
Appellant contends that the trial court erred by allowing the “near constant
admission” of prior consistent statements by three government witnesses.4 He claims that
“the prosecutor engaged in a pattern of examination that improperly bootstrapped the
witnesses’ prior statements in order to improperly bolster their credibility,” and that the
court abused its discretion by allowing such questioning. He concludes that this abuse
requires reversal because of the sheer number of times the government was allowed to ask
these questions, the lack of a curative instruction, and the “improper bolstering” which
occurred at critical junctures of the government’s case.
The government maintains in response that appellant’s claim is based on a “deeply
flawed interpretation of what constitutes a ‘prior consistent statement.’”
As the
government points out, the prosecutor’s questions referred only to earlier testimony elicited
at trial, not to prior statements made out of court. Therefore, instead of eliciting prior
consistent statements, the prosecutor was merely directing each witness “to his or her
earlier testimony from the trial so that he or she could provide a focused response in the
manner most helpful to the jury.” Accordingly, the government contends that appellant’s
claim is “an oblique attack upon the form and content of the government’s direct
examination questions at trial” rather than a challenge to the admission of prior consistent
statements. The government also observes that appellant’s brief “merely recounts the
questions posed by the government at trial” rather than the answers given by the witnesses
4
Appellant challenges a total of thirty-eight questions that incorporated so-called
“prior consistent statements” made by three government witnesses: Tanina Ashmon, David
White, and Amahad Sharif.
5
(emphasis in original). “As such,” the government maintains, “there is not even evidence
for this court to evaluate on appeal.” We agree with the government and reject appellant’s
argument.
“The rule barring the introduction of prior consistent statements is designed to
prevent the jury from learning that a witness has given the same account out of court that he
or she gave on the stand.” Sherer v. United States, 470 A.2d 732, 740 (D.C. 1983)
(emphasis added). The rationale behind this rule is twofold. First, “a witness’ having told
the same story on more than one occasion has no bearing on the truth of the statement.”
Id.; accord, Warren v. United States, 436 A.2d 821, 836 (D.C. 1981) (“mere repetition does
not imply veracity” (citation omitted)). Second, “the prejudice from wrongly admitted prior
consistent statements is that the witness’ credibility is unfairly bolstered.” Daye v. United
States, 733 A.2d 321, 327 (D.C. 1999). However, prior consistent statements may still be
admitted to rehabilitate a witness in at least two “exceptional situations,” namely, “(1)
where the witness has been impeached with a portion of a statement and the rest of the
statement contains relevant information that could be used to meet the force of the
impeachment, and (2) where there is a charge of recent fabrication.” Reed v. United States,
452 A.2d 1173, 1180 (D.C. 1982) (citations omitted).
Turning now to appellant’s claim of error, we need not (indeed, we cannot) decide
whether the trial court properly admitted prior consistent statements, under the case law
summarized above, because the statements on which appellant’s argument is based are not
properly characterized as prior consistent statements — which are, as Sherer and other
cases tell us, statements made out of court, not in court. At no time did the prosecutor ask
6
any witness about a prior statement that was made out of court, and then seek to elicit a
similar response to demonstrate that the witness was still saying the same thing. Rather, in
all of the many instances of which appellant complains, the prosecutor began each question
by drawing the witness’ attention to his or her previous trial testimony as a way of alerting
the witness to the subject matter of the question. Thus the government is correct when it
says that appellant’s claim of error is more properly characterized as a challenge to the form
of the questions, rather than to the admission of prior consistent statements. Regulating the
form of the questioning is a matter within the sound discretion of the trial court. See, e.g.,
Gardner v. United States, 698 A.2d 990, 998 (D.C. 1997); Sherrod v. United States, 478
A.2d 644, 653 (D.C. 1984). On the record before us, we find no abuse of that discretion.
Thus a claim of such abuse, if made, would surely fail.
III.
Appellant contends that the trial court erred in instructing the jury that the crime of
robbery would be established if, among other things, appellant “took or kept [Carpenter’s
rifle] by using force or violence” (emphasis added).5
5
Appellant points out, and the
In the District of Columbia, robbery [D.C. Code § 222801 (2001)] retains its common law elements. Thus the
government must prove larceny and assault. To support a
robbery conviction, the government must prove that there was
“(1) a felonious taking, (2) accompanied by an asportation [or
carrying away], of (3) personal property of value, (4) from the
person of another or in his presence, (5) against his will, (6) by
violence or by putting him in fear, (7) [and] animo furandi [the
intention to steal].”
Lattimore v. United States, 684 A.2d 357, 359 (D.C. 1996) (quoting United States v.
McGill, 159 U.S. App. D.C. 337, 338, 487 F.2d 1208, 1209 (1973)) (additional citations
(continued...)
7
government acknowledges, that there was no evidence that he used or threatened force
when he initially took the rifle from Ms. Ashmon’s lap; at that point both Ashmon and
Carpenter, standing near her, impliedly consented to appellant’s custody of the gun as he
inspected it — with Carpenter’s help — seemingly with the intent to buy it.6 Thereafter,
appellant’s argument continues, neither Carpenter nor Ashmon “made any effort or
expressed any desire to recover possession of the rifle” (Supp. Br. for App. at 7). The
result, he asserts, is that by permitting the jury to equate “take” with “keep” the court
modified an element of the offense and “wrongfully avoided the clear implication that the
government had not met its burden of proof” that he took the gun by actual or threatened
use of force (Br. for App. at 23).
We reject this argument. Although appellant initially took possession of the gun
pretending — so the jury could find — to examine it with a view to buying it, almost
immediately he cocked the rifle, pointed it at Carpenter, and ordered him outside while
threatening to kill him.7 In these circumstances, where the threatened violence occurred
directly on the heels of a plainly conditional transfer of possession (conditioned on return or
purchase of the gun), it was perfectly logical for the court to instruct the jury that the
threatened use of force by appellant did not have to coincide with the initial transfer so long
5
(...continued)
omitted).
6
As noted earlier, appellant knew Carpenter had a rifle to sell, and Ashmon had invited
him to her house to see it if he was interested in buying it.
7
Although appellant’s intent all along may have been to kill or injure Carpenter, he
makes no argument that the jury could not also find an intent to steal the rifle, as required
for robbery.
8
as he used force to prevent Carpenter from regaining possession of the rifle.8 Our decisions
and the common law are consistent with that instruction.
Revealing first is that the standard jury instruction in this jurisdiction explains that
the use of force or violence “so as to overcome or prevent the [victim’s] resistance satisfies
the requirement of force or violence.” C RIMINAL J URY INSTRUCTIONS FOR THE D ISTRICT OF
C OLUMBIA, No. 4.46 (4 th ed. 1993) (emphasis added).9 This implies that the assailant may
have gained partial or incomplete possession of the property before “resistance” causes him
to use force to “overcome” the owner’s efforts to take it back. And, contrary to appellant’s
suggestion, it is beside the point that Carpenter, with the rifle pointed at him and threatened
with death, did not risk a bullet by offering actual resistance to the taking (whether he did
so outside the apartment we do not know); the robbery was complete when appellant
prevented any such resistance by intimidating the victim with the gun. Furthermore, in
keeping with the common law, robbery in this jurisdiction requires the use of force or
violence in a “felonious taking . . . accompanied by an asportation [or carrying away].”
Lattimore, supra note 5, 684 A.2d at 359 (emphasis added). Although “the slightest
moving of an object from its original location may constitute an asportation,” Simmons v.
United States, 554 A.2d 1167, 1171 n.9 (D.C. 1989), the combined requirement of taking
8
Whenever we say “force was used” or the “use of force” here, we mean not just the
actual use of force or violence but threatened force capable of putting a person in
reasonable fear of danger. See D.C. Code § 22-2801 (“by force or violence . . . or by
putting in fear”). The jury was instructed accordingly.
9
See, e.g., Turner v. United States, 57 App. D.C. 39, 40, 16 F.2d 535, 536 (1926)
(“under the common law, . . . the force used [must be] sufficient to overcome or prevent
any resistance, or to put the owner in fear”). By statute, of course, the District also defines
“force or violence” as “stealthy seizure or snatching,” § 22-2801, hence requiring only that
force “necessary to lift a wallet from a pocket.” United States v. Mathis, 295 U.S. App.
D.C. 296, 306, 963 F.2d 399, 409 (1992).
9
and carrying away demonstrates that force or violence used during a sequence of actions
that includes but is not limited to the initial seizure is sufficient to make out the crime of
robbery.
At the very least, we hold, force used by the defendant to obtain complete possession
or control of the property satisfies the requirement for taking by force. In Lattimore, supra
note 5, for example, we held that the requirements of a taking, asportation, and use of force
or violence were met where the defendants’ “complete and exclusive control [was]
demonstrated as they physically held the items in their hands while restraining and
threatening to shoot [the victim].”
Id. at 360 (emphasis added). Appellant likewise
exercised such “complete and exclusive control” of the rifle once he aimed it at Carpenter
and threatened to kill him, but not before. Until then, he had held the rifle with the owner’s
consent as, in effect, a custodian for the limited purpose of examining it with the intent (or
so Carpenter likely thought) to buy it.
A leading commentary, R OLLIN M. P ERKINS,
C RIMINAL L AW (3d ed. 1982), underscores this distinction as important to the common law
understanding of robbery.
Blackstone, Perkins points out, emphasized the robbery
requirement that the larceny be accompanied by violence or intimidation by stating: “‘for if
one privately steals sixpence from the person of another, and afterwards keeps it by putting
him in fear, this is no robbery, for the fear is subsequent . . . .’” Id. at 348 (quoting 4 Bl.
Comm. * 242). But, Perkins explains, “[o]ccasionally this has been misapplied”:
For example, during a chance meeting D suggested he might be
interested in buying the gun X was carrying and asked
permission to examine it, which was granted. Finding the gun
loaded D then pointed it at X and told him to run for his life.
As X backed away, D ran off with the weapon. A conviction
of robbery was reversed on the theory that the resort to
10
intimidation was after the acquisition of the gun. [citation
omitted). This completely overlooks the distinction between
possession and custody. When D received the gun to examine
momentarily in the presence of X, D had custody only. Had he
run off with the gun without violence or intimidation he would
have been guilty of larceny because this would have been a
trespassory taking and carrying away with all the elements of
that offense. And since he actually did this under a threat to
kill he clearly committed robbery . . . .
Id. at 348-49 (emphasis added). Although appellant did not “r[u]n off with the weapon” or
order Carpenter to “run for his life,” the situations are otherwise identical: he initially
received what amounted to permission to examine the gun, then pointed it at Carpenter,
threatened to kill him, and marched him out of the apartment. In thereby using force to
establish his “complete and exclusive control” of the weapon, Lattimore, supra note 5, “he
clearly committed robbery.” P ERKINS, supra; see also 4 C HARLES E. T ORCIA, W HARTON’S
C RIMINAL L AW § 463, at 39-40 (15 th ed. 1996) (“A thief who finds it necessary to use force
or threatened force after a taking of property in order to retain possession may in legal
contemplation be viewed as one who never had the requisite dominion and control of the
property to qualify as a ‘possessor.’ Hence, it may be reasoned, the thief has not ‘taken’
possession of the property until his use of force or threatened force has effectively cut off
any immediate resistance to his ‘possession.’”).10
10
This court in other instances has recognized that robbery may be distinguished from
larceny because the defendant used force to gain exclusive physical control over the
victim’s property. See, e.g., Rouse v. United States, 402 A.2d 1218, 1220 (D.C. 1979)
(although defendant used gun to frighten property owner into flight before property was
taken, robbery instruction was proper because defendant’s use of force prevented owner
from exercising control over the property).
11
Other courts have reached a similar conclusion. Most pertinent, perhaps, is Ball v.
State, 699 A.2d 1170 (Md. 1997), where the Court of Appeals of Maryland unanimously
adopted the view that
[t]he use of force during the course of a larceny in order to take
the property away from the custodian supplies the element of
force necessary to sustain a robbery conviction. The mere fact
that some asportation has occurred before the use of force does
not mean that the perpetrator is thereafter not guilty of the
offense of robbery. Rather, the totality of the circumstances
that surround the taking must be considered. If, as in the
instant case,[11] the use of force enables the accused to retain
possession of the property in the face of immediate resistance
from the victim, then the taking is properly considered a
robbery.
Id. at 1185; see also In re A.W.K., 778 A.2d 314, 319 (D.C. 2001) (noting, as this court
often has, that “the jurisprudence of [Maryland]” is “the source of the common law of the
District of Columbia”).
Factually somewhat closer to this case is People v. Jones, 990 P.2d 1098 (Colo.
1999). There the defendant had agreed to sell a gun to the victim, but decided that he
would retake possession of the gun from the victim by “using some excuse,” and then keep
the gun and the money. Id. at 1101. The defendant handed the gun to the victim and
received the money, but then asked the victim to return it so that he could demonstrate how
to load it.
The victim complied, and the defendant chambered a round but then, still
holding the gun, pointed it at the victim and said, “You better not say anything or this[ will]
11
In Ball, the defendant’s confession established that the murder victim had surprised
him as he was leaving her house (which he had burglarized) with items of her property in
his possession. She had “presumably sought to prevent [a]ppellant from removing the
items,” since she was later found shot to death in the home. Id. at 1185.
12
come back on you.” Id. at 1102. The gun then discharged, fatally wounding the victim. Id.
On appeal, the defendant argued that he took the gun by trickery rather than force, that the
taking was complete once he had possession of both the gun and the money, and that any
force, threats, or intimidation occurred after the taking was complete. The Colorado Court
of Appeals rejected this argument, stating that “the gravamen of robbery is the application
of physical force or intimidation against the victim at any time during the course of the
transaction culminating in the taking of property from the victim’s person or presence.” Id.
at 1106. Even though Colorado’s definition of robbery — like the District of Columbia’s
— does not explicitly mention the use of force to retain possession or escape, the court
concluded that the taking is not necessarily over once the defendant has gained initial
physical possession of the property. See also People v. Webster, 814 P.2d 1273, 1289 (Cal.
1991) (“The act of ‘taking’ begins when the separation of the victim from his or her
property occurs, and it continues through the forcible consummation.”); People v. Flynn, 91
Cal. Rptr. 2d 902, 906 (Cal. Ct. App. 2000) (“[T]he requisite force or fear [for robbery]
need not occur at the time of the initial taking. The use of force or fear to escape or
otherwise retain even temporary possession of the property constitutes robbery.”); State v.
Leevans, 424 P.2d 1016, 1019 (Wa. 1967) (robbery instruction that included explanation
that “[s]uch force or fear must be used to obtain or retain possession of the property taken”
was proper) (internal quotation omitted).
Here, to summarize, no sooner had Carpenter impliedly consented to appellant’s
momentary possession of the rifle for examination, than appellant turned the rifle on him
with the threat of deadly force and ordered him out of the apartment at gunpoint. This
threat of violence to forestall any attempt by Carpenter to regain possession of the weapon
13
was sufficient to establish the force or violence element of robbery. Any other conclusion
would create a perverse incentive to theft backed up by a readiness to use force where
necessary.12
IV.
Appellant was convicted of premeditated murder and two counts of felony murder
based on the same killing. “When there is only one killing, the defendant may not be
convicted of more than one murder. . . . [Appellant] cannot remain convicted of both firstdegree premeditated murder and first-degree felony murder of the same victim.” Thacker
v. United States, 599 A.2d 52, 63 (D.C. 1991) (citations omitted). We leave it to the trial
court on remand to decide which two of the three murder convictions should be vacated.
See id. at 64 (“Ordinarily we . . . leave it to the trial court to decide, in its discretion, which
. . . murder convictions to vacate” (citations omitted)). However, if the premeditated
murder conviction is vacated and one of the two felony murder convictions is allowed to
stand, then the predicate felony conviction must also be vacated because it is included in
the felony murder. See Adams v. United States, 502 A.2d 1011, 1026 & n.22 (D.C. 1986).
Except for the partial remand we order, the judgment of the Superior Court is
affirmed.
So ordered.
12
It follows from this discussion that we reject appellant’s arguments that the evidence
was insufficient to support his robbery (and, by implication, felony murder robbery)
convictions, and that the challenged instruction by the trial court created a “fatal variance”
between the robbery as charged and as submitted to the jury.
14
T ERRY, Associate Judge, concurring in part and dissenting in part: I join in parts I
and II of the Per Curiam opinion, and I join as well in part IV as far as it goes; however, I
respectfully dissent from part III. I agree with appellant that the trial court erred when it
modified the standard instruction on robbery, which says that a defendant may be convicted
of robbery if the jury finds that he used force to “take” the property of another, by telling
the jury instead that it must find that force was used to “take or keep” the property. I would
therefore reverse appellant’s convictions of armed robbery (count 1 of the indictment) and
felony murder based on armed robbery (count 4). Since the instructional error affects only
these two counts, I would affirm all the other convictions on the merits, subject only to a
remand for partial resentencing as outlined in part IV of the Per Curiam opinion.
The underlying legal issue appears to be one of first impression in the District of
Columbia, although it has arisen in the courts of several other jurisdictions.
After
reviewing the relevant decisions of those courts, I would elect to follow what I regard as
the better-reasoned rule and accordingly would hold, in light of the facts of this case, that
the modification of the standard instruction was reversible error.
The trial court initially read to the jury the standard instruction on robbery,
C RIMINAL J URY INSTRUCTIONS FOR THE D ISTRICT OF C OLUMBIA, No. 4.46 (4th ed. 1993).1
1
Standard Instruction No. 4.46 states in part that to establish the elements of robbery,
“the government must prove beyond a reasonable doubt . . . that the defendant used force or
violence to take the property . . . [and] carried the property away . . . .” It states further:
To take property means to get possession of it, so as to
be able to exercise control over it. The taking must be against
(continued...)
15
However, at the prosecutor’s request, the court agreed to re-instruct the jury with a
modified version of the standard instruction. Defense counsel made a timely objection, but
the court overruled it, saying, “It just seems common-sensical to me. . . . [I]f you say, ‘Let
me take a look at your gun,’ and then turn around in the next second and steal the weapon,
pointing the gun and threatening . . . the taking and keeping it was against the will of the
possessor of the property. Although, I guess, hypothetically, it could be a theft and ADW
[assault with a dangerous weapon], in my view it could also be an armed robbery.” The
court then gave a modified instruction which said in relevant part:
To take property means to get possession of it so as to
be able to exercise control over it. The taking or keeping must
be against the will of the complainant. . . .
To establish a robbery, it is not sufficient that the
defendant took or kept the property. He must have taken it or
kept it by using force or violence.
[Emphasis added.]2
1
(...continued)
the will of the complainant . . . .
To establish a robbery, it is not sufficient that the
defendant simply took the property; [he] must have taken it by
using force or violence.
[Emphasis added.]
2
The evidence showed that the rifle (the property that appellant was charged with
stealing) was voluntarily yielded to appellant by Ms. Ashmon, and that the shooting of Mr.
Carpenter with that very same rifle took place a short but appreciable time after appellant
acquired possession of the rifle, and at a location (outside the apartment) different from the
place where the rifle was taken (inside the apartment).
It should be noted that appellant was charged with robbing Carpenter, and not
Ashmon, from whom appellant initially took possession of the rifle by picking it up from
(continued...)
16
Appellant argues that the trial court committed reversible error by instructing the
jury in this way.
According to appellant, the amended instruction was an erroneous
statement of the law that “impermissibly restricted the jury’s consideration of relevant
evidence, and wrongfully avoided the clear implication that the government had not [met]
its burden of proof on this particular charge.” The government responds that the jury
instruction did not offer a novel definition of robbery, but one that was consistent with the
elements of that offense. To support this argument, the government cites cases from
several courts that have “declined to impose strict temporal requirements concerning the
exercise of force or violence in robbery cases.” The government also argues, in a footnote
in its brief, that because this court has given a broad meaning to the phrase “immediate
actual possession” in the robbery statute, see, e.g., Leak v. United States, 757 A.2d 739, 743
(D.C. 2000), cert. denied, 534 U.S. 1054 (2001), this court should also adopt a broad
construction of “take.” 3
2
(...continued)
her lap. The only charge involving Ashmon was assault with a dangerous weapon, as to
which appellant makes no claim of error other than the one which we have addressed (and
rejected) in part II of the Per Curiam opinion.
3
Appellant does not argue on appeal that there was insufficient evidence that the rifle
was in Carpenter’s immediate actual possession. See, e.g., Leak, 757 A.2d at 743 (“A
bicycle lying two feet away from the owner is, undoubtedly, within the victim’s immediate
actual possession . . . [when] the owner is aware of the attempted taking in a setting of
force and violence”); Spencer v. United States, 73 App. D.C. 98, 99, 116 F.2d 801, 802
(1940) (removal of money from the pocket of trousers lying on a chair while the owner of
the trousers was in bed with a prostitute a few feet away was a taking from the owner’s
immediate actual possession).
17
I
Our robbery statute, D.C. Code § 22-2901 (1996),4 states in relevant part: “Whoever
by force or violence . . . shall take from the person or immediate actual possession of
another anything of value, is guilty of robbery . . . .” The essential element of this type of
robbery is the use of force, which is the primary distinction between robbery and larceny
(or theft, as it is now known in this jurisdiction). See 67 A M. J UR. 2 D Robbery § 3, at 50
(2003). There are, however, at least two views as to when this force must be applied to turn
a larceny into a robbery. One such view is that force must precede or be contemporaneous
with the taking, in the sense that the force must be used initially to gain physical possession
of the property. Another view treats the occurrence as a continuing transaction, so that the
use of force to retain the property or to escape may be sufficient to make the crime a
robbery, even if the initial taking was not by force.
See Kristine Cordier Karnezis,
Annotation, Use of Force or Intimidation in Retaining Property or in Attempting to Escape,
Rather Than in Taking Property, As Element of Robbery, 93 A.L.R.3 D 643, 645 (1979).
Courts are not in agreement on whether the use of force in retaining possession of property
previously taken or in attempting to escape, rather than in the physical act of taking the
property, supplies the element of force essential to make the offense a robbery. See 67 A M.
J UR. 2 D Robbery § 27. “Some courts . . . have refused to uphold robbery convictions where
force was applied subsequent to the physical act of ‘taking,’ ” while “[o]ther courts, in
contrast, have interpreted robbery as a continuous transaction that is not complete until the
4
Recodified as D.C. Code § 22-2801 (2001).
18
perpetrator reaches a place of temporary safety.” Ball v. State, 347 Md. 156, 185, 699 A.2d
1170, 1183-1184 (1997) (citations omitted), cert. denied, 522 U.S. 1082 (1998).
The states that subscribe to the latter view can be further divided into two
sub-categories. First, there are those with robbery statutes that expressly include the use of
force to retain the property or escape with it. Second, there are those with statutes that do
not explicitly include the use of force to retain the property or to escape, but in those states
the courts have adopted a temporal view of the “taking” requirement that is so broad that
force used in such a manner is still considered to have occurred during the taking. Because
this sort of force is not expressly contemplated in our statute, the correctness of the trial
court’s “take or keep” jury instruction hinges on whether this court adheres to the broad
temporal view of the “taking” or the more narrow one which I shall discuss momentarily.5
The government urges us to adopt the position taken by the Maryland Court of
Appeals in Ball v. State, supra. Prior to Ball, the Maryland Court of Special Appeals
required that the force precede or be concurrent with the taking. See, e.g., Cooper v. State,
9 Md. App. 478, 480, 265 A.2d 569, 571 (1970) (“there must be evidence of actual
violence preceding or accompanying the taking”); Giles v. State, 8 Md. App. 721, 723, 261
5
This court has not yet decided which of these two approaches is correct. Appellant
cites Lattimore v. United States, 684 A.2d 357 (D.C. 1996), in which we held that the crime
of robbery is comprised of larceny and assault, and that the taking and asportation
requirements of larceny are satisfied once the defendant has acquired “complete and
exclusive control over the stolen items.” Id. at 360 (citing Groomes v. United States, 155
A.2d 73, 75-76 (D.C. 1959)). We then said that “[the defendants’] complete and exclusive
control [was] demonstrated as they physically held the items in their hands while
restraining and threatening to shoot [the victim].” Id. Although Lattimore makes clear what
is required for the taking element to be satisfied, it does not necessarily establish when the
taking is complete. Lattimore is therefore of no assistance here.
19
A.2d 806, 808 (1970) (“To constitute robbery, the actual or constructive violence must
precede or accompany the taking”). The Court of Special Appeals later abandoned this
view in favor of the broader view that subsequent force in the face of resistance would
constitute robbery. See Burko v. State, 19 Md. App. 645, 657-658, 313 A.2d 864, 871
(1974) (“when one commits a larceny and then displays a weapon so as to overcome the
resistance of the witness, the crime is then elevated to robbery” (citations omitted)).
This issue was resolved in Ball. In Maryland, robbery is defined not by statute but
by case law as “the felonious taking and carrying away of the personal property of another,
from his person or in his presence, by violence or putting in fear, or, more succinctly, as
larceny from the person, accompanied by violence or putting in fear.” Ball, 347 Md. at
184, 699 A.2d at 1183 (quoting West v. State, 312 Md. 197, 202, 539 A.2d 231, 233
(1988)). With this definition in mind, the court concluded as follows with respect to the
timing of the force:
[T]he better view is that the use of force during the course of a
larceny in order to take the property away from the custodian
supplies the element of force necessary to sustain a robbery
conviction. . . . If, as in the instant case, the use of force
enables the accused to retain possession of the property in the
face of immediate resistance from the victim, then the taking is
properly considered a robbery.
Ball, 347 Md. at 188, 699 A.2d at 1185 (emphasis added). This holding makes clear that
the Maryland courts adhere to the broader view of “taking,” and thus that in Maryland a
20
taking is not necessarily complete once the defendant has gained physical possession of the
stolen property.6
Michigan, on the other hand, provides an example of a jurisdiction that defines
“taking” narrowly. Like the case law in Maryland and the statute in Colorado, supra note
6, Michigan’s robbery statute formerly stated, in relevant part: “Any person who shall, by
force or violence, or by assault or putting in fear, feloniously rob, steal and take from the
person of another . . . any money or property” is guilty of robbery. M ICH. C OMP. L AWS §
750.530 (2003). 7 In People v. Randolph, 466 Mich. 532, 648 N.W.2d 164 (2002), the
Michigan Supreme Court overturned previous decisions 8 that followed the “transactional
approach” in which a completed larceny may be elevated to robbery if the defendant uses
force after the taking and before reaching temporary safety, and “reassert[ed] that the force
. . . must occur before or contemporaneously with the felonious taking.” Id. at 551, 648
N.W.2d at 174. In Randolph the defendant stole merchandise from a department store and
was seized by a security officer as he was leaving. The defendant broke free from the
guard’s hold and swung at the guard in his effort to escape. Because of the assault on the
6
Colorado case law also adheres to the broad view of taking. See People v. Jones,
990 P.2d 1098 (Colo. 1999), discussed in the Per Curiam opinion, ante at 13-14.
Essentially as in Maryland, robbery is defined in Colorado as follows: “A person who
knowingly takes anything of value from the person or presence of another by the use of
force, threats, or intimidation commits robbery.” C OLO. R EV. S TAT. § 18-4-301 (2002).
7
The Michigan statute was completely rewritten in 2004 and no longer contains this
language. See M ICH. C OMP. L AWS § 750.530 (2004).
8
E.g., People v. LeFlore, 96 Mich. App. 557, 293 N.W.2d 628 (1980).
21
guard, which occurred after the defendant gained possession and control of the property,
the defendant was convicted of robbery rather than larceny.
After tracing the evolution of the transactional approach in Michigan case law, the
court embarked on an exhaustive review of the common law of robbery to demonstrate how
it was not in accord with the transactional approach used by the Michigan Court of
Appeals. The court began by quoting Blackstone, who defined robbery as “the felonious
and forcible taking, from the person of another, of goods or money to any value by violence
or putting him in fear,” and declared that “[t]he taking must be by force, or a previous
putting in fear . . . .” Id. at 537-538, 645 N.W.2d at 167 (quoting 4 B LACKSTONE,
C OMMENTARIES at *241-242) (emphasis added by the Michigan court). As the court
pointed out, a number of other commentators also agree with Blackstone’s view that, under
the common law, the use of force must precede or be contemporaneous with the taking.
For example, Professor Torcia has stated:
At common law, and in some states, force or threatened force
. . . amounts to robbery only if it is used to “take” property
from the possession of another. Force or threatened force used
thereafter, in order to retain possession of the property taken or
to facilitate escape, does not qualify. At best, in such a case,
the separate offenses of larceny and assault or larceny and
battery are committed.
4 C HARLES E. T ORCIA, W HARTON’S C RIMINAL L AW § 463, at 33-36 (15th ed. 1996)
(footnotes omitted).9 Consequently, the Michigan Supreme Court held that, at common
law, a robbery required that the force be used before or contemporaneously with the
9
See also 77 C.J.S. Robbery § 13, at 605 (1994) (“[t]he test is whether or not the
taking of the property has been completed at the time the force or threat is used”).
22
larcenous taking, and therefore “the ‘transactional approach’ . . . is without pedigree in our
law and must be abandoned.” Randolph, 466 Mich. at 546, 648 N.W.2d at 172. Thus,
unlike the Maryland court in Ball, the Michigan Supreme Court has adopted the narrow
view of taking, which regards the taking as complete once physical possession is gained.10
II
In the case before us, it must be remembered that the exercise of force by appellant
— namely, the shooting of Mr. Carpenter — did not occur until after appellant already had
physical possession of the rifle.11 Given the divergence of the case law, I would conclude,
with all due respect to the Maryland and Colorado courts, that the narrow view is the more
appropriate one, and more consistent with the common law.12 I would hold accordingly
10
In Missouri the robbery statute defines “forcibly stealing” as the use of force for the
purpose of “[p]reventing or overcoming resistance to the taking of the property or to the
retention thereof immediately after the taking.” M O. R EV. S TAT. § 569.010 (1) (1994). The
Missouri Court of Appeals has recognized, however, that before the enactment of this
statute, “[t]he rule in Missouri has traditionally been that the force . . . necessary to prove
robbery must precede or be contemporaneous with the taking of the property,” but the
statutory language “extended the time at which the use of force . . . may occur [so that it]
can now occur after the taking . . . .” State v. Kelly, 43 S.W.3d 343, 349 (Mo. App. 2001)
(citations omitted; emphasis added).
11
It is of course well established in this jurisdiction that a dead person can be the
victim of a robbery under our robbery statute. See, e.g., Carey v. United States, 111 U.S.
App. D.C. 300, 304-305, 296 F.2d 422, 426-427 (1961). However, the cases that involve
robbing a dead person are not applicable here, regardless of whether the intent to steal was
formed after the victim was killed, because in those cases force was used to take property
after the victim was either dead or unconscious, See, e.g., Ulmer v. United States, 649 A.2d
295, 298 (D.C. 1994); Smothers v. United States, 403 A.2d 306, 313 n.6 (D.C. 1979). Here
no force was used against Mr. Carpenter after he was shot.
12
I note that Ball and the cases it relies on, such as People v. Estes, 147 Cal. App. 3d
(continued...)
23
that the trial court’s jury instruction was erroneous insofar as the word “take” in the robbery
statute does not have such a broad meaning that it can include force used to effectuate the
keeping of property. In the District of Columbia robbery retains its common law meaning,
see United States v. Dixon, 152 U.S. App. D.C. 200, 203, 469 F.2d 940, 943 (1972), and the
common law definition has only been expanded by statute to include stealthy takings. See
Irby v. United States, 250 F. Supp. 983, 988 (D.D.C. 1965), aff’d, 129 U.S. App. D.C. 17,
390 F.2d 432 (1967) (en banc). While there are, to be sure, differing views as to the
temporal requirements of a “taking” at common law, see, e.g., Randolph, 466 Mich. at 554,
648 N.W.2d at 176 (Markman, J., dissenting),13 I believe that the rule adopted by the
majority in Randolph is the more persuasive and authoritative one.
12
(...continued)
23, 28, 194 Cal. Rptr. 909, 912 (1983) (defendant used force to prevent a security guard
from retaking property stolen from a department store), and People v. Tinsley, 176 Mich.
App. 119, 120, 439 N.W.2d 313, 314 (1989) (victim and son gave chase, but abandoned
their pursuit after the defendant drew a gun), are factually distinguishable from this case in
one significant respect. In those cases force was used to overcome resistance by the victim
in an attempt to reclaim the property, whereas in the case at bar there was no attempt on the
part of anyone to reclaim the rifle from appellant once he had it in his hands.. Thus, even if
I were inclined to follow the holding in Ball, it would not be dispositive on the facts of this
case.
13
See also 4 C HARLES E. T ORCIA, W HARTON’S C RIMINAL L AW § 463, at 39-40:
Moreover, conceptually, the statutory extension is not
necessarily inconsistent with the common-law theory of
robbery[.] A thief who finds it necessary to use force or
threatened force after a taking of property in order to retain
possession may in legal contemplation be viewed as one who
never had the requisite dominion and control of the property to
qualify as a “possessor.” Hence, it may be reasoned, the thief
has not “taken” possession of the property until his use of force
or threatened force has effectively cut off any immediate
resistance to his “possession.”
24
Moreover, well-settled principles of statutory interpretation favor the narrow view
that the taking is complete once physical possession is gained. “It is a maxim of statutory
construction that the language of a statute should be interpreted in accordance with its
ordinary and usual sense, and with the meaning commonly attributed to it.” United States
v. Thompson, 347 A.2d 581, 583 (D.C. 1975) (citations and internal quotation marks
omitted). A reliable method of discovering a word’s ordinary meaning is to look it up in
the dictionary. In W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY at 2329 (1976),
“take” is defined as “to get into . . . one’s possession, power, or control.” This definition in
no way suggests that a “taking” still continues after the item is in one’s possession and
control. On the contrary, the phrase “to get into” plainly implies that it is the initial gaining
of possession that falls within the definition, not any subsequent retaining of possession.
Reading a broad view of “taking” into our statute would ignore the fact that had the
legislature intended for the statute to have such a meaning, it could simply have worded the
statute differently. For example, Connecticut loosens the temporal requirement by stating
that force need only be used “in the course of committing a larceny.” C ONN. G EN. S TAT. §
53a-133 (2001). Likewise, New York incorporates the phrase “in the course of committing
a larceny” in its robbery statute. N.Y. P ENAL L AW § 160 (Consol. 2002). While not
conclusive, the absence of this or similar language from the District of Columbia statute at
least suggests a legislative intent to adopt the more narrow definition of “taking.”
The government points out nevertheless that in this jurisdiction the element of
“force” in a robbery prosecution has long been held to encompass even the most minimal
application of physical effort. Thus, for example, it was held long ago (1940) in the
25
Spencer case, supra note 3, that “[t]he force used to remove the money from the pocket is
sufficient to satisfy the statutory requirement of ‘force or violence.’ ” 73 App. D.C. at 99,
116 F.2d at 802 (citing Turner v. United States, 57 App. D.C. 39, 40, 16 F.2d 535, 536
(1926) (“the requirement for force is satisfied within the sense of the statute by an actual
physical taking of the property from the person of another”)); accord, e.g., Ulmer v. United
States, supra note 11, 649 A.2d at 298 (quoting Turner); United States v. Mathis, 295 U.S.
App. D.C. 296, 306, 963 F.2d 399, 409 (1992) (“under D.C. law, a defendant may be
convicted of a crime requiring proof of ‘force or violence’ when the only force used is that
necessary to lift a wallet from a pocket”). Thus, under the government’s theory, the force
that appellant used to pick up the rifle from Ms. Ashmon’s lap would satisfy the “force”
requirement of the statute, and the error in the “take or keep” instruction would arguably be
harmless.
The problem with this theory is that it was never made known to the jury. The
government did not differentiate, either in its presentation of the evidence or in its closing
argument, between the force necessary to pick up the rifle from Ms. Ashmon’s lap and the
separate act of force that occurred a few moments later when appellant shot Mr. Carpenter.
Nor did the court’s instruction draw such a distinction; instead, it was focused, at the urging
of the government, on the use of force to “take or keep” the rifle rather than simply to
“take” the rifle. Given this record, I cannot find the instructional error harmless.14
14
I suspect that the issue that prompts the present discussion in both this opinion and
the Per Curiam opinion is the result of careless drafting of the indictment. The indictment
should have charged appellant with taking the rifle from the immediate actual possession of
Ms. Ashmon, which is what the evidence actually showed; instead, however, it stated that
the rifle was taken from the immediate actual possession of Mr. Carpenter. Cf. Joseph v.
United States, 597 A.2d 14, 19 (D.C. 1991). To be sure, the rifle was also — at least in
(continued...)
26
To summarize, I would reject the broad view of “taking” and adopt the more narrow
view, wherein the taking is complete as soon as the property at issue is in the possession
and control of the robber. Thus a robbery does not occur if force is applied only after the
initial taking, in order to effect an escape or to retain control. In such a situation, the
offender may be deemed guilty of assault and larceny (or theft), but not robbery. Because
the trial court instructed the jury otherwise, I would reverse appellant’s conviction of armed
robbery, along with his felony murder conviction based on that same armed robbery. Since
my colleagues do not agree, I respectfully dissent.
14
(...continued)
theory — within Carpenter’s immediate actual possession as well as Ashmon’s, given such
cases as Leak and Spencer; see note 3, supra. Nevertheless, if the indictment had been
more carefully written, there would probably have been no occasion for the court to modify
the standard instruction with the “take or keep” language, and this issue would never have
arisen on appeal.
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