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Full Opinion
A jury found appellant, Damian Long, guilty of assault with intent to rob three victims while armed, D.C.Code §§ 22-601 & -3202 (1996 Repl.), on September 8, 1992, at about 10:30 p.m., at 12th and Orren Streets, N.E. He also was found guilty of attempted robbery while armed, id. §§ 22-2902, -3202, and felony murder while armed, id. §§ 22-2401, -3202, of another victim several minutes later on Trinidad Avenue, N.E., a block away from the first crime.
Long cites four grounds for appeal. First, he contends the police conducted an unduly suggestive pretrial identification procedure for the Orren Street victims, creating a substantial likelihood of misidentifying Long as the assailant — and thus tainting irreparably the victims’ subsequent in-court identifications of Long as the armed man who assaulted them. Second, he says the trial court erroneously joined the Orren Street and Trinidad Avenue offenses for trial and then abused its discretion in denying the defense motion for severance. Third, Long argues that the prosecution failed to present sufficient evidence at trial to support the jury’s findings, implicit in the verdict, that (1) Long had been attempting to rob all three of the Orren Street victims when he pointed a pistol at them, and that (2) several minutes later on the same evening, Long had been attempting to rob the murder victim on Trinidad Avenue — the felony underlying his murder conviction. Finally, he maintains the Trinidad Avenue attempted robbery merged with the felony murder conviction. We affirm in part, reverse in part, and remand for reconsideration of Long’s severance motion.
I.
The prosecution presented at trial a series of witnesses who testified that the following events occurred on September 8, 1992. Sometime around 6:30 to 6:00 p.m., appellant Long left the apartment of Seholethia Monk, located at Holbrook Terrace, N.E., where he had been spending time with Ms. Monk, her brother (David), and Kimberly Bridgeford. Long was dressed in a black suede jacket with fringe, a black shirt, black jeans, black boots, and a black silk-stocking skull cap. The Holbrook Terrace apartment was only a few blocks from the area where the Orren Street and Trinidad Avenue incidents at issue here took place.
Several hours later, at about 10:30 p.m., a man dressed in a black fringed jacket, black pants, and black shoes — later identified as
Fox and Davis had fled in the same direction. They feared that their assailant was following them, so they hid in an alleyway a few blocks away from where the car was parked. Fox and Davis then heard gunshots and unsuccessfully tried to flag down a passing police cruiser. They hailed a taxi and went to a nearby police precinct where they told their story and gave a description of the perpetrator.
In the meantime, Fox’s mother, Penelope Boyd-Fox, who had witnessed the assault on the three from the porch of her home on Orren Street, had immediately telephoned “911” for help. While she was still on the phone to the police department emergency number, she heard gunshots nearby. At about the same time, Foster came out from under the car and fled to his home on Orren Street. He telephoned the police to report the crime. While on the phone with the police, he heard gunshots and reported that as well.
Deborah Alford, a neighbor of Louis Johnson from Trinidad Avenue, was sitting on her front porch with several family members at approximately 10:30 p.m. the same night. A few minutes earlier, she had seen Johnson park his Suzuki sports vehicle on the street and enter his home several doors away. Apparently returning home from work, Johnson had been wearing his Army uniform. Shortly thereafter, Alford saw Johnson walking from his home, dressed in his bathrobe, and returning to his Suzuki. At this moment, Alford saw a man dressed in a black jacket (“I didn’t know it had suede fringes on it”), black pants, and a black skull cap walking in Trinidad Street alongside the parked cars. Alford saw the man in black, after he had passed by Johnson, take out a pistol from his jacket and turn back toward Johnson as Johnson put the keys into the car’s doorlock. Alford next saw the man in black and her neighbor “tussling.” Frightened by the sight of the pistol, she and the others fled into their home. A few seconds later, Alford heard a series of gunshots. Johnson was later pronounced dead of gunshot wounds.
Kimberly Bridgeford testified that at around 5:00 p.m. on September 8, 1992, she and her boyfriend, David Monk, had gone with Damian Long to David’s sister’s, Scho-lethia Monk’s, apartment on Holbrook Terrace. After awhile, Long left the apartment and, shortly thereafter, Bridgeford and David Monk left to go the store. On the way to the store, Bridgeford heard gunshots, saw an ambulance, and walked by the Trinidad Avenue murder scene where she saw Johnson lying on the street with blood all over him. Bridgeford and David Monk then returned to the Holbrook Terrace apartment and found Long on the front porch. Long told Bridgeford that he had “shot a man on Trinidad Avenue because the man tried to rob him with a knife.”
Seholethia Monk testified that Long returned later to her Holbrook Terrace apartment on September 8, 1992 “panicking and sweating.” Long had told Monk that “two dudes” had tried to rob him on Trinidad Avenue and that he had just shot one of them. There was blood on Long’s face, he no longer wore a skull cap, and he was carrying a pistol. Long put the gun under a couch. Monk told Long to get his pistol out of her apartment. He then wrapped it in a plastic bag and took it outside. Ten days
Homicide detective Willie Toland investigated the Trinidad Avenue case. When he arrived at the scene, he noticed a black skull cap seven feet from the place where Johnson had been shot, and Johnson’s keys were still in the Suzuki’s passenger door lock. As Toland investigated the crime scene, Foster arrived and informed Toland of what had happened earlier on Orren Street. Toland spoke with Davis and Fox later the same night and a few days later conducted a video lineup in which they identified Long as their attacker.
II.
Long first argues that an impermissibly suggestive out-of-court identification procedure violated his right to due process. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Specifically, he says in his brief that “the identification procedure was suggestive, conducive to irreparable mis-identification and not reliable under the totality of the circumstances. As a result, Fox and Davis’ out-of-court identification[s] and subsequent in-court identification[s] should have been ruled inadmissible.”
A.
The trial court held a pretrial hearing on Long’s motion to suppress Davis’s and Fox’s identifications of Long as the man who confronted them with a pistol on Orren Street at about 10:30 p.m. on September 8. Detective Willie Toland, the officer who showed Fox and Davis the video lineup, was the only witness to testify at the hearing. Toland testified that the identification procedure — a lineup — occurred at 1:00 p.m., on September 10, a day and a half after the Orren Street offenses occurred. The detective responsible for bringing the two witnesses to the lineup arrived late, however, because he had not been able to find their residences when he drove to pick them up. Fox and Davis accordingly missed viewing a “live” lineup of individuals standing in a row, each with a number on a shield attached to him. Detective Toland, therefore, showed each witness “a videotape of the lineup pan.” Separately viewing this video, Long and Fox each identified Long as the Orren Street assailant.
The trial court and counsel both viewed the videotape which the police had shown the witnesses.
The trial court, in what it termed a “preliminary” ruling, explained the way the video lineup differed from a live lineup:
[W]hile the Government is calling this a lineup, it is not a lineup. A lineup is when seven people or nine people or a certain number of people are presented to you all at once, and you have an ability to compare them; compare their height, their weight, their faces, their hair, their complexions. And lineups are notoriously intended for comparative identifications.
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[This] video is not a video of the entire line at once. The video is a picture of each person in the line. In this case the video starts with the person on the extreme right of the line, shows the person’s face, travels up and down the person to show the shield and then goes on to the next person from right to left. There are seven people that are gone through in this way on the video. Never in the video is the entire line shown at once.
The trial court commented that, in a photograph of the lineup that was not shown to the
The fact of the matter is he doesn’t stand out on the video at all, and he doesn’t stand out because of the manner in which the video was taken.
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[T]here just very simply was no suggestivity in the way this video was presented to the witnesses.... [T]he fact that they [the witnesses] were just asked to view the video, the fact that it wasn’t frozen at any given point but allowed ... to proceed [on] its course, all lead me to conclude that there was no suggestivity here.
The trial court further concluded, preliminarily, that the witnesses’ video identification of Long as their assailant had been reliable. The court noted that the identification had occurred on September 10, 1992, just two days after the crime; that Fox’s and Davis’s identifications on the night of the crime had “pretty accurately describe[d] the defendant”; and that both witnesses “were certainly in a position to be able to view the defendant with an eye towards trying to remember what he looked like[,] ... [and] their perspective ... was ... a good one.” The trial court also found that Davis’s statement that she had been 80% sure of her identification of Long was, under the circumstances, “a certain identification.” The trial court accordingly concluded that “the identifications were reliable,” pending Fox’s and Davis’s testimony at trial.
Davis testified at trial that she had parked almost directly in front of Fox’s home in the 1100 block of Orren Street, N.E., on the night of September 8, 1992. Davis said that she, Fox, and Foster had all been in the street next to the ear facing the house while Davis was using a coat-hanger to try to open the locked car door. Davis then had seen Long five to six feet away to her left with a black revolver in his right hand. She had seen Long’s face and described him — immediately after she met with the police on the night of the crimes — as having a large nose, brown skin, and a slender build, about 5'9" to 6' tall. Long had worn a cap pulled tight on his head and had been dressed in a black jacket with tassels, in dark jeans, and in black shoes. Davis had been paying attention to his face, not to his clothing, although she had wondered why he was wearing his jacket “buttoned up” since the weather was so hot. Long had ordered her to go away, and she had looked again at his face before she ran and as she was running away.
Fox testified that she had seen Long walking up the street toward them as they stood beside the car. She had watched him because he looked to her as if he were “up to something” and a “possible thug.” She also had noticed the assailant’s approximate age and height, as well as his clothing: a black fringed jacket, black pants, and black shoes. Long had been carrying a revolver and had pointed it at them, whereupon Fox ran.
The trial court made “a final reliability finding” at the end of the trial testimony, concluding that Davis’s pretrial identification of Long had been “highly reliable.” The court noted that Davis had given the police a “rather accurate description of the defendant’s face,” “there were no prior misidentifi-cations,” “the identification occurred within ... a very short amount of time” since the crime, “there was a high degree of certainty ... in her identification,” and she “was presenting her position in a very accurate way.” The trial court further commented that Davis had “testified that it was kind of like [she was] going in slow motion ... where you see things start going slower and slower.”
The trial court also found that Fox’s pretrial identification had been “quite reliable.”
B.
In ruling on the admissibility of an eyewitness identification, the trial court conducts a two-part inquiry: (1) whether the identification was “ ‘unnecessarily suggestive and conducive to irreparable misidentification,’ ” and (2) whether, under “ ‘the totality of the circumstances,’ ” the “resulting identification was reliable nonetheless.” Stewart v. United States, 490 A.2d 619, 622 (D.C.1985) (citations omitted). The Supreme Court has emphasized that reliability can overcome an unnecessarily suggestive identification:
[Reliability is the linchpin in determining the admissibility of identification testimony- The factors to be considered ... include [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Manson, 432 U.S. at 114, 97 S.Ct. at 2253; see also Towles v. United States, 428 A.2d 836, 845 (D.C.1981) (indicia of reliability outweighed suggestiveness); In re L.W., 390 A.2d 435, 439 (D.C.1978) (same); Cureton v. United States, 386 A.2d 278, 285-86 (D.C. 1978) (assuming suggestive show-up procedures but holding identification nonetheless reliable and admissible); but see United States v. Walton, 411 A.2d 333, 338 (D.C.1979) (indicia of reliability not sufficient to overcome suggestiveness); cf. Henderson v. United States, 527 A.2d 1262, 1263 (D.C.1987) (remanding for trial court to determine whether reliability of pretrial photo array identification outweighed its unnecessary suggestiveness).
We note, first, that the identification procedure in this case was not free of suggestiveness. The lineup featured seven young black men, all attired in pants and short-sleeved shirts. However, only Long’s shirt was black, and Davis and Fox had previously described the assailant as wearing a black jacket. Thus, as the trial court appears to have found, it was unduly suggestive (“What could be more suggestive than that?”) for the police to allow Long alone to stand in a lineup in black when the witnesses had described their assailant as wearing black. See McClain v. United States, 460 A.2d 562, 566 (D.C.1983); United States v. Sanders, 156 U.S.App. D.C. 210, 479 F.2d 1193 (D.C.Cir.1973).
Furthermore, the detective who conducted the video lineup testified at trial that he had asked Fox and Davis “to take a look at the lineup video to see if they saw anyone that was involved in the earlier incident in which an individual dressed in all black approached with a handgun.” (Emphasis added.) This statement obviously added to the lineup’s suggestiveness.
Because of the detective’s reference to an “individual dressed in all black,” the suggestiveness here was greater than in cases where this court has found no suggestiveness conducive to irreparable misidentification based on distinctive clothing. See Stewart v. United States, 490 A.2d 619, 622-23 (D.C.1985) (defendant only person wearing light colored sweatsuit similar to clothing worn by the assailant); Harley v. United States, 373 A.2d 898, 900 (D.C.1977) (defendant wearing plaid coat similar to coat assailant was de
There were, however, several ameliorative facts that reduced the suggestiveness. First, the witnesses did not view a traditional lineup or even a videotape of one. As the trial court itself noted, because the videotape featured a pause-and-pan review of each participant, the witnesses would have been less likely to compare one participant with another, which comparison was the true source of suggestiveness; the procedure in this respect was akin to a photo array where the witness looks at suspects one by one.
We need not determine whether the trial court erred in concluding that these ameliorative facts were sufficient to overcome the suggestiveness inherent in the lineup because, even assuming the video lineup was unnecessarily suggestive, we are not persuaded the trial court erred in concluding that the witnesses’ identifications were reliable nonetheless. See Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Henderson, 527 A.2d at 1269. The trial court found that Long had confronted Fox and Davis with a pistol and spoken to them, providing these witnesses with a substantial opportunity to view his face as well as his clothing. Furthermore, the witnesses each had given the police a description of the assailant within a few minutes of the episode, and those descriptions proved accurate. The witnesses had indicated, moreover, that they were confident of their respective identifications, beginning with a video lineup that occurred only two days after the Orren Street incident. Given these circumstances, we are not persuaded the trial court committed reversible error in concluding that the identifications bore substantial indicia of reliability that overcame any unnecessary suggestiveness. Compare McClain, 460 A.2d at 566-67 (identification reliable despite suggestive procedures), with Sanders, 156 U.S.App. D.C. at 213-14, 479 F.2d at 1196-97 (identification unreliable because of suggestive procedures).
III.
We next consider Long’s argument, raised before trial and renewed at the end of the government’s case, that the Orren Street and Trinidad Avenue charges had been improperly joined for trial. Specifically, Long protested joinder because the offenses were “not similar offenses[, nor] offenses committed in a single act or transaction, nor a series of offenses that [we]re sufficiently connected to each other.”
Super. Ct.Crim. R. 8(a) provides for joinder of offenses when the offenses charged “are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.” We review the trial court’s joinder decision de novo. See Ray v. United States, 472 A.2d 854, 857 (D.C.1984).
The government urges that joinder was proper because the Orren Street offenses
The government also argues that the Orren Street and Trinidad Avenue offenses had been properly joined as part of a “common scheme or plan,” because Long had been “walking the neighborhood in search of people to rob.” We have previously rejected such an argument when considering joinder of defendants under Super. Ct.Crim.R. 8(b), and we reject the argument in this context as well. See Jackson v. United States, 623 A.2d 571, 580 (D.C.1993) (“The goal of obtaining property from others, here money and guns, was too general for joinder of offenses under Rule 8(b).”); Ray, 472 A.2d at 858 (common goal of obtaining property from another is “too broad to unite the offenses”).
The government contends, finally, that the Orren Street offenses were similar in character to the Trinidad Avenue offenses, and we agree. The “similarity of offenses [under Rule 8(a) ] is determined by the content of the indictment”; it is not dependent on whether evidence of one crime would be admissible in the trial of the other. Winestock v. United States, 429 A.2d 519, 524 (D.C.1981). In this case, as was true in Winestock, the two crimes, as charged, “both involved armed robberies which were closely related in time and place.” Id. Accordingly, “it cannot plausibly be maintained that they are insufficiently similar to one another to warrant initial joinder under Rule 8(a).” Id. at 524-25. We must conclude that the two sets of offenses were properly joined.
IV.
Long contends the trial court erred nonetheless in denying his severance motion under Super. Ct.Crim.R. 14. He says the Orren Street offenses should have been severed from the Trinidad Avenue charges because the evidence of each would be inadmissible in a separate trial of the other. Long adds he was further prejudiced because he was “precluded from presenting separate defenses” to each group of charges.
We have noted that
[ejven when offenses are properly joined, it is within the trial court’s discretion to sever counts and order separate trials if the defendant would be prejudiced by join-der. See Ray, [472 A.2d 854,] 857. Our standard of review of such rulings is abuse of discretion, and appellant must make a showing of compelling prejudice to show such error. Winestock, [429 A.2d 519,] 526-27. Of course, there is a potential for*1340 prejudice whenever similar, but unrelated offenses are charged. Id. at 527. However, the requisite prejudicial effect for a severance will not be found where the evidence [1] can be kept separate and distinct at trial or [2] is mutually admissible at separate trials. Id.
Gooch, 609 A.2d at 264-65. Because the incidents were not tried separately and distinctly,
A.
The first sentence of Super. Ct. Crim. R. 14 provides:
[If] it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the Court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
In response to Long’s contention, the government argues that the severance motion was properly denied because evidence of each group of offenses would have been admissible in a separate trial of the other “to explain the immediate circumstances surrounding the offense charged.” Toliver v. United States, 468 A.2d 958, 960 (D.C.1983). Technically speaking, such evidence “is not other crimes evidence because it is too intimately entangled with the charged criminal conduct.” Id.
Commonly, the question is whether uncharged criminal conduct shall be admitted in a trial of the charged crime, but in this case
It is important to recognize, however, that the question whether the Orren Street and Trinidad Avenue incidents present an issue of “mutual inextricable linkage”
In this case, Long presented a misidentifi-cation defense at trial. Thus, identity was a contested issue. See generally Murphy v. United States, 572 A.2d 435, 438 (D.C.1990); Thompson v. United States, 546 A.2d 414, 423 (D.C.1988). Accordingly, if the Orren Street and Trinidad Avenue incidents each reflect evidence that bears on the identity of the assailant in the other, it will not matter whether Toliver or Drew governs the admissibility decision, especially because under either Toliver or Drew the court must exclude the challenged evidence unless “the probative value of the other crimes outweighs any prejudicial impact.” King v. United States, 618 A.2d 727, 730 (D.C.1993); see Johnson, supra note 6, at 1098 (both Drew and Toliver evidence subject to probative value/prejudicial impact balancing test); Williams v. United States, 549 A.2d 328, 333 n. 10 (D.C.1988) (Toliver evidence subject to probative/prejudicial balancing); Tabron v. United States, 410 A.2d 209, 214 (D.C.1979) (same).
We therefore believe it appropriate to scrutinize the evidence of each incident, as it bears on proving identity of the assailant in the other, to determine whether the Toliver /Drew inquiry has meaning or, on this record, amounts to the same evidentiary route.
The Orren Street evidence informed the jury that, at about 10:30 p.m., on September 8, 1992, a man identified as Damian Long, dressed entirely in black (including a fringe jacket and skull cap) and carrying a gun, had walked past Fox, Davis, and Foster, who were standing next to a car. He then turned back, approached the three, and attempted a robbery at gunpoint. After the assault, the witnesses saw Long headed toward nearby Trinidad Avenue. They heard gunshots soon thereafter.
As for Trinidad Avenue, earlier on the same day at about 5:30 to 6:00 p.m., Seholet-hia Monk and Kimberly Bridgeford saw Long, dressed entirely in black (including a fringe jacket and skull cap), leave Monk’s apartment. Bridgeford saw Long depart in the direction of Trinidad Avenue. Later that evening shortly after 10:30 p.m., Deborah Alford, from her front porch on Trinidad
We believe that the testimony of the Orren Street witnesses, Davis and Fox (who identified Long as a would-be robber), that they saw Long heading in the direction of Trinidad Avenue nearby, and then heard gunshots — all around 10:30 p.m., on September 8, 1992 — provided powerful evidence of the Trinidad Avenue assailant’s identity. Indeed, this evidence was particularly significant for the Trinidad Avenue prosecution, when coupled with Monk’s and Bridgeford’s testimony about Long’s admission that he had shot a man on Trinidad Avenue, because the only person who saw the assailant approach Johnson, Deborah Alford, was unable to identify Johnson’s killer (although Alford provided a description consistent with Fox’s, Davis’s, Monk’s, and Bridgeford’s description of Long). The Orren Street evidence also revealed the assailant’s possible motive for approaching Johnson on Trinidad Avenue (robbery).
We also recognize that the Trinidad Avenue evidence was probative of the identity of the Orren Street attacker. Alford’s description of an unidentified, black-jacketed, gun-carrying assailant on Trinidad Avenue, combined with the Monk/Bridgeford testimony that Damian Long had come to Monk’s apartment with a gun, “panicking and sweating,” tended to identify Long as the Orren Street assailant dressed in black seen heading toward Trinidad Avenue just before shots were fired around 10:30 p.m. The fact that Monk testified that Long’s skull cap was missing when he returned to her apartment, coupled with the police officer’s finding a skull cap on Trinidad Avenue, adds to Long’s connection with the Orren Street attack by a man wearing a black skull cap.
Accordingly, without regard to the required probative value/prejudicial impact analysis, we can say that the Orren Street and Trinidad Avenue offenses — if not mutually inextricably linked for trial within the meaning of Toliver ¡Holiday — would be mutually admissible under Drew in separate trials (and thus would not be joined prejudi-
B.
We turn to the ruling on probative value/prejudicial impact. The motions judge said, “I don’t see prejudice under [Super.Ct.Civ.R.] 14 that would justify severance.” The trial judge, in considering the renewed severance motion at trial, referred to the motions judge’s ruling and then added his own belief that Toliver theory controlled, permitting a joint trial because the cases were “inextricably intertwined.” Supra note 6.
The trial judge, therefore, said not a word about probative value relative to prejudice. That was unfortunate. At least as to admissibility of Trinidad Avenue evidence in an Orren Street trial, we see a serious question whether probative value outweighs prejudicial impact. Monk and Bridgeford identified the man — Damian Long — whom Alford apparently had seen accosting Johnson: a man fitting the description of the person who had attempted the robbery only blocks away on Orren Street minutes earlier. This identification evidence from Trinidad Avenue, however, was cumulative of — and of far less probative value than — the direct eyewitness testimony from Fox and Davis (both from the videotape and in court) that Long was the would-be bandit on Orren Street.
The trial judge, after a pretrial severance motion has been denied, has “a continuing obligation to grant a severance if undue prejudice arises as a result of joinder at any time during trial.” Hordge v. United States, 545 A.2d 1249, 1257 (D.C.1988); Sousa v. United States, 400 A.2d 1036, 1041 (D.C.) (same), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 485, 62 L.Ed.2d 408 (1979). The trial judge recognized this obligation: “the Court of Appeals seems to indicate that I have to listen [to severance motions] again and again and again and again.” Here, however, in denying the renewed severance mo