CHRISTIAN D. TAYLOR v. UNITED STATES. , 2016 D.C. App. LEXIS 158 ( 2016 )

District of Columbia
Court of Appeals
No. 12-CF-1527
MAY 12 2016
CHRISTIAN D. TAYLOR,
Appellant,
v. CF1-11826-10
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: WASHINGTON, Chief Judge; FISHER, Associate Judge; and NEBEKER,
Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment on appeal is affirmed in part
and remanded to the trial court for merger of the robbery convictions in accordance with
this opinion.
For the Court:
Dated: May 12, 2016.
Opinion by Senior Judge Frank Q. Nebeker.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CF-1527 5/12/16
CHRISTIAN D. TAYLOR, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-11826-10)
(Hon. Thomas J. Motley, Trial Judge)
(Argued September 15, 2015 Decided May 12, 2016)
Nicholas B. Lewis, with whom Anand V. Ramana and Christopher D.
McEachran, were on the brief, for appellant.
Anne Y. Park, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Chrisellen R. Kolb, Deborah Sines, and Glenn L. Kirschner, Assistant
United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and NEBEKER,
Senior Judge.
NEBEKER, Senior Judge: Appellant Christian D. Taylor appeals his
convictions arising from the armed robbery of Lida Wholesale Market, during
which the market‟s owners, Li Jen Chih and Ming Kun Chih, were killed.
2
Appellant was convicted of two counts of first-degree premeditated murder, four
counts of felony murder, burglary two while armed, robbery while armed, and
seven counts of possession of a firearm during a crime of violence (“PFCV”). He
alleges that the trial court erred when it found him competent to stand trial,
declined to appoint him conflict-free counsel, and instructed the jury regarding the
offense of felony murder during the course of the burglary. In addition, he
contends that the government‟s evidence was insufficient for the jury to find
premeditation and deliberation in order to support his first-degree premeditated
murder convictions. We affirm in part, and remand for the trial court to vacate
four of the murder convictions, and merge the robbery conviction. Resentencing is
unnecessary.
I. Facts
On June 23, 2010, at around 3:00 p.m., appellant entered Lida Wholesale
Market, located in the Northeast quadrant of the District near the intersection of
5th Street and Florida Avenue. After approaching the counter, appellant
demanded, at gunpoint, money from Li Jen Chih, an owner of the market who was
operating the cash register at the time. Li Jen Chih initially refused appellant‟s
demand, causing appellant to fire a shot near, but not hitting, Li Jen Chih. After a
3
scuffle over the gun, Li Jen Chih jumped over the counter to begin physically
fighting with appellant. Additional shots were fired, after which Li Jen fell.
Around that time, Ming Kun Chih, another owner of the store and Li Jen Chih‟s
father, grabbed a pole and rushed at appellant. Appellant fired at least one
additional shot, hitting Ming Kun Chih.
Bystanders outside of the market heard gunshots and saw a man exit the
store, tuck a gun into his waistband, run down the street, and enter a silver Pontiac
GT with the license plate number CV 3855. The car was identified as registered to
appellant‟s mother. Employees inside the store at the time appellant entered
testified to the sequence of events at trial, and identified appellant as the gunman.
The events were captured by surveillance cameras, and two witnesses identified
appellant as the gunman on the video. Two plastic bags found in the market near
where the confrontations occurred were analyzed by DNA forensic experts.
Appellant was deemed by the expert a major contributor to the DNA mixture on
the bags; Li Jen Chih could not be excluded as a possible minor contributor.
Appellant did not present a defense at trial, but argued misidentification to the jury.
4
A. Competency
At his arraignment on March 25, 2011, appellant refused to enter a plea,
stating that he did not understand the charges against him and was “not able to
make a legal determination” regarding whether to plead guilty. The trial court
ordered that appellant undergo a twenty-four hour competency screening.
However, a few days later, a licensed clinical psychologist at St. Elizabeths
Hospital stated that appellant “refus[ed] to fully participate in the evaluation” and
accordingly she was unable to form an opinion concerning appellant‟s competency
to stand trial. Appellant was advised to cooperate, and ordered to undergo another
screening. However, again, appellant refused to participate, and the assigned
psychologist was unable to form an opinion regarding appellant‟s competency to
stand trial.
Following appellant‟s second refusal to participate in a twenty-four hour
competency screening, the trial court ordered that appellant undergo a forty-five
day inpatient evaluation at St. Elizabeths Hospital. At the conclusion of his
inpatient stay, Drs. Robert Benedetti and Robert Morin concluded that appellant
was competent to stand trial. According to the doctors, appellant “correctly
identified plea options and knew the consequences associated with each,” and
5
“evidenced an understanding of the roles of . . . the defense and prosecuting
attorneys, the judge, and the witnesses.” Appellant evinced “no evidence of
delusional beliefs, paranoid ideation, or other psychotic or cognitive processes that
impeded his ability to rationally understand his charges and the court proceedings.”
Appellant was diagnosed with Antisocial Personality Disorder, but no treatment or
medications were required. On June 1, 2011, the trial court concluded that
appellant was competent to stand trial over appellant‟s defense counsels‟
objections as to the nature of the test.1
Six months later, and approximately three weeks prior to the scheduled trial
date, appellant presented with symptoms of an illness: his eyes were closed, his
head was bobbing, he was non-responsive, and later claimed to be unable to hear
or talk. Communicating with the trial court via written notes, appellant claimed
that “[his] senses have been impaired by a higher power . . . . They are on and off
at times.” The trial court noted several indicators that appellant could hear the
proceedings taking place around him, including that appellant had seemed to
respond to a conversation. The trial court noted its concern that appellant was
1
Defense counsel and appellant reported that appellant‟s examiners
provided him with the answers to the test before the test began, and that they told
him to “guess again” until he arrived at the “correct” answer.
6
merely attempting to delay the proceedings, but went on to approve a request for
medical screening.
Several weeks of unproductive hearings followed, in which appellant
continued to claim an inability to speak or hear (despite observations from the trial
court, medical examiners, and detention officers to the contrary). Appellant
refused to cooperate with examiners during a court-ordered medical examination
and two court-ordered twenty-four hour competency screenings. The medical
examination revealed no medical basis for his symptoms.2 After each competency
screening, the examiners found no indication that appellant‟s symptoms were the
result of mental illness, and instead concluded that they were “volitional.”3
2
The psychiatrist at the jail did diagnose appellant with psychotic disorder
not otherwise specified and started appellant on medication. However, it was not
suggested that the disorder caused his symptoms.
3
Following the first screening, the assigned psychologist concluded that it
was “most likely” that appellant‟s “presentation resulted from volitional
characterological traits,” “given the sudden onset of his symptoms, no prior history
of severe mental illness, absence of acute distress, reports from correctional
officers contradicting his self-report of symptoms, and his previous diagnosis of
Antisocial Personality Disorder.”
After the second screening, the examiner concluded that appellant‟s “presentation
and reported symptoms [we]re not typical of people who are mentally ill and
[we]re suggestive of malingering.”
7
Nonetheless, at the examiner‟s suggestion, appellant was ordered to undergo
another forty-five day inpatient examination at St. Elizabeths. A report prepared
by Dr. Michele Godwin at the close of appellant‟s examination concluded that
appellant‟s “selective mutism appear[ed] to be under volitional control” due to his
ability to speak with peers and on the telephone, and his “high frequency of odd,
bizarre, or illogical items across scales [on a screening test for the detection of
malingering] suggest[ed] an attempt to appear highly disturbed.” As a result, the
psychologists concluded that his “symptoms” were not indicative of mental illness,
but rather “a deliberate effort on [his] part to delay or avoid trial.” Appellant was
diagnosed with “Malingering (Psychosis).”
The trial court held hearings on appellant‟s competency on April 20 and 25,
2012, and defense counsel was provided an opportunity to cross examine Dr.
Godwin. During her testimony, and in support of her finding that appellant was
competent to stand trial, Dr. Godwin noted: “In the courtroom right now Mr.
Taylor is writing messages to his attorney, Mr. Harris [his attorney] is taking
breaks to talk to Mr. Taylor. He‟s paying attention. He‟s tracking from my
understanding of observing him right now.” The trial court ultimately found
appellant competent to stand trial.
8
B. Conflicts with Counsel
Appellant evinced difficulty working with his appointed attorneys
throughout the proceedings before the trial court. Mr. Geoffrey Harris was
appointed to represent appellant on October 7, 2011, as “co-counsel” with
appellant‟s counsel at that time, Mr. Atiq Ahmed. Earlier, on June 1, 2011, Mr.
Ahmed had moved to withdraw on the basis that appellant questioned his ability to
represent him. The motion was denied, but their differences continued to be
evident at the October hearing. The court appointed Mr. Harris to “assist” Mr.
Ahmed, given appellant‟s uncooperativeness, and to ensure the originally-
scheduled trial date, in January 2012, continued as scheduled.
On January 5, 2012, Mr. Harris filed a motion to withdraw, stating that he
had received notice that appellant filed a complaint against him with the Office of
Bar Counsel. At the next hearing, appellant claimed an inability to hear or talk, as
discussed supra. However, Mr. Harris‟s motion was briefly discussed, and the trial
court indicated it would address Mr. Harris‟s motion to withdraw after the
competency issue had been resolved. The court permitted Mr. Ahmed to
withdraw, based on appellant‟s bias against Mr. Ahmed‟s religion, on January 27,
2012.
9
The court addressed the motion to withdraw filed by Mr. Harris—who was
at this point appellant‟s sole counsel—at a competency hearing. At the hearing,
Mr. Harris asked the trial court to recuse itself so that he could speak freely about
his alleged conflict without prejudicing appellant. The trial court again indicated
that it would address both the conflict of interest and recusal issues after resolving
appellant‟s competency.
After finding appellant competent to stand trial on April 25, 2012, the trial
court turned to Mr. Harris‟s pending motions for recusal and to withdraw as
counsel. The trial court noted that appellant would be tried by a jury, rather than in
a bench trial. Accordingly, as the court was most familiar with the case, it would
not recuse itself at that point and would hear Mr. Harris‟s motion.4 In an ex parte
hearing on April 30, 2012, Mr. Harris indicated appellant‟s concern about Mr.
Harris‟s perceived lack of experience,5 that appellant had threatened to bring a
4
The government stated its opposition to Mr. Harris‟s motion to withdraw
prior to the ex parte hearing.
5
Mr. Harris had been appointed to represent approximately six juveniles in
murder cases, two adults in murder cases, and had represented defendants in
approximately thirty or forty felony jury trials. However, none of his murder cases
had been tried before a jury.
10
malpractice suit against him,6 and referenced appellant‟s complaint to the Office of
Bar Counsel, which he presumed to be premised in part on their differences over
how to proceed with the case. After hearing Mr. Harris‟s concerns, the trial court
denied Mr. Harris‟s motion to withdraw. The court concluded that Mr. Harris was
competent to handle the issues at hand, and that appellant‟s threats of malpractice
suits did not disqualify Mr. Harris, as appellant “would make [those threats]
against any counsel who represents him. As far as my understanding, those are the
same types of threats he made with regard to Mr. Ahmed in this situation.”
Ultimately, the court indicated its underlying concern: even were the court to
replace Mr. Harris, appellant would not cooperate with any future attorney, nor
would appellant be satisfied with the experience level of any future attorney.
Accordingly, the court concluded that no genuine conflict of interest existed that
required Mr. Harris‟s withdrawal:
Mr. Taylor in this situation is manipulating it to his own
ends and the Court needs to protect against such
6
Mr. Harris represented that appellant first made “vague ambiguous
threats” against him in December 2011. During the time that Mr. Harris‟s
withdrawal motion remained pending, he “continue[d] to receive the threats against
[him] and … [his] family, promises of malpractice suits.” However, at that time,
Mr. Harris seemed concerned not about physical violence, but rather “a potential
malpractice suit and the money and time that would take to resolve that regardless
of the legitimacy of the complaint.”
11
manipulation in its decision whether to grant the relief
you seek or not. That he, by his conduct, has and is
creating a conflict resulting from his own decision to
avoid going to trial. In essence, by him creating that it
doesn‟t create a real [conflict], to the extent it does, it‟s
one that he has presented.
Nonetheless, the trial court did indicate that it would appoint a co-counsel to Mr.
Harris to assist him with the case. The following day, the court appointed Mr.
Craig Moore as co-counsel to Mr. Harris.
Mr. Harris renewed his motion to withdraw approximately one month later
on the basis that while Mr. Moore‟s appointment was helpful it did not address the
underlying conflict of interest. Mr. Harris also noted two additional grounds for
his motion: that appellant wanted to call him as a witness in the defense case, and
that appellant continued to be dissatisfied with the frequency of Mr. Harris‟s visits.
The trial court again denied the motion, reiterating its belief that appellant would
manufacture a conflict with any attorney appointed to represent him.
On June 4, 2012, one week prior to trial, appellant filed a motion requesting
that the court recuse itself. Appellant argued that the nature of the information
disclosed in the April 30 ex parte hearing would cause an objective observer to
doubt whether the court could remain impartial. Additionally, on June 11, 2012—
12
the morning that voir dire was scheduled to begin—Mr. Harris notified the court
that appellant wished to proceed pro se, and requested a continuance in order to
prepare himself to do so.7 The trial court denied appellant‟s motion for recusal, for
a continuance, and to represent himself pro se.
Shortly thereafter, after the jury was sworn, Mr. Harris renewed his motion
to withdraw on the basis that appellant had threatened Mr. Harris‟s children. The
trial court denied the motion, and, at the bench, warned appellant that he was
moving forward with trial despite appellant‟s attempts to delay. Trial began the
following day.
II. Competency
“Constitutional due process requires that a criminal defendant be mentally
competent for a trial to proceed.” Higgenbottom v. United States, 923 A.2d 891,
897 (D.C. 2007) (citing Medina v. California, 505 U.S. 437, 439 (1992)). A
defendant is presumed competent, and it is the burden of the party asserting the
7
Appellant also requested a continuance to secure additional witnesses, and
notified the court of his plan to call Mr. Harris and the United States to the witness
stand.
13
defendant‟s incompetence to so prove by the preponderance of the evidence.
Hargraves v. United States, 62 A.3d 107, 111 & n.9 (D.C. 2013) (citing D.C. Code
§ 24-531.04 (b) (2012 Repl.); Medina, supra, 505 U.S. at 451-53). To evaluate a
defendant‟s competence, the trial court looks to whether the defendant “has
sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding,” and “has a rational as well as factual understanding of the
proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960);
accord D.C. Code § 24-531.01(1); Phenis v. United States, 909 A.2d 138, 152
(D.C. 2006). A determination of competency is committed to the trial court‟s
discretion, and we will not overturn it unless it is “clearly arbitrary or erroneous.”
Bennett v. United States, 400 A.2d 322, 325 (D.C. 1979) (quoting United States v.
Caldwell, 543 F.2d 1333, 1359 (D.C. Cir. 1974)).
Appellant contends that the trial court abused its discretion in deeming him
competent to stand trial. We disagree. The trial court‟s finding of competency
was well-supported by the record. The appellant had no prior history of mental
illness. Appellant was deemed competent by two separate mental health
professionals at St. Elizabeths Hospital. During the competency hearings, Dr.
Godwin testified that appellant was competent, suffered from no mental illness,
and was feigning his symptoms. Officer Michael Wilkerson, and U.S. Deputy
14
Marshal Shindledecker also testified to information supportive of a finding that
appellant was feigning his illness in an attempt to delay trial. The trial judge‟s
personal observations of appellant in the courtroom—in which he noted that
appellant appeared to consult with counsel, strain to listen to conversations at the
bench, and understand what was happening in the courtroom—supported his
competency findings. Moreover, it was appellant‟s burden to overcome the
presumption that he was competent to stand trial. He presented no evidence to
overcome that presumption. Accordingly, the trial judge did not clearly err in
finding that appellant was competent to stand trial.
III. Counsel’s Alleged Conflict of Interest
Appellant contends that an actual conflict of interest existed between himself
and Mr. Harris, which adversely affected Mr. Harris‟s performance. Appellant
further contends that the trial court erred in failing to recuse itself after declining to
permit Mr. Harris to withdraw based on a conflict of interest. Appellant contends
both of these errors require reversal of his convictions; we address each in turn.
The Sixth Amendment guarantees the right to effective assistance of
counsel. Freeman v. United States, 971 A.2d 188, 194 (D.C. 2009). “The first
15
element of effective assistance of counsel is counsel‟s ability and willingness to
advocate fearlessly on behalf of his client.” Id. (quoting Douglas v. United States,
488 A.2d 121, 135 (D.C. 1985)). The trial court has a duty to inquire into any
potential conflict of interest that comes to its attention before or during trial. See
Douglas, supra, 488 A.2d at 136. If the inquiry “reveals [that] an actual conflict of
interest exists, and the defendant objects to continued representation by the
conflict-burdened attorney, new counsel must be appointed.” Id. In this case, the
court did inquire, and appellant did object to continued representation by Mr.
Harris so our initial inquiry is focused on whether an actual conflict existed at all.
However, “a conflict alone is not enough to permit reversal of a conviction on
appeal,” unless the conflict can “be shown to have adversely affected the trial
attorney‟s performance.” Malede v. United States, 767 A.2d 267, 272 (D.C. 2001)
(quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)).
Appellant argues that there was an actual conflict of interest between himself
and Mr. Harris because of the bar complaint filed and alleged threats made by
appellant against counsel and his family. The mere filing of a bar complaint does
not always create an actual conflict of interest. See Malede, supra, 767 A.2d at
272. However, appellant relies on Douglas in which, upon inquiry by the court,
the trial judge explicitly found that a bar complaint lodged by the defendant against
16
counsel did create an actual conflict that would adversely affect counsel‟s ability to
provide effective assistance at trial. See Douglas, supra, 488 A.2d at 137.
Accordingly, trial counsel was allowed to withdraw. Id. In reviewing Douglas,
this court said, after finding there was an actual conflict that would adversely affect
counsel‟s representation at trial, “had [the trial court] simply ignored Bar
Counsel‟s investigation and allowed the trial to continue with [the same attorney]
representing appellant, it is reasonable to conclude that any conviction obtained as
a result would have been vulnerable if appealed on Sixth Amendment grounds.”
Id. Even so, Douglas does not preclude what happened here. Here, the court did
appropriately inquire into the potential conflict, explicitly found that there was no
actual conflict, but rather that appellant was purposely manipulating the court in
order to prevent going to trial, and then appointed co-counsel to assist Mr. Harris.
The court‟s remedy of appointing Mr. Moore as co-counsel for trial was sufficient
to prevent any potential prejudice to appellant. The record shows that, in
practicality, Mr. Moore acted as lead counsel during trial, while Mr. Harris took a
back seat. Appellant has not complained about Mr. Moore‟s performance and the
appellant fails to direct us to any prejudice suffered as a result of Mr. Harris‟
continued representation. We agree with the trial court that appellant was
malingering and that his attempt to manufacture a conflict of interest with his
attorney was merely another effort to manipulate the court and avoid trial.
17
Appellant further argues that the trial court erred in declining to recuse itself
from presiding over the trial when it did not recuse itself from the hearing on Mr.
Harris‟ motion to withdraw. Appellant maintains that in hearing the motion to
withdraw, the court exposed itself to statements prejudicial to appellant which
could have affected its neutrality during the remainder of the proceedings.
Rule 2.11(A) of the Code of Judicial Conduct for the District of Columbia
Courts provides that, “a judge shall recuse himself or herself in any proceeding in
which the judge‟s impartiality might reasonably be questioned.” Appellant relies
on a footnote in Witherspoon which directs, “[i]n order to avoid the prejudice to
appellant which could arise when defense counsel explains the ethical
considerations which underlie his motion to withdraw, the judge who presides at
appellant‟s trial should be different from the judge who conducts the conflict
inquiry.” Witherspoon v. United States, 557 A.2d 587, 591 n.2 (D.C. 1989). We
view this footnote as perhaps a rule of prudence, but not an inexorable command.
Here, the motion to withdraw had seemingly become as important as the trial itself.
Judge Motley was in the best position to hear such a motion because he had been
privy to the complex and tumultuous relationship between counsel and appellant,
as well as appellant‟s relationships with his previous lawyers. While in some
cases, judicial efficiency may counsel in favor of recusal from hearing a potentially
18
prejudicial pretrial motion (as was the case in Witherspoon) in other cases judicial
efficiency may counsel in favor of hearing the pretrial motion, and recusing oneself
from the subsequent trial if need be. Judge Motley explicitly noted that if he had
been prejudiced after the hearing on the motion to withdraw, he would recuse
himself from the trial. It is clear that Judge Motley was well aware of his duty to
recuse himself if his impartiality might reasonably be questioned, but determined
that it was not necessary and no resulting bias appears in the record.8 We see no
reason to doubt Judge Motley‟s finding that there was no “basis to believe that
[his] ability to conduct [the] trial in a fair and impartial manner [was]
compromised.”
IV. Evidence Supporting First-Degree Premeditated Murder Conviction
Appellant contends that the government presented insufficient evidence that
the murders were premeditated and deliberate, and accordingly those convictions
should be reversed. Because only one murder conviction per victim can stand, and
8
Trial judges are presumed to be impartial; they are routinely exposed to
potentially prejudicial—even damning—information about defendants. As
gatekeepers, trial judges are often privy to an abundance of information, such as
prior criminal convictions, confessions, inflammatory statements, and gruesome
evidence, that is deemed too prejudicial for the jury to hear, yet we still trust that
the judge will conduct the trial impartially.
19
because the sentence will remain the same no matter which murder convictions are
vacated as merged,9 we decline to reach the question of premeditation. We will
vacate the first-degree premeditated murder convictions and uphold only the two
felony murder convictions predicated on robbery.10
V. Merger
The Double Jeopardy Clause of the Fifth Amendment prohibits “multiple
punishments for the same offense.” Lennon v. United States, 736 A.2d 208, 209
(D.C. 1999). It “compels merger of duplicative convictions for the same offense,
so as to leave only a single sentence for that single offense.” McCoy v. United
9
The court imposed the same forty-year sentence for each murder
conviction with the sentences for each of the other convictions within each group
running concurrently with the forty-year murder sentence. As long as one murder
conviction per victim is upheld, the sentence will remain the same. Here we will
uphold the two felony murder convictions predicated on robbery.
10
Appellant contends, and the government agrees, that the court erred in its
felony murder predicated on second-degree burglary jury instruction. Appellant
argues that this court could not find the error harmless and must vacate those
felony murder convictions. The government‟s counter (that the error was
harmless) rested on the fact that the jury was separately, properly instructed on the
first-degree premeditated murder counts, and that because the jury convicted on
those counts, it followed that it necessarily found the requisite intent to kill
required under the felony murder statute. However, because we now vacate the
premeditated murder convictions, we will not find the error harmless. We will
vacate the felony murder convictions predicated on second-degree burglary as
well.
20
States, 890 A.2d 204, 216 (D.C. 2006). The government agrees that some of
appellant‟s convictions merge and that remand is necessary for vacation of two of
the three murder charges relating to each victim. However, the government does
not agree with appellant that his PFCV convictions should merge into one.
In general, “when the convictions for the predicate crimes do not merge []
the associated PFCV convictions do not merge either.” Matthews v. United States,
892 A.2d 1100, 1106 (D.C. 2006) (quoting Stevenson v. United States, 760 A.2d
1034, 1035 (D.C. 2000)). We recognize a limited exception to this general rule
that multiple PFCV convictions will merge, even if the predicate felony offenses
do not merge, if they arise out of a defendant‟s uninterrupted possession of a single
weapon during a single act of violence.” Matthews, supra, 892 A.2d at 1106
(citing Nixon v. United States, 730 A.2d 145, 153 (D.C. 1999)). The appellant
urges the court to see his acts as one continuous act of violence as it did in Nixon.
The government contends that these are distinct acts and each subject to its own
PFCV conviction.
This court has adopted the „“fresh impulse” or “fork-in-the-road” test: If at
the scene of the crime the defendant can be said to have realized that he has come
to a fork in the road, and nevertheless decides to invade a different interest, then
21
his successive intentions make him subject to cumulative punishment. . . .”
Matthews, supra, 892 A.2d at 1106 (quoting Stevenson, supra, 760 A.2d at 1037).
The rationale of the rule is that “[e]ach time the defendant commits an independent
violent crime, a separate decision is made whether or not to possess the firearm
during that crime, thereby exposing the defendant to a separate, additional
conviction of PFCV.” Id. Applying the fresh impulse test, we find that appellant
committed multiple, distinct acts of violence, namely second-degree burglary,
armed robbery, and two first-degree murders. After the commission of each of
those crimes, he acted on a fresh impulse to commit another; this is not in accord
with Nixon. Each of the violent crimes supports its own PFCV conviction.
We vacate both first-degree premeditated murder convictions, and both
felony murder convictions predicated on second-degree burglary. Because we
vacate the felony murder convictions predicated on second-degree burglary, the
second-degree burglary convictions can stand on their own.11 We uphold the
felony murder convictions predicated on robbery so we must merge the predicate
robbery conviction. For sentencing, the trial court divided the convictions into two
groups, one group for those relating to each of the murder victims. It applied the
11
Had we upheld those felony murder convictions the burglary convictions
would merge into the murders.
22
same forty-year sentence for each murder conviction with the sentences for each of
the other convictions within each group running concurrently with the forty-year
murder sentence. Therefore, even though remand is necessary to merge the
robbery convictions, resentencing is unnecessary.
VI. Conclusion
Accordingly, the judgment in this appeal is therefore affirmed in part and
remanded to the trial court for merger of the robbery convictions in accordance
with this opinion.
So ordered.