Bartley v. United States

NEBEKER, Associate Judge:

Appellants George Bartley and Peter Hackett were charged in a six count indictment with armed robbery, D.C.Code §§ 22-2901, -3202 (1981), and two counts each of assault with intent to rob while armed, id. § 22-501. Each of the six counts was charged alternatively, it being alleged that appellants were armed with either a pistol, id. § 22-3202(a) or with a pistol or imitation thereof, id. They were found guilty of armed robbery while armed with an operable pistol, and two counts each of assault with a deadly weapon.¹ On appeal, they claim that the trial court erred in admitting evidence of another armed robbery committed by them in Maryland. They also contend that the court abused its discretion in refusing to impose sanctions on the government for its failure to preserve a tape recording of a 911 call made by one of the victims of the robbery in the District of Columbia. Additionally, they claim that the evidence was insufficient to show that the pistols used in the robbery were operable. And finally that the trial court misstated the law on proof of intent in its final instruction to the jury. We affirm.

I

The Saferight Robbery

On the afternoon of September 21, 1983, the Saferight grocery store, a discount store owned by Giant Food, located at 300 Riggs Road, N.E., was robbed by two armed men. Jeffrey Charles, a produce clerk at Saferight, was stocking shelves in the produce area when he noticed two men standing near the store’s office, approximately twenty feet away.² Charles took note of these men because they had been in the store approximately seven minutes earlier. They had walked around in the produce section, but had left the store without making a purchase. Charles now observed the two men standing near the door to the office, looking around and checking a watch that one of the men was wearing. At that point, Fay Sampson, the assistant manager, entered the booth. As the door closed behind her, one of the men, later identified as appellant Hackett, attempted to grab the door knob, but was unsuccessful as the door closed and locked. Hackett then jumped up onto the booth and attempted to crawl over the top of the door. Charles, realizing that something was amiss, started to walk away from the booth towards the rear of the store. He was stopped, however, by the second man, later identified as appellant Bartley. Bartley, exhibiting a pistol in his waistband, told Charles to come back.

Sampson, who was alone in the booth, was about to exit when she saw a hand come over the top of the door. She shoved the door, and tried to exit, but was stopped by Hackett, who, “wavpng]” his gun, ordered Sampson back inside. Once he and Sampson were in the booth, Hackett demanded money. He reached for the mailbag and told Sampson to put the money inside. For the next two or three minutes, Hackett held his gun, while he and Sampson emptied the cash pans into the mailbag. During that time, Hackett was no more than a foot away from Sampson.³

Charles Tippett, the produce manager, heard the commotion in the office and started toward the telephone to call the police. Bartley approached Tippett from behind and told him to “stay out of it unless you want to get hurt.” Soon thereafter, customers began to come into the store. This prompted Bartley to warn Hackett (who was still in the booth) by yelling; “[m]anager, manager, we got company. It was [sic] getting busy down here.” Hackett then emerged from the booth and he and Bartley fled out the front door and around the back of the store. They were last seen running over a hill behind the store.

After Bartley and Hackett had made good their escape from the store, Sampson called the police and described both robbers, using information supplied by Tippett to describe Bartley.⁴ A police radio run containing a description of the robbers was then broadcast.⁵

Detective Vernon Jones arrived at the Saferight approximately twenty minutes after the robbery and interviewed Sampson, Charles, and Tippett. Sampson described the robber who came into the booth as a black male in his early twenties, about six feet tall, 160 pounds with close cut hair and no facial hair. He was wearing a blue plaid shirt, blue jeans and was armed with a small revolver. Charles described the robber who held him and Tippett at gunpoint as a black male, twenty-three or twenty-four years old, six feet one inch tall, 160 pounds, short, close-cut hair and a full beard. He was wearing a gray sweat jacket, blue jeans and was armed with a small black revolver. Tippett was unable to describe any physical characteristics of the robbers.

II

The Giant Food Store Robbery

One week later, on the afternoon of September 28,1983, Bartley and Hackett were apprehended after robbing the Giant Pood store located at Riverdale Plaza in Prince Georges County, Maryland. On that day, cashier Wilda Hilly was on her way to the office when Bartley came up behind her, stuck a gun into her back and told her to step into the office.⁶ As Hilly was being forced into the office, she noticed another man standing at the office door. Once inside, Bartley told Hilly and Revas Tilly, another employee who was already in the office, to take the mailbag off the door, empty its contents, and fill it with money from the cash pans in the safe.

While Hilly and Tilly were complying with Bartley’s demand to empty the safe, Lorenzo Taylor, a third employee, started towards the office to investigate the suspicious activity going on inside. As he approached the office, he saw Hackett standing outside the door. At that point, without being seen by either Bartley or Hack-ett, Taylor ran to the rear of the store to call the police.⁷

Officer Steve Grimes of the Prince Georges County Police was on patrol near the Riverdale Plaza Shopping Center when he received a broadcast regarding the robbery of the Giant store. He drove to the rear of the shopping center, where, less than a minute after receiving the broadcast, Bart-ley ran directly across his path, away from the store. After a short chase, Bartley was apprehended as he climbed into a car in which Hackett was already seated. Recovered from the car were two small handguns and the mailbag, which contained rolls of coins and currency. Both Hackett and Bartley pled guilty to the charges arising out of the Maryland robbery.

Ill

Prior to trial, the government sought to introduce the evidence of the Maryland robbery on the grounds that it showed the identity of the robbers and a common scheme or plan. Appellants objected then, as they do now, on the grounds that the two crimes were not in any way unique. Rather, appellants argue that these robberies were committed in a manner that would suggest itself to any pair who considered such an enterprise. So viewed, argue appellants, the Maryland robbery offers no relevant evidence as to either identity or the existence of a common scheme or plan. We disagree.

Our starting point is Drew v. United States, 118 U.S.App.D.C. 11, 16-16, 331 F.2d 85, 89-90 (1964), which sets forth the relevant concerns:

It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose....

Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value. [Footnotes omitted; emphasis in original.]

The admission of other crimes evidence “need not depend on the presence of one distinctive similarity but the court can consider the totality of the factual circumstances which, amalgamated, lay a sufficient basis for admission under the Drew doctrine.” Gates v. United States, 481 A.2d 120, 123 (D.C.1984); Warren v. United States, 436 A.2d 821, 833 (D.C.1981). The probative value of the evidence must be weighed against its prejudicial effect. Willcher v. United States, 408 A.2d 67, 75 (D.C.1979). We will reverse the trial court’s decision to admit the evidence only if it was an abuse of discretion to do so, Gates v. United States, supra, 481 A.2d at 123, for it is generally conceded that undue prejudicial effect may be outweighed by the probative value. Drew v. United States, supra.

In dealing with this issue, the trial court and the parties have used the phrase “common scheme or plan” as an alternative theory of admissibility of the Maryland store event. We view the evidence of that robbery, that is the particular way in which it was executed, as proof of identity. It is the commonality of detail or “plan/scheme” which reveals a particular knowledge and use of office layout that is more probative than unduly prejudicial. We note that identity was an issue of concern since there had been a line-up misiden-tification by one witness and unsureness of identity by others.

Both robberies occurred in the afternoon at grocery stores owned by the Giant Food store chain.⁸ Both stores had similar floor plans, insofar as the office, which contained the store’s safe, cash pans and a convenient mailbag was located in a booth at the front of the store. The modus oper-andi in both robberies was the same: in each, the men entered the store, loitered for awhile and asked a question of a store employee. Then one of the men forced his way into the office at gunpoint, while the other waited directly outside of the office and acted as a lookout. Once in the office, the robber demanded that the cash in the safe be emptied into the store’s mailbag, which in both cases, was readily available on the door inside the office. Finally, when the robbers fled, they ran out the front door and around to the rear of the building.

Also significant is the fact that both robberies occurred within one week of each other. See, e.g., Gates v. United States, supra, 481 A.2d at 123 (rape and murder followed by assault nineteen days later); Brooks v. United States, 448 A.2d 253, 257 (D.C.1982) (rapes occurring nine days apart). Taken in their entirety, “the calculus of these factors establishes a sufficient basis for the ... identity [prong] of the Drew test.” Gates v. United States, supra, 481 A.2d at 124.⁹

In addition, numerous steps were taken during the trial to impress upon the jury the limited use to which the evidence could be put. At several points, the jury was told that the evidence of the Maryland robbery was admitted to show only intent, identity or common scheme or plan, and not to show a predisposition toward criminal acts.

First, the jurors were examined during voir dire as to whether each felt that he or she could apply the evidence in the prescribed manner. Second, immediately following the empaneling of the jury, the court instructed them on the limited use of the evidence concerning the Maryland robbery. Third, prior to receiving any testimony relating to the Maryland robbery, the court gave a cautionary instruction to the jury, again emphasizing the limited use of the evidence. Fourth, the government, in its closing argument, mentioned the limited use of the evidence, and referred the jury to the trial court’s previous instructions. Finally, the trial court, in its final charge to the jury, again emphasized that the evidence was to be used only to determine identity or common scheme or plan, and for no other purpose.

These prophylactic steps taken by the court and counsel during the voir dire, prior to the presentation of evidence, in closing argument and instructions, “could only reinforce in the jurors’ minds that the incidents were separate and the other crimes evidence was admissible only for the prescribed, limited purposes.” Gates v. United States, supra, 481 A.2d at 124. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the evidence of the Maryland robbery.

IV

Appellants next contend that the trial court abused its discretion in failing to impose sanctions on the government following the government’s failure to preserve certain Jencks material. Specifically, appellants claim that the government’s erasure of a tape recording containing Fay Sampson’s 911 emergency phone call to the police warranted the striking of Sampson’s subsequent trial testimony. We disagree.

The government has the duty to preserve statements of witnesses covered by the Jencks Act, 18 U.S.C. § 3500 (1982).¹⁰ Montgomery v. United States, 384 A.2d 655, 661-62 (D.C.1978). This duty extends not only to the prosecutor, but to the government as a whole, including investigative agencies. Id.

The duty of preservation is violated when such evidence is lost or destroyed as a result “of either negligence or purposeful destruction accompanied by either bad motive or bad judgment.” Id. (quoting United States v. Perry, 153 U.S.App.D.C. 89, 99, 471 F.2d 1057, 1067 (1972)).

A finding of improper destruction, however, does not require that sanctions automatically be imposed. Cotton v. United States, 388 A.2d 865, 870 (D.C.1978); United States v. Perry, supra, 153 U.S.App. D.C. at 100, 471 F.2d at 1068. Rather, once a violation of the rule of preservation is found, “the totality of the circumstances” must be considered in determining what sanctions to apply. Montgomery v. United States, supra, 384 A.2d at 662; Williams v. United States, 385 A.2d 760, 763 (D.C. 1978). When a discoverable statement has been lost or destroyed, the trial court “must weigh certain factors in exercising its discretion whether to strike a witness’ testimony.” Fields v. United States, 368 A.2d 537, 541 (D.C.1977) (quoting Hardy v. United States, 316 A.2d 867, 870 (D.C. 1974)). The factors to be considered are (1) the degree of negligence or bad faith involved, (2) the importance of the evidence lost, and (3) the evidence of guilt adduced at trial. Cotton v. United States, supra, 388 A.2d at 869. Thus, we must assess the degree of prejudice suffered by the defense as a result of the erasure of the tape, and decide whether the trial court abused its discretion in deciding not to strike Sampson’s testimony.

There is nothing in the record to suggest that the erasure of the tape was the result of either bad faith or a desire to conceal or destroy evidence. To the contrary, the fact that other tapes in addition to the one at issue here were erased supports the trial court’s finding that the erasure was merely an administrative decision. While the erasure was regrettable, we conclude that the loss of the statement was not “accompanied by bad motive or bad judgment of a degree which could warrant refusal to allow an [eyewitness] to give testimony identifying [one of the robbers].” Williams v. United States, supra, 385 A.2d at 763.

In addition, we conclude that any possible prejudice that appellants may have suffered as a result of the erasure of the tape was not of a degree sufficient to exclude Sampson’s testimony.

With regard to appellant Bartley, because the description of him given by Sampson over the telephone was not from her own recollection, but from that of Charles Tippett, the tape would have been of no impeachment value. With regard to both appellants, the record reveals that a transcript of the 911 call was made available to counsel prior to trial. In addition, counsel was also provided with a tape of the radio run that followed Sampson’s call, and the notes of the first officer to interview Sampson on the scene only twenty minutes after the robbery.

We conclude that although the evidence of guilt in this case was not overwhelming, to impose Jencks sanctions here, where all of the above was available to counsel for effective cross-examination, would be the type of “automatic reaction to the unavailability of a statement” as “would restrict rather than enhance the quest for truth.” Washington v. United States, 343 A.2d 560, 563 (D.C.1975).

V

Appellants also contend that the evidence was insufficient to permit the jury to conclude that the weapons used in the robbery were operable.

When Hackett and Bartley entered the Saferight store, each displaying a weapon to back up his demands, they both must have intended that their victims believed that the weapons were capable of being discharged. Just as it would have been reasonable for the Saferight employees to believe that appellants’ weapons were operable, so too would it be reasonable for the jury to conclude likewise. Morrison v. United States, 417 A.2d 409, 413 (D.C. 1980).

Appellants’ final contention is that the trial court committed plain error by instructing the jury that it “may” infer that a person ordinarily intends the natural and probable consequences of his acts. This claim has no merit. See Lannon v. Hogan, 719 F.2d 518, 521 (1st Cir.1983), cert. denied, 465 U.S. 1105, 104 S.Ct. 1606, 80 L.Ed.2d 136 (1984).

Accordingly, the judgments of conviction are

Affirmed.

1 . The trial court granted defense motions to dismiss the four assault with intent to rob charges. However, the jury was instructed as to each count on the lesser included offense of assault with a deadly weapon.

2 . The office is located near the front of the store. It consists of a booth with seven foot high walls, and two steps that lead up to a single door that locks automatically as it closes. Inside the booth are a safe which holds money and register cash pans, a desk, and a file cabinet. A mailbag is kept hanging on the back of the door until approximately 9:30 p.m. each evening, when its contents are emptied and placed in the mail.

3 . Sampson recalled seeing Hackett earlier in the store. While walking behind the office a few moments before the robbery, Sampson was approached by Hackett and asked if Saferight carried watch batteries. She replied they did not, and suggested that he tiy another store.

4 . Sampson never saw Bartley. In fact, she was unaware until after the robbery that anyone other than Hackett was involved.

5 . Some initial confusion surrounded the radio broadcast. Apparently there were two robberies that day. The robbery at the Saferight store and another robbery, close in time, of a Safeway store. Four different individuals, two at each store, were involved in these two robberies. However, the broadcast apparently created some initial confusion as to whether the same two individuals had robbed both stores. However, the robbers of the Safeway store, unlike appellants here, were described as having been armed with shotguns.

6 . The office in this store is also a small booth near the cash registers in front of the store. It contains a safe and a mailbag that hangs on the back of the door.

7 . Taylor had seen Bartley and Hackett in the store earlier. Five or ten minutes before the robbery, Taylor had observed appellants in an aisle "staring into space." As Taylor walked by them, Bartley asked for some Jello products. Taylor pointed to the Jello display and continued down the aisle. Taylor thought the question was odd given the fact that Bartley and Hackett were directly in front of the display.

8 . By our reliance upon this factor, we do not mean to suggest that appellants were aware of the corporate structure of a large supermarket chain. However, the evidence established that all of the supermarkets owned by Giant Food had similar floor plans at least insofar as the location and structure of the store office. It is reasonable to conclude that although Bartley and Hackett may have been unaware of the corporate relationship between the two stores, they were aware of the resulting similarities in design as design facilitated their criminal venture.

9 . Ali v. United States, 520 A.2d 306 (D.C.1987), is not to the contrary for here there is no shift of theories or admissibility at the appellate level which precluded earlier trial court ruling and limiting instructions. Moreover, this case presents a clear identity predicate for the evidence whereas Ali involved predisposition for other deviate sexual acts. See the concurring opinion therein by Chief Judge Pryor and Judge Rogers.

10 . We assume, as have the parties, that the recording contained a statement required to be produced pursuant to 18 U.S.C. § 3500(e). Accordingly, we will address only the correctness vet non of the court's decision not to impose sanctions upon the government following its nonpreservation of the recording.