Marquet Bryant and Robert B. Hagood v. United States , 93 A.3d 210 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CF-148
MARQUET BRYANT, APPELLANT,
No. 12-CF-389
ROBERT B. HAGOOD, APPELLANT,
v.
UNITES STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CF3-22308-10 & CF3-22309-10)
(Hon. Florence Y. Pan, Trial Judge)
(Argued February 19, 2014 Decided June 19, 2014)
Stefanie Schneider, Public Defender Service, with whom James Klein and
Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant
Hagood.
Christine Pembroke filed a brief for appellant Bryant.⃰
Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Elizabeth Trosman, and Ephraim Wernick,
Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and RUIZ,
Senior Judge.
⃰
Appellant Bryant chose to submit on the briefs, without oral argument.
2
RUIZ, Senior Judge: Robert Hagood1 and Marquet Bryant2 were convicted
after a jury trial of attempted first degree burglary while armed,3 assault with a
dangerous weapon (“ADW”),4 and related weapons charges: two counts each of
possession of a firearm during the commission of a crime of violence (“PFCV”)5—
one related to the attempted burglary and one to the ADW—as well as one count
each of unlawful possession of a firearm6 and carrying a pistol without a license
(“CPWL”).7 Hagood was also convicted of malicious destruction of property, 8 but
Bryant was acquitted of that charge. Both appellants appeal their convictions
alleging that the trial court erred in failing to sua sponte give the jury a special
unanimity instruction and that their PFCV convictions merge. Bryant raises
additional trial-related claims and challenges the legality of his CPWL conviction.
We agree with appellants that a special unanimity instruction should have been
1
Hagood is also known by the nickname Boo.
2
Bryant is also known by the nickname Q.
3
D.C. Code §§ 22-801 (a), -4502, -1803 (2001).
4
D.C. Code § 22-402 (2001).
5
D.C. Code § 22-4504 (b) (2001).
6
D.C. Code § 22-4503 (a)(1) (2001).
7
D.C. Code § 22-4504 (a) (2001).
8
D.C. Code § 22-303 (2001).
3
given, but conclude that, under plain error review, reversal is not warranted on the
facts of their cases. We further conclude that appellants‟ PFCV convictions merge,
and remand the cases so that the trial court may vacate one of those convictions
and resentence appellants as the court, in its discretion, may find appropriate. We
otherwise affirm the convictions.
I.
The government presented evidence that on November 24, 2010, Tiffany
Bostic, her children, her boyfriend Jerome Edmonds, her mother Lawana Mays,
her sister Taneil Mays, and her stepfather David Marshall, were gathered at
Bostic‟s house in preparation to go to her aunt‟s house for a Thanksgiving
celebration. Edmonds left the apartment to purchase cigarettes. On the way to his
car, he passed appellants Bryant and Hagood who were standing with others on the
sidewalk outside the apartment building. As Edmonds passed, Hagood said, “Look
at this suck ass nigger right here.” Edmonds ignored the comment and continued
on his way to purchase cigarettes. On his return to the apartment, Edmonds again
passed by the group and heard Hagood say, “Look at this bitch ass thing right
here.” Edmonds confronted Hagood and told him, “If you have something to say
to me, you can say it to me; we grown, we‟re men.” At this point, Edmonds
4
testified, he saw Bryant pull a silver revolver from his waistband and hand it to
Hagood.9
Seeing the gun, Edmonds began to back up the steps toward the door to
Bostic‟s apartment saying “everything cool, you got it” as a manner of offering a
“truce.” As Edmonds backed through the door, he and Bostic attempted to close it,
but Hagood rushed to the door, threw his shoulder into it to keep it open, and
forced his head, arm, and the gun through the open portion. The occupants of the
apartment were able to push Hagood out and close the door. They heard a couple
of kicks delivered to the door and then a gunshot seconds later. The bullet traveled
through the bottom portion of the door and grazed Edmonds‟s ankle. None of the
witnesses saw Bryant at the door. The occupants called 911, but because the call
was labeled as a destruction of property complaint, it was not given priority.
Marshall went to shut the blinds on the windows at the back of the apartment
soon after the altercation at the front door and saw Hagood, Bryant, and other men
standing on the patio below the apartment‟s balcony. Hagood raised his arm above
his head and made a beckoning motion. Marshall responded by drawing his flat
9
Edmonds was impeached on this point by the investigating detective, who
testified that Edmonds told her that Hagood pulled the gun out of his own
waistband.
5
right hand from left to right under his chin and around his neck to indicate to
Hagood that any chance to explain “was dead, it‟s too late to explain,” and shut the
blinds.
A few minutes after this exchange, while the occupants were calling 911
again, appellants returned to the front of the apartment. At that point, Hagood
walked in through the front door and said, “What‟s up?” to Edmonds.10 Edmonds
immediately rushed forward and pinned Hagood against the wall. Meanwhile,
Bryant stood at the doorway with the revolver in his hand.11 Marshall and Lawana
Mays pushed Bryant back into the hallway. Bryant then raised the gun above his
head and fired once into the ceiling. The occupants retreated inside and Hagood
and Bryant departed. When Metropolitan Police Department officers arrived a few
minutes later, they encountered a scene where everyone was “very upset.” The
police recovered a bullet from inside the apartment, but could not recover a bullet
10
The occupants testified that at least some of the three locks on the door
were locked after the first altercation. However, Bostic‟s young son, Amonte, was
outside playing during the first incident and returned before the second incident.
Bostic testified they had to unlock the door to let him in; she was unsure whether
the door was locked after Amonte returned. Given that there was no evidence at
trial of damage to the locks on the door, the most reasonable inference is that the
door was not locked when appellants came back to the front door.
11
Edmonds identified the gun produced by the government at trial as the
same one held by Hagood during the initial incident and by Bryant during the
second incident.
6
from the hall ceiling. They also recovered a blue hat with a green bill from the
hallway in front of the apartment door. Edmonds and Taneil Mays identified the
hat at trial as belonging to Hagood.
The police detained Bryant and Hagood a few days later. They were
identified by Bostic and Edmonds, and were placed under arrest. The revolver was
recovered later from a third party.12
At trial, Hagood presented one witness, Michelle Burrell—also known as
“Shellie”—who testified that she witnessed Edmonds say something to Hagood in
passing, but she denied seeing a gun or restraining Hagood.13 She stated that she
left the apartment complex and while walking to a friend‟s house heard “like one
12
On December 7, 2010, thirteen days after the shooting, MPD officers
recovered a silver revolver discarded by Antoine Queen as he fled from police
officers who were conducting a gun interdiction patrol. While Queen was in police
custody he stated that he believed the gun had been used in a shooting at Bostic‟s
apartment complex “two to three weeks earlier” and that he had received the gun
“approximately two days after the shooting, and he was told to hold onto the gun.”
Queen was charged with obstruction of justice and tampering with physical
evidence, and he was tried in the same proceedings as Hagood and Bryant. The
jury acquitted Queen of both charges.
13
Edmonds testified that a woman named Shellie had tried to grab Hagood
to prevent him from pursuing Edmonds with the gun after their verbal
confrontation outside the apartment building.
7
or two shots, and everybody just ran,” including Hagood and Bryant. Bryant did
not put on any evidence.
Appellants argued in closing that the complaining witnesses had fabricated
the entire event. Pointing to inconsistencies in the witnesses‟ testimony,
background conversations on the 911 calls, and the fact that Edmonds was on
probation and “can go back to prison if he‟s found to be involved in gunplay,”
Bryant argued that the occupants had “a lot of time to sit there and decide what
happened, to concoct a story of what they‟re going to tell the police . . . .”
Likewise, Hagood argued that because Edmonds was on probation and did not like
Hagood,14 Edmonds “put whatever happened that night” on Hagood. Neither
appellant offered an alternative version of exactly what happened that night, but
noted that “something happened” and that the occupants were placing the blame on
Hagood and Bryant.
14
Testimony was introduced at trial that Bostic had been having a sexual
relationship with Hagood‟s brother Troy. However, Bostic testified that Edmonds
did not know about the relationship. Edmonds denied knowing Troy or about the
relationship, and he also denied that Hagood had been making disparaging
comments about Bostic as Edmonds passed by him the night of the shootings.
8
In its final charge before releasing the jury to deliberate, the trial court gave
the jury a general unanimity instruction: “In order to return a verdict, each juror
must agree on the verdict. In other words, your verdicts must be unanimous.”
The court did not give a special unanimity instruction that calls the jury‟s attention
to the requirement that they must also be in unanimous agreement with respect to
the underlying acts on which their verdict is based.15
During deliberations, the trial court received multiple notes from the jury. In
one, the jury inquired whether the destruction of property count encompassed only
damage to the door, or whether they could include damage to the ceiling as well.
15
The model special unanimity instruction reads:
[Name of defendant] has been charged with one count of
[name of offense]. You have heard evidence of more
than one act or incident related to this count. [Describe
the separate acts/incidents.] You may find [name of
defendant] guilty on this count if the government proves
beyond a reasonable doubt that [name of defendant]
committed either of these acts/incidents. However, in
order to return a guilty verdict on this count, you must all
agree that [name of defendant] committed [describe first
act/incident] or you must all agree that [name of
defendant] committed [describe second act/incident]
[repeat if other alternative acts/incidents].
CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 2.406 (5th ed.
2013).
9
The court instructed the jury that only the damage to the door could be considered
because it was the only item listed in the charging document. In another note, the
jury inquired whether an acquittal required unanimity as was required for a guilty
verdict. The court instructed the jury that they needed to be unanimous to return
either a guilty or not guilty verdict.
II.
Appellants were each charged and convicted of single counts of attempted
first-degree burglary while armed, ADW, CPWL, and unlawful possession of a
firearm, as well as two counts each of PFCV—one related to the burglary
conviction and one to the ADW conviction. On appeal, they contend that the trial
court erred in failing to sua sponte provide the jury with a special unanimity
instruction because the jury‟s verdict of guilty on each of the counts could have
been grounded on either of the two incidents at the door of Bostic‟s apartment.
Because neither appellant requested a special unanimity instruction at trial we
review for plain error. See Wynn v. United States, 48 A.3d 181, 192 (D.C. 2012).
Under plain error review, it is appellant‟s burden to show error that is clear or
obvious and that affected their substantial rights. See, e.g., Guevara v. United
States, 77 A.3d 412, 418 (D.C. 2013). If such a showing is made, the court may
exercise its discretion to reverse if the error “seriously affect[s] the fairness,
10
integrity or public reputation of judicial proceedings.” E.g., Wheeler v. United
States, 930 A.2d 232, 242 (D.C. 2007) (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
Where a single charge “encompasses two separate incidents,” the Sixth
Amendment requires that “the judge must instruct the jury that if a guilty verdict is
returned the jurors must be unanimous as to which incident or incidents they find
the defendant guilty.” Scarborough v. United States, 522 A.2d 869, 871 (D.C.
1987) (en banc) (quoting Hawkins v. United States, 434 A.2d 446, 449 (D.C.
1981)). A special unanimity instruction protects the right to a jury trial by
guarding against “the possibility that some jurors might vote to convict based
solely on one incident while others vote to convict solely based on the other.” Id.;
see also Schad v. Arizona, 501 U.S. 624, 651 (1991) (Scalia, J., concurring);
Johnson v. United States, 398 A.2d 354, 369 (D.C. 1979). The instruction also
serves to “effectuate the reasonable doubt standard” by ensuring that each juror is
convinced beyond a reasonable doubt that the government has proved each element
of the offense. Scarborough, 522 A.2d at 872 (citing Johnson v. Louisiana, 406
U.S. 356, 362 (1972)). The instruction accomplishes this by telling jurors that they
are required “to be in substantial agreement as to just what a defendant did as a
step preliminary to determining whether the defendant is guilty of the crime
11
charged.” Owens v. United States, 497 A.2d 1086, 1092-93 (D.C. 1985). It should
be given when “distinct incidents go from being different means of committing the
same crime[] to being different crimes.” Hargrove v. United States, 55 A.3d 852,
857 (D.C. 2012) (alteration in original) (quoting Williams v. United States, 981
A.2d 1224, 1228 (D.C. 2009)). The failure to give a special unanimity instruction
when required is error that is clear for the purpose of plain error review. See
Wynn, 48 A.3d at 193; Scarborough, 522 A.2d at 871-72; see also Youssef v.
United States, 27 A.3d 1202, 1208 (D.C. 2011) (holding that trial court erred in
denying defendant‟s request for special unanimity instruction).
A special unanimity instruction is not required, on the other hand, where the
jury is presented “with alternative theories of criminal liability for a single
incident,” Hargrove, 55 A.3d at 857, or “when a single count is charged and the
facts show a continuing course of conduct, rather than a succession of clearly
detached incidents.” Gray v. United States, 544 A.2d 1255, 1258 (D.C. 1988). In
Gray, we identified a number of factors that have been used to determine whether a
course of conduct was factually16 a single incident or separate, distinct incidents.
16
A special unanimity instruction is also required where there are legally
separate incidents. See Scarborough, 522 A.2d at 873. In Gray, we explained that
legally separate incidents arise “when the appellant presents different defenses to
separate sets of facts underlying the charge . . . or when the court‟s instructions are
(continued . . .)
12
We articulated that incidents have been deemed to be factually separate: (1) when
the “acts have occurred at different times and were separated by intervening
events,” (2) when they occurred in different places, (3) “when the defendant has
reached a fork in the road and has decided to invade a different interest,” or (4)
“when the first act has come to an end and the next act is motivated by a fresh
impulse.” Id. at 1257.
We pause here to clarify that while these factors may be of use, they are not
dispositive. See Scarborough, 552 A.2d at 873 (“In short, the unanimity issue
under a single count of an information or indictment does not turn only on whether
separate criminal acts occurred at separate times (although in some cases it may); it
turns, more fundamentally, on whether each act alleged under a single count was a
separately cognizable incident—by reference to separate allegations and/or to
separate defenses—whenever it occurred.”). Instead, they offer guideposts in
resolving the central question in determining whether a special unanimity
instruction was required: whether a reasonable jury “must have” agreed upon one
(. . . continued)
ambiguous but tend to shift the legal theory from a single incident to two separate
incidents. 544 A.2d at 1257-58 (internal citations omitted); see also Guevara, 77
A.3d at 419, 421 (discussing cases). We are concerned in this appeal only with
factually different incidents. See Wynn, 48 A.3d at 193 n.17; Williams, 981 A.2d
at 1230 n.26.
13
particular set of facts as the factual predicate for the verdict or whether some jurors
“could have” believed one set of facts while other jurors could have believed
another. See Simms v. United States, 634 A.2d 442, 445 (D.C. 1993) (“The
requirement for a special unanimity instruction arises when the court cannot
deduce from the record whether the jury must have agreed upon one particular set
of facts.”); Scarborough, 522 A.2d at 873 (“Properly framed, then, the question is
whether, on this record, some jurors reasonably could have believed [one factual
predicate for an offense], while other jurors reasonably could have believed
[another factual predicate].”).
That is, our inquiry focuses on the jury’s perception of the evidence
presented at trial. It does not focus on the defendant’s choice of actions at the time
of the alleged crime. In this context, it is worth pointing out that the last two
factors articulated in Gray—the “fork-in-the-road” or “fresh impulse” tests—grew
out of merger case law. 544 A.2d at 1257 (citing respectively Owens, 497 A.2d at
1096-97,17 and Blockburger v. United States, 284 U.S. 299, 303 (1932)). The Fifth
Amendment concern raised in merger situations of the kind addressed in Owens is
whether the defendant should be punished twice for a single action. 497 A.2d at
17
Owens dealt with both unanimity and merger questions, but the portion
cited in Gray relates only to the discussion of merger. See 497 A.2d at 1095-97.
14
1095. We, therefore, look to the culpability of the defendant and whether the
defendant reached a “fork in the road” after which he could have abandoned his
criminal enterprise, but nevertheless “decided, as a result of a new „impulse‟ to
invade a different interest.” Id. at 1095-96. Thus, we look at the crime from the
defendant‟s perspective in resolving merger questions.
Although unanimity and merger analyses should not be conflated, see
Sanchez-Rengifo v. United States, 815 A.2d 351, 358 (D.C. 2002), a similar type of
logical analysis as employed in the “fork-in-the-road” test may nevertheless be
relevant in evaluating, from the jury‟s perspective, whether it was reasonable for
the jury to have concluded that the defendant was involved in one continuous
incident or distinct incidents. For example, such an inquiry will be useful to
discern whether a jury would reasonably conclude that a defendant‟s actions after
coming to a fork in the road is a factually distinct incident, and thereby determine
whether some jurors could have returned a guilty verdict based upon actions taken
before the fork and some based upon actions after the fork. It is important,
however, to bear in mind that unanimity and merger inquiries must be approached
from different perspectives in light of the different constitutional principles they
are meant to safeguard.
15
Whether the failure to give a special unanimity instruction is erroneous turns
on whether we can conclude, upon considering the context of the entire trial,18 that
the jury was in “substantial agreement as to just what a defendant did” as the
factual predicate for the verdict. Scarborough, 522 A.2d at 873; Owens, 497 A.2d
at 1092-93. In other words, we look at all the circumstances of the trial to
determine whether the jury could have perceived that the defendant engaged in
more than one criminal act, and thus some jurors could have returned a conviction
premised solely on one factual predicate and others solely on a different factual
predicate.
Appellants argue that a special unanimity instruction was required in their
trial because the jury could have reached non-unanimous verdicts on the charges of
attempted armed burglary and ADW. This is so, they contend, because, although
each appellant was indicted for a single charge of attempted armed burglary and a
single charge of ADW, the evidence at trial revealed two different incidents,
separated in time, each of which could be the factual predicate for the attempted
armed burglary and ADW charges. The government argues that a unanimity
18
“[A] judgment of conviction is commonly the culmination of a trial which
includes testimony of witnesses, argument of counsel, receipt of exhibits in
evidence, and instruction of the jury by the judge.” Owens, 497 A.2d at 1093
(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
16
instruction was not required because Bryant and Hagood were engaged in a single
continuous criminal act. While it is true that both incidents occurred at the same
apartment, involved the same parties, and took place within a relatively short
time—approximately ten minutes—of each other,19 these facts alone are not
determinative. See Scarborough, 552 A.2d at 873. It is significant that in this
case, when the trial is viewed as a whole, the jury was presented with evidence of
what the government referred to in closing as “two burglaries” and “two
shootings,” and that appellants played different roles in each incident.
The government‟s argument has a basis in the evidence presented. The sole
asserted trigger for the offenses was the hostile exchange between Hagood and
Edmonds outside the apartment building. The evidence supported that appellants
had a specific purpose to confront Edmonds. But a single purpose and a single
criminal action are not necessarily the same thing, and this is particularly so when
more than one perpetrator is involved.20 Here, the government witnesses testified
19
While the occupants‟ testimony varied as to the time between the first
incident and the second, the testimony of Sergeant Parson established that the first
call to 911 came in at 9:39 p.m. and the second call came approximately ten
minutes later. The second incident occurred while the occupants were on the
phone that second time, roughly at 9:49 p.m. This was also the time frame argued
to the jury by the government in closing.
20
The case before us is distinguishable from our recent decision in Guevara
in two important aspects. First, while evidence was presented in Guevara that
(continued . . .)
17
that although both appellants followed Edmonds as he backed into the apartment, it
was only Hagood who attempted to force his way into the apartment with the
revolver, but was kept out. Then, after appellants had been outside for about ten
minutes requesting to speak to Edmonds, they returned to the apartment, at which
point they encountered and opened an unlocked door. Hagood—unarmed this
time—walked into the apartment and toward Edmonds, while Bryant—this time
holding the revolver—remained at the door. During the first incident, Hagood
fired a shot through the door; during the second incident, Bryant fired a shot at the
ceiling of the hall outside the apartment.
From this evidence of two confrontations and the government‟s
characterization during closing arguments of appellants‟ actions as “two
burglaries” and “two shootings,” the jury could reasonably have perceived two
(. . . continued)
three different individuals threatened the victim at different points, the government
focused on a single threat in its closing argument. 77 A.3d at 422 n.19. Second,
the victim was continuously in the presence of his kidnappers throughout the entire
ordeal—there was no break in the kidnapping which the factfinder could
reasonably perceive to sever the events into distinct criminal acts—and thus we
characterized the incident as “a single course of criminal conduct.” Id. at 420.
Ultimately, however, the Guevara court concluded that “even assuming . . . that
[appellant] could show the trial judge committed an obvious error [in not sua
sponte delivering a special unanimity instruction], we would nevertheless affirm
her conviction because she has not established any prejudice to her substantial
rights.” Id. at 423.
 18
factually distinct burglaries and assaults. Some jurors could have found appellants
guilty based on the first incident and some jurors could have found them guilty
based on the second. For example, some jurors could have found that even if
Bryant did not attempt to enter the apartment during the first incident, he aided and
abetted Hagood by giving him the firearm, whereas other jurors could have found
Bryant guilty based on the second incident because he was holding the firearm
while standing at the door to the apartment, and then fired into the ceiling.21
The same is true for Hagood. Some jurors could have found Hagood guilty based
on his forceful attempt to enter the apartment with a gun, but it was also possible
that he could have been found guilty based on confronting Edmonds inside the
apartment while Bryant stood guard at the door.
In determining whether a special unanimity instruction was required, we
need only determine that it was possible, based on the evidence, for the jury to
reasonably perceive separate incidents and then base their convictions on different
21
That the jury could have convicted Bryant (or Hagood) on alternative
theories of liability as either a principal or as an aider and abettor would not
warrant a special unanimity instruction if there had been only a single incident.
See Hargrove, 55 A.3d at 857 (special unanimity instruction not required when
finding of guilt could be based on “alternate theories of criminal liability for a
single incident”). Our decision here is focused upon the possibility that two
distinct factual predicates could form the basis for conviction under either theory
of liability.
19
factual predicates. See Wynn, 48 A.3d at 192 (concluding that the jury “could”
have determined guilt based on different factual scenarios); Scarborough, 522
A.2d at 873 (noting that a special unanimity instruction is required “whenever
there is evidence tending to show” separate incidents). We find that is so on this
record. Accordingly, the failure to provide a special unanimity instruction sua
sponte was clear error. See Wynn, 48 A.3d at 193.22
22
Our cases that have found no clear error in failing to include a special
unanimity instruction have all concluded that the evidence and context of the trial
clearly showed the jury‟s verdict was based on either a singular factual predicate or
a continuous course of conduct with no significant breaks. See Guevara, 77 A.3d
at 422 (concluding that a special unanimity instruction was not required because
“there is no objective reason to believe the jury actually disagreed as to what
threatening behavior served as the basis for [appellant‟s] conviction” since the
facts showed that all three incidents of threatening “occurred in the course of
carrying out a single criminal scheme—the abduction” of the victim); Hargrove,
55 A.3d at 857-58 (determining there was no clear error where it is “anything but
obvious . . . that the jury was in disagreement over which of these acts had taken
place” and where “[i]t is likewise not obvious that [the single perpetrator‟s]
actions”—shooting the victim twice in a vehicle and then chasing after him firing
more shots—“all following quickly upon one another, met the factual predicate for
a special unanimity instruction.”); McKinnon v. United States, 644 A.2d 438, 441
n.6 (D.C. 1994) (“In closing argument, the government clearly articulated its
theory of the case by addressing the burglary charge only with reference to the
second entry. Under these circumstances, appellant can make no showing of plain
error.”); Simms, 634 A.2d at 446 (finding “no indication of jury confusion”
requiring a special unanimity instruction because only one incident was
encompassed in the indictment and the prosecutor focused on only that single
incident in his closing argument); Gray, 544 A.2d at 1258-59 (concluding that the
single perpetrator‟s actions—three acts of rape with “short spatial and temporal
separation”—showed “a continuous course of conduct” with “no significant break
between events”); Owens, 497 A.2d at 1094 (“The arguments of the prosecutor and
(continued . . .)
20
Even if the error is clear, to warrant reversal of their convictions on plain
error review appellants must also demonstrate that the error affected their
substantial rights and, further, that it “seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” Id. at 193-94 (alteration in original);
accord Olano, 507 U.S. at 732. If the context of the trial as a whole leads us to
conclude that the jury is likely to have reached a verdict based on the same
predicate facts, we cannot say that appellants‟ substantial rights were violated. See
Wynn, 48 A.3d at 193 (noting, on plain error review, that “the most natural
conclusion” was that the jury agreed on one instance of criminal conduct); cf.
Scarborough, 552 A.2d at 874-75 (concluding beyond a reasonable doubt, under
constitutional harmless error standard, that “no reasonable juror” could have
accepted one part of defendant‟s version of events while rejecting another). In that
(. . . continued)
defense counsel, taken together with the verdict form and the jury instructions,
made clear to the jury that the shooting related only to the charge of assault with
intent to kill while armed . . . . There was no rational way to conclude that the jury
may have based its verdict on count one . . . on the shooting, which occurred after
the first assault had ended.”). The government‟s primary reliance on Shivers v.
United States is misplaced because the Shivers court reasoned that the jury‟s
verdict on the weapons offense reflected unanimous agreement “as to at least one”
of the possible factual bases for assault. 533 A.2d 258, 262 (D.C. 1987). There is
no similar assurance in this case. Finally, the ultimate holding in Shivers was that
any error, if there was error, was not accompanied by “any aggravating element
that would cause us to find a „miscarriage of justice‟ occurred below.” Id at 263.
21
examination, we do not indulge in theorizing about what the jury could have
concluded that is so speculative or tortured that “no reasonable juror could have
reasoned that way based on the evidence introduced at trial.” Scarborough, 552
A.2d at 874 (“[W]e are not permitted to find reversible error when the only basis
for perceiving the jury‟s verdict was not unanimous would be that the jury acted
irrationally.”). Rather, we endeavor to determine whether the entire context of the
trial—the evidence introduced, the arguments of counsel, the instructions provided,
and the actions of the jury—created a genuine danger that jurors, though reaching a
unanimous verdict of guilt, came to their conclusion based on different factual
scenarios. See Shivers v. United States, 533 A.2d 258, 263 n.13 (D.C. 1987)
(noting that “federal courts consider a general unanimity instruction sufficient to
insure a unanimous verdict „except in cases where the complexity of the evidence
or other factors create a genuine danger of jury confusion‟” (quoting United States
v. Schiff, 801 F.2d 108, 114-15 (2d Cir. 1986)); Owens, 497 A.2d at 1094 (finding
harmless the failure to give a special unanimity instruction when there was “no
rational way” for jurors to have come to a verdict predicated on different sets of
fact).
Turning to appellants‟ trial, the jury was given a general unanimity
instruction. They understood the necessity of reaching a unanimous verdict, as
22
evidenced by their question whether an acquittal must also be unanimous. Where
the jury has been so instructed, the danger of a non-unanimous verdict is reduced;
we can rely on the “robust intuition and good common-sense of jurors . . . to apply
the standard unanimity charge to circumstances where special unanimity problems
lurk.” Shivers, 553 A.2d at 263 n.14; see also Youssef, 27 A.3d at 1209 (reasoning
that a general unanimity instruction can contribute to reducing the risk of a non-
unanimous verdict). But realistically, we recognize the limits of reliance on
general instructions and common sense in cases where “the complexity of the
evidence or other factors create a genuine danger of jury confusion.” Shivers, 553
A.2d at 263 n.13 (emphasis omitted). In general, there is little, if any, downside to
giving a special unanimity instruction, and where the evidence, arguments, or other
factors at trial provide any basis for instructing the jury of the requirement that it
must be unanimous concerning the factual predicate for its verdict, the trial court
would be well advised to give such an instruction.
Second, and significantly, in this case we are able to discern the factual
bases for the jury‟s verdicts from the verdicts themselves, without engaging in
speculation about the jury‟s thought process. Cf. Scarborough, 552 A.2d at 874
(discerning from the record the most likely and rational, and least speculative,
basis for the jury‟s verdict). The jury convicted Hagood of destruction of property
23
while acquitting Bryant of the same charge. During deliberations, the jury sent a
note asking if a guilty verdict could be predicated on damage to the door only, or
whether they could also consider the damage to the ceiling. The judge informed
the jury that only damage to the door was specified in the indictment and so they
could not consider damage to the ceiling for the destruction of property charge.
From the jury‟s verdict, we know that the jury found that Hagood shot through the
door during the first incident. It naturally follows that because the jury found
Hagood fired the gun on that first occasion, a properly instructed jury would also
have had to find Hagood culpable of ADW—it was uncontroverted that the bullet
went through the door and grazed Edmonds‟s ankle—as well as the weapons
offenses associated with the discharge of the firearm at that moment.
The natural conclusion from Bryant‟s acquittal on the destruction of
property charge is that the jury was not convinced beyond a reasonable doubt that
Bryant was culpable for the discharge of the revolver during the first incident.
Such doubt would have been reasonable as there was no evidence that Bryant had
the gun or was at the door at that time. However, the jury‟s note clearly indicates
that at least some jurors were considering Bryant‟s conduct in firing into the
ceiling during the second incident and, but for the judge‟s instruction, were
contemplating convicting him of destruction of property based upon that action.
24
The reasonable inference is that the jury found Bryant culpable for his actions
while he was armed during the second incident, and that these actions were the
more likely basis for the verdict finding Bryant guilty of ADW.23 Even though the
evidence sufficed to convict both appellants of ADW on either of the incidents, we
think it much more natural to conclude that the jury would find guilt based on the
incident in which each appellant acted as a principal in using the gun and not as an
aider and abettor of the other‟s use of the gun.24
23
While explaining the ADW charge, the trial court instructed the jury,
inter alia, that in order to convict either Bryant or Hagood the jury must find
beyond a reasonable doubt that the target of the assault was Edmonds, and that the
appellants either “injured or attempted to injure” him or “committed a threatening
act that reasonably would have put” Edmonds in fear of immediate injury. The
government‟s evidence demonstrated that appellants‟ intention throughout the
entirety of the events was to either injure or threaten Edmonds. By standing in the
doorway armed—as one witness said, “waving” the gun around and then shooting
it at the ceiling as soon as he was forced out—Bryant was acting in a manner
threatening to Edmonds (as well as to others present who were trying to protect
him) while Hagood entered the room to again confront Edmonds. This is the most
likely factual basis for the jury‟s verdict finding Bryant guilty of ADW given the
jury instruction focusing on Edmonds as the target of the attack and Bryant‟s active
participation at the scene during the second incident, whereas no testimony placed
him at the door during the first incident.
24
Bryant makes the argument that the evidence was insufficient to convict
him for aiding and abetting Hagood‟s armed assault or attempted burglary. Even
assuming arguendo that the jury convicted him not as a principal, but under an
aiding and abetting theory, the evidence adduced at trial, viewed in the light most
favorable to the jury‟s verdict and drawing all inferences the jury could reasonably
draw, is legally sufficient to support Bryant‟s conviction. See McCraney v. United
States, 983 A.2d 1041, 1056 (D.C. 2009). Bryant argues that even if he did give
the gun to Hagood when they first encountered Edmonds, there was no evidence
(continued . . .)
25
A similar logic applies to the likely factual bases for the guilty verdicts for
attempted burglary while armed. The jury was given explicit instructions on the
order in which they should consider the burglary charges. They were to consider
initially “first degree burglary while armed,” then “attempted first degree burglary
while armed,” then “first degree burglary unarmed,” then “attempted first degree
burglary unarmed,” and finally “unlawful entry.” The jury was told to consider
these offenses in the order prescribed and to not go on to the other charges once
they had reached an agreement on a charge. From the jury verdicts finding both
appellants guilty of attempted burglary while armed we can conclude the jury
found that each appellant was armed, but did not complete the burglary.
As we have discussed above, the natural conclusion for the jury based upon
the evidence presented was to find Hagood culpable of ADW based on the first
incident, and Bryant culpable of ADW based on the second incident. Consistent
(. . . continued)
that Bryant knew Hagood would use it while attempting to break into the
apartment. Even so, Bryant‟s continued participation after Hagood shot the gun by
returning, armed, to the apartment a second time permits a reasonable inference
that Bryant intended to assist Hagood in his actions on both occasions. In any
event, as we discuss, the jury‟s most likely basis for finding Bryant guilty was not
on an aiding and abetting theory, but as a principal during the second incident.
Bryant does not contest the sufficiency of the evidence supporting his conviction
as a principal.
26
with these findings, it would have been reasonable and natural for the jury to also
find that on each of those occasions the armed appellant attempted, but did not
successfully complete, the crime of burglary. In the first incident, Hagood
succeeded only in getting his head, arm, and gun inside the door before he was
pushed out.25 If the jury found Hagood had possession of the gun and had
attempted—but failed—to gain entry into the apartment at that moment, the jury
would naturally and reasonably use those facts as the predicate for finding Hagood
guilty of attempted burglary while armed.
In the second incident, the testimony raised doubts as to whether Bryant
actually entered the apartment, but not about whether he was armed. Lawana
Mays testified that Bryant never completely made it into the apartment. She said
Bryant was coming towards the interior of the apartment from the hallway with a
gun that he later shot into the hallway ceiling outside the apartment, but that he
was pushed out before he could enter the apartment. Edmonds, on the other hand,
testified that Bryant was just inside the apartment, with his back against the door.
The inconsistent accounts could well have left the jury uncertain (or at odds) as to
whether Bryant entered the apartment. It was thus natural and reasonable that the
25
No witness testified that Bryant was also trying to get into the apartment
or was seen at the door during the first incident.
27
jury found Bryant was armed in the second instance and had attempted—but
failed—to enter the apartment.26
Based on the jury note inquiring about the factual basis for the destruction of
property charge, the acquittal of Bryant for destruction of property premised on the
shot through the door, and the evidence presented to the jury with respect to each
appellants‟ actions in the first and second incidents, the most logical and natural
factual predicate for the jury‟s guilty verdicts on the ADW and burglary charges
for Hagood was the first incident, and, for Bryant, the second incident. Under the
circumstances, the danger that the jury verdicts might have been based on
different, non-unanimous factual predicates is lessened. See Wynn, 48 A.3d at 193
(noting it was “doubtful” that substantial rights were affected).27
26
The witnesses testified that Hagood, on the other hand, completely
entered the apartment, but he was unarmed. This supports the inference that the
jury actually found Hagood guilty based on the first incident because they were
instructed to consider attempted armed burglary before completed unarmed
burglary.
27
In Wynn, the jury was presented with evidence that MPD officers,
responding to the sound of gunfire, found a victim lying mortally shot in the street.
48 A.3d at 183. The police recovered a 9-mm Glock pistol from the scene. Id. at
183-84. The jury heard testimony that a second gun was hidden in a home nearby
and never recovered. Id. at 184. Finally, the jury heard that police recovered a
third weapon, a .45 caliber handgun, from the inside of appellant‟s girlfriend‟s car,
parked near the scene of the shooting. Id. at 184. We concluded that failure to sua
sponte deliver a special unanimity instruction on appellant‟s CPWL charge was
(continued . . .)
28
Even if appellants‟ substantial rights were affected, we would not exercise
our discretion to reverse in this case because they cannot show that the “lack of a
special unanimity instruction seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 194 (alteration in original). Where the
jury was presented “ample” evidence to support all of the possible bases for a
verdict, an appellant cannot carry his burden on this prong of plain error analysis.
See id.; Yousseff, 27 A.3d at 1208-09 (“Appellant cannot meet this standard given
the exhaustive evidence presented at trial supporting each incident . . . .”). In this
case, the jury obviously rejected the defense‟s theory that the government‟s entire
case should be disbelieved because it rested on the complainants‟ fabricated
testimony. Even though their accounts were not entirely consistent, the same
witnesses testified as to both incidents. Having chosen to credit the government
witnesses, the jury had more than sufficient evidence to find Hagood and Bryant
guilty for their actions during both the first and second incidents. While the right
to a unanimous jury verdict is fundamental, we are satisfied that the error here was
(. . . continued)
obvious error. Id. at 193. However, we were “doubtful” appellant‟s substantial
rights were affected. Id. “Although there was evidence regarding three instances
of carrying a pistol, the most natural conclusion [was] that the jury convicted Mr.
Wynn for carrying the .45 caliber handgun” because appellant admitted to owning
the weapon and the parties focused on that specific weapon in closing argument.
Id.
29
not so “particularly egregious” as to require reversal, Wheeler, 930 A.2d at 248,
and that the particular circumstances of this case do not pose the type of
“exceptional circumstances where a miscarriage of justice will result if we do not
reverse.” Wynn, 48 A.3d at 194.28
III.
With this understanding of the most likely factual underpinnings of the
verdicts, we now address appellants‟ other joint contention on appeal, namely, that
their PFCV convictions should merge. Bryant and Hagood were each convicted of
two counts of PFCV, one predicated on the attempted burglary charge and one
predicated on the ADW charge. Appellants‟ arguments boil down to the assertion
that their two respective PFCV convictions are predicated on the same single
possession of a single weapon during a single crime of violence and must therefore
28
Bryant makes a related argument that he is entitled to relief because his
counsel‟s failure to request a special unanimity instruction prejudiced him and
therefore constituted constitutionally ineffective assistance of counsel. If we were
to address this claim on direct appeal, our review would be limited to the record on
appeal. We decline to do so in this case as appellant has notified the court that he
has filed a motion to vacate the judgment pursuant to D.C. Code § 23-110 (2012
Repl.) based on this very asserted deficiency of counsel. That action is pending
before the trial court and will be subject to appeal to this court upon a more fully
developed record of the pertinent issues. “This court is in the best position to
assess a claim of ineffective assistance of counsel where a separate motion has
been filed and an appropriate record has been made.” Mack v. United States, 570
A.2d 777, 785 (D.C. 1990).
30
merge. We review claims of merger de novo. See Hampleton v. United States,
10 A.3d 137, 146 (D.C. 2010).
The general rule is that when the predicate offenses do not merge, separate
PFCV convictions founded upon those offenses do not merge either. See Matthews
v. United States, 892 A.2d 1100, 1106 (D.C. 2006) (citing Stevenson v. United
States, 760 A.2d 1034, 1035 (D.C. 2000)). The predicate offenses here, attempted
burglary while armed and ADW, do not merge. See Hanna v. United States, 666
A.2d 845, 856 (D.C. 1995). However, we have fashioned a limited exception to
this rule where multiple PFCV convictions “arise out of a defendant‟s
uninterrupted possession of a single weapon during a single act of violence.”
Matthews, 892 A.2d at 1106 (citing Nixon v. United States, 730 A.2d 145, 153
(D.C. 1999)). As with other Fifth Amendment double jeopardy claims, to
determine whether the defendant‟s conduct was a single act or distinct acts we
employ the “fresh impulse” or “fork-in-the-road” test. Stevenson, 760 A.2d at
1037. “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 his successive intentions make him subject to cumulative
punishment. . . .” Id. (quoting Spain v. United States, 665 A.2d 658, 660 (D.C.
1995)).
31
The government urges us to apply this rule only where the criminal offenses
were “wholly or nearly simultaneous.” However, Nixon and its progeny do not
lend themselves to such a restricted reading of the exception. Discussing Nixon in
Matthews, we noted that predicate offenses need “not necessarily [be] completed at
exactly the same time.” 892 A.2d at 1107. Instead, we must look at whether the
criminal transaction was a “continuous whole” such that the predicate crimes
“overlapped substantially and were not independent of each other.” Id. In other
words, to determine that two PFCV convictions merge it may be sufficient that the
predicate offenses happened simultaneously, but simultaneity is not necessary so
long as the predicate offenses were common to a single violent act and overlapped
substantially. The exact time-frame is less important than whether the defendant
had an opportunity during that time to reflect on whether to abandon his criminal
enterprise, but nevertheless chose to invade a new and distinct interest while armed
with the same weapon.
Applying these principles to the facts of this case, we conclude that each
appellant‟s two PFCV convictions merge. As we have discussed, Hagood‟s two
PFCV convictions were most likely premised on the burglary and ADW which
occurred during the first incident. Thus, Hagood‟s PFCV conviction for attempted
burglary is associated with his attempt to enter the apartment, which was resisted
32
by the occupants who forced him out. This was immediately followed, seconds
later, by Hagood firing the handgun through the door—the predicate offense
(ADW) for his other PFCV conviction. These events unfolded in rapid succession
as Hagood was following Edmonds with the gun. During this time Hagood would
not have had the time to pause to reassess his situation before firing the gun in
reaction to having the door closed on him. Our cases indicate that something more
than a momentary interruption is required to sever the singular continuous
possession of a weapon into distinct, separately punishable criminal actions.
Compare, e.g., Stevenson, 760 A.2d at 1037-38 (holding PFCV convictions
predicated on armed robbery and burglary charges did not merge where two armed
men entered a store, spoke to the clerks, and browsed the merchandise, providing
“time to reflect” whether to continue to rob the store), with Matthews, 892 A.2d at
1107 (holding PFCV convictions based on armed carjacking and armed robbery
merged where, in the course of an armed carjacking the defendant decided to keep
the purse of the victim, because both predicate offenses “began at the same time
and were committed together by means of the same act of violence involving the
same weapon”).
Likewise, Bryant‟s two PFCV convictions, predicated on ADW and
attempted burglary during the second incident, merge. As we have discussed, the
33
most likely factual basis is that Bryant stood at the threshold of the apartment with
the gun in his hand while Hagood entered to confront Edmonds, but Bryant was
quickly pushed out of the apartment, prompting the shot into the hallway ceiling
outside. There was no appreciable point at which Bryant could have reconsidered
his actions and yet chosen to inflict a new, distinct harm—it was all part of
providing armed support for Hagood.
Having concluded that appellants‟ PFCV convictions merge, we remand the
case for the trial court to vacate one PFCV conviction for each appellant and to
allow the trial court, in its discretion, to resentence appellants accordingly. See
Kitt v. United States, 904 A.2d 348, 358 (D.C. 2006).29
29
Bryant was sentenced for attempted armed burglary to 90 months‟
incarceration and 5 years of supervised release; for the associated PFCV to 90
months‟ incarceration and 3 years of supervised release. He was sentenced for
ADW to 60 months‟ incarceration and 3 years of supervised release; for the
associated PFCV to 60 months‟ incarceration and 3 years of supervised release.
The sentences for attempted armed burglary and its PFCV run concurrently to each
other and consecutively to the ADW and its PFCV, which run concurrently to each
other. Sentences for Bryant‟s convictions for carrying a pistol without a license
and unlawful possession of a firearm run concurrently to all other counts. Merger
of either of Bryant‟s PFCV convictions would make no difference to his total time
of incarceration and supervised released because the predicate offenses carry the
same sentence as each associated PFCV.
Hagood‟s situation is different. Hagood was sentenced for attempted armed
burglary to 100 months‟ incarceration and 5 years of supervised release; for the
associated PFCV to 100 months‟ incarceration and 5 years of supervised release.
(continued . . .)
34
IV.
We now turn to the balance of Bryant‟s arguments on appeal.
A. Judge’s Questioning of Witnesses
Bryant contends that the trial judge impermissibly asked questions of the
witnesses. As appellant raised no objection before the trial court, we review this
claim for plain error. See Jennings v. United States, 989 A.2d 1106, 1114-15 (D.C.
2010).
Bryant complains of three instances in which the judge asked government
witnesses to clarify whether they were testifying that Bryant had come inside the
(. . . continued)
He was sentenced for ADW to 72 months‟ incarceration and 3 years of supervised
release; for the associated PFCV to 100 months‟ incarceration and 3 years of
supervised release. The sentences for attempted armed burglary and its associated
PFCV are concurrent, but run consecutive to all other counts—ADW, PFCV,
destruction of property, unlawful possession of a firearm, and carrying a pistol
without a license—which run concurrently to each other. Because Hagood‟s ADW
sentence is less than the sentence he received for the associated PFCV, should that
PFCV be vacated, Hagood‟s total time of incarceration would be less than what the
trial court originally ordered. The court may choose to vacate the PFCV associated
with Hagood‟s attempted armed burglary as that would preserve the total time of
incarceration and supervised release originally ordered. “That, however, is a
matter for the trial court to decide in the exercise of its sentencing discretion.”
Kitt, 904 A.2d at 358.
35
apartment, an element of burglary. First, on direct examination, Bostic testified
that Bryant was “on the ledge” of the door to the apartment. The prosecutor asked
her to place a marker on an exhibit to indicate where Bryant was standing. After
Bostic placed the maker on the photograph, the judge asked Bostic if Bryant “was
inside the apartment or outside the apartment.” Bostic replied, “He was kind of
just like standing right there, he wasn‟t all the way inside, he was just standing like
on the ledge. Kind of like halfway in, but he wasn‟t all the way in.” Second, after
Edmonds testified that Bryant “was holding the door like this” the judge asked
Edmonds, “Holding the door like what?” Edmonds stated, “Like this, with his
back against the door.” The judge clarified, “So, he was inside the apartment with
his back against the door?” Edmonds answered affirmatively. Third, in attempting
to demonstrate in court where Bryant was in relation to the threshold of the
apartment, the prosecutor asked Lawana Mays to tell him when he was in the same
relationship to a line on the courtroom floor as Bryant was to the apartment‟s
threshold. In attempting to make a record, the following exchange occurred:
The Court: The record should reflect that the prosecutor‟s
standing outside the line.
The Prosecutor: Outside the line?
The Witness: About like this.
The Court: Okay. He‟s got his toe on the line.
36
The Prosecutor: All right.
The Court: But did he come into the apartment?
The Witness: He didn‟t actually make it completely in but he
was close enough where we had to push him out.
A judge is permitted to ask questions of witnesses so long as she does not
assume a partisan role. See Jennings, 989 A.2d at 1115. The judge may
“permissibly illuminate the witness‟s testimony” so long as the questions asked “in
no way jeopardized the appellant‟s presumption of innocence . . . or improperly
suggested to the prosecutor tactics he had not considered.” Johnson v. United
States, 613 A.2d 888, 895-96 (D.C. 1992) (citations omitted). In each instance of
which Bryant complains, the trial judge was clarifying for the record
demonstrations or actions performed in court pursuant to inquiries the prosecutor
had initiated. The judge did not exceed the proper bounds of the judicial role. In
any event, Bryant cannot demonstrate prejudice because he was convicted of
attempted armed burglary instead of the completed crime. The clarification of the
witnesses‟ testimony on whether or not he fully entered the apartment was either to
his advantage or did not prejudice him.
37
B. Self-Defense Instruction
Bryant contends that the trial judge erred by not sua sponte instructing the
jury on self-defense. His claim of self-defense is premised on the fact that Bryant
fired the gun at the ceiling only after Marshall and Mays “attacked” him, showing
that he “did nothing to precipitate the attack, and that the government witnesses
were the first aggressors.”30
A defendant is “entitled to a self-defense instruction if the evidence, either
that of the defense or prosecution, fairly raises the issue.” Hernandez v. United
States, 853 A.2d 202, 205 (D.C. 2004) (quoting Guillard v. United States, 596
A.2d 60, 63 (D.C. 1991)). Conversely, a defendant is not entitled to a self-defense
instruction if he “deliberately places himself in a position where he has reason to
believe his presence would . . . provoke trouble.” Howard v. United States, 656
A.2d 1106, 1111 (D.C. 1995) (internal quotation marks and alterations omitted)
(quoting Mitchell v. United States, 399 A.2d 866, 869 (D.C. 1979)). Bryant‟s
return to the apartment with a gun in his hand on the second occasion, after it was
clear the occupants would object, precipitated the physical confrontation. As such,
30
Bryant‟s argument assumes that the jury found him guilty only of
shooting at the ceiling, but we note that the evidence sufficed to find him guilty of
ADW and attempted burglary before he fired the gun.
38
he was not entitled to a self-defense instruction.31 See id. (“[T]he degree of
initiative appellants had taken in creating the confrontation precluded a claim of
self-defense.”).
C. Carrying a Pistol Without a License
Bryant asserts that his convictions for unlawful possession of a firearm and
CPWL merge. We have recently addressed a similar contention and held that these
are “separate and distinct” offenses. Snell v. United States, 68 A.3d 689, 694 (D.C.
2013). As such, a defendant may be convicted and sentenced for both offenses and
the sentences may run consecutively. Id. Bryant also claims that because the
District of Columbia no longer licenses firearms, the prohibition against carrying a
pistol without a license is constitutionally infirm. We addressed this question
head-on in Snell and concluded the statute was valid and enforceable, id. at 691-93,
31
Bryant makes a related argument that he did not have effective assistance
of counsel because his lawyer did not request a self-defense instruction. “Since the
evidence at trial did not support giving this instruction, counsel‟s failure to ask for
it did not represent deficient performance” and we therefore find no merit to
Bryant‟s contention that his counsel was constitutionally deficient. Washington v.
United States, 689 A.2d 568, 573 (D.C. 1997).
39
a decision we are not at liberty to revisit here. See M.A.P. v. Ryan, 285 A.2d 310,
312 (D.C. 1971).32
* * *
For the foregoing reasons, we remand for the trial court to merge appellants‟
PFCV convictions and to resentence appellants as the court, in its discretion, may
find appropriate. In all other respects, the convictions are affirmed.
So ordered.
32
Because we conclude that there was no trial court error or prejudice
resulting from error, we reject Bryant‟s claim that the collective impact of trial
court error requires reversal.