GLICKMAN, Associate Judge:
Appellants Shanika Robinson and Leon Robinson were convicted of a number of offenses committed in connection with the armed robbery and murder of Shahabuddin Rana on August 18, 2009.
Ms. Robinson does not challenge her other convictions, which are not affected by the error, and which we therefore affirm. We also affirm Leon Robinson's convictions, as none of them are affected by the erroneous instruction on aiding and abetting liability and his claims of other error are not meritorious.
According to the evidence presented by the government, Shahabuddin Rana, the decedent, owned and operated a convenience store called Pizza Mart in Northeast Washington, D.C. He was assisted in running the store by his brother Allauddin Rana, who had come to this country from Pakistan in 2006. To enable his brother to remain in the United States after his initial visa expired, Shahabuddin arranged a sham marriage between Allauddin and appellant Shanika Robinson in October 2008. Shahabuddin agreed to pay Shanika $500 a week for her continuing cooperation in the sham.
In the summer of 2009, however, the imposture began to unravel. Shanika Robinson had a miscarriage, and Allauddin, angered that she had been carrying another man's child, asked his brother for help in obtaining a divorce. Shahabuddin told Shanika the sham marriage arrangement was over and stopped paying her. Allauddin testified at trial that Shanika pressed for a resumption of the weekly payments. On July 22, 2009, she and Allauddin attended an interview with the Immigration and Naturalization Service in furtherance of Allauddin's application to become a permanent resident. The interview did not go well and Shahabuddin's payments to Shanika did not resume. Nonetheless, Shanika continued to urge the Ranas to restart the payments. They refused.
How Shanika reacted to Shahabuddin's cessation of payments was a central point of contention at trial. The government's main witness was Isaiah Genus, a man with whom Shanika had maintained an intimate relationship while she was married to Allauddin. Genus testified pursuant to a cooperation agreement that allowed him to plead guilty to conspiracy and second-degree murder for his complicity in Shahabuddin's murder.
Genus testified that Shanika was distressed by Shahabuddin's cessation of payments because she needed the Ranas' money to pay her rent and was afraid she and the family members who lived with her would be evicted. According to Genus, Shanika "came up with the scheme" to "get the money" by robbing Shahabuddin with the help of Genus and her brother, appellant Leon Robinson. The three discussed this plan in Shanika's kitchen. Shanika stated that they "need[ed] to get a gun."
A few weeks after this discussion, on Saturday, August 15, 2009 (three days before the date on which Shahabuddin was murdered), Shanika told Genus, "[w]e need to get the money." Genus said he had not gotten a gun. Nonetheless, Shanika took a car belonging to the father of Shanika's landlord ("Cap"), picked up Leon, and drove him and Genus to the vicinity of the Pizza Mart. As they approached the store, Leon displayed a kitchen knife and asked Genus if he had "ever use[d] one of these before." Nothing happened on this expedition, however. Upon seeing people outside
Early on Tuesday morning, Genus testified, they embarked again: Shanika drove him and Leon to the Pizza Mart in Cap's car. Genus testified that he was not armed and that he did not know Leon was carrying a weapon. On the way, Shanika gave the men latex gloves to wear so that they would not leave fingerprints. Shanika went to the door of the store and induced Shahabuddin to open it for her. When he did, Leon and Genus emerged suddenly from behind Shanika and barged in. According to Genus, Shanika entered the Pizza Mart last and closed the door behind her. Immediately upon entering, Leon started stabbing Shahabuddin with a knife he had brought. (Genus said that this was not the same knife as the one Leon had displayed three days earlier.) Genus and Leon pulled Shahabuddin into a storage room in the back of the Pizza Mart to prevent him from escaping. Once the three men reached the back room, Shahabuddin tried to wrest the knife from Leon's hand. Leon lost control of the weapon and it fell to the floor. He then grabbed a hammer that happened to be lying within reach and struck Shahabuddin in the head with it, repeatedly. Meanwhile, Genus, who had joined in the attack by punching and kicking Shahabuddin, picked up the knife and began stabbing him with it.
Genus's description of this murder was corroborated by the subsequent autopsy; the medical examiner found that Shahabuddin had been stabbed twelve times and had suffered multiple blunt force injuries. The cause of death was determined to be stab wounds to Shahabuddin's torso and blunt force trauma to his head. The medical examiner also reported that Shahabuddin's body was severely burned. Genus explained at trial that Shanika entered the storage room after the attack was over and helped him and Leon set fire to the body.
Before they fled the Pizza Mart (taking, Genus said, "all of the evidence with them"), Shanika took cigarettes, cigars, bleach, peroxide, and cash from the store. These same items were found to be missing when the murder was discovered, according to Allauddin.
Returning to Shanika's house, appellants and Genus burned their bloody clothing on a backyard grill and cleaned the hammer and knife used in the attack with the peroxide and bleach stolen from the Pizza Mart. They then disposed of the weapons by throwing them in a dumpster. Shanika told Genus she had cleaned the car with bleach to remove any blood stains; however, after the police seized the vehicle a few weeks later, they found what proved to be traces of Shahabuddin's blood inside.
Although Genus was the only prosecution witness who could provide a first-hand account of Shahabuddin's murder, his narrative was corroborated by Charlene Taylor, appellants' cousin, who was living with Shanika at the time. Ten days after the murder, Taylor met with a detective and, in a taped interview, implicated the three in the murder.
Both Shanika and Leon took the stand and testified at trial. Shanika acknowledged the fake marriage and her financial agreement with the Ranas, and said Shahabuddin ceased paying her after the immigration interview because the brothers were displeased by how it went.
Shanika testified that she went to the Pizza Mart the day before the murder to speak with Shahabuddin. After their meeting, she felt "he was going to start back paying [her]." Nonetheless, when she told Genus about it, he suggested she "take a guy with [her] to the Pizza Mart," since Shahabuddin "d[id]n't listen to [her] because [she's] a woman." Shanika thought this "wasn't a bad idea."
On the night of the murder, according to Shanika, Genus suggested they go to the Pizza Mart to "get the money" and that she should take two men along. Shanika did not want Genus to come with her "[b]ecause he was drunk, and he has a temper," but she could not dissuade him. So, according to Shanika, she drove Genus and Leon to the Pizza Mart. Shanika believed they were "just going there to talk to" Shahabuddin. She testified that she did not have any weapons and that "to her knowledge" neither did Leon or Genus.
Shanika denied participating in Shahabuddin's murder or in the robbery of his store. She testified that when she, Leon, and Genus arrived at the Pizza Mart, all three approached the service window and she asked Shahabuddin for her identification papers and money. Shahabuddin asked her if she "brought security," and at that point Genus and Leon intervened and started "cuss[ing] him out." A loud and angry argument among the men ensued, in the course of which Shahabuddin came to the door and opened it. As the "yelling and screaming" continued, Shanika "became
In his testimony, Leon denied having been at the Pizza Mart when Shahabuddin was murdered or during the abandoned robbery attempt three days earlier. He likewise denied having participated in disposing of evidence. Leon claimed he did not know Shanika's marriage to Allauddin was a sham, was never told the Ranas owed Shanika money, and was never asked to help Shanika rob Shahabuddin.
In its final charge to the jury, the trial court instructed, inter alia, on the mens rea required for aiding and abetting liability. In general terms it told the jury that to find a defendant guilty of a crime as an aider and abettor, it would have to find that the defendant "knowingly associated him or herself in the commission of the crime, that he participated in the crime as something that he or she wished to bring about and that he or she intended by his actions to make it succeed."
The day after the jury began its deliberations, it sent a note asking the following questions:
The parties agreed on the answer to the first question — a defendant did not need to enter the Pizza Mart to be found guilty of burglary as an aider and abettor — and the trial court so instructed the jury. However, the parties disagreed as to how to answer the second and third questions. Appellants argued that under this court's
Within an hour after the jury was so instructed, it sent the court another note, asking:
In response, the judge instructed the jury as follows:
Twenty minutes after receiving this answer, the jury returned its verdict. It found Leon Robinson guilty on all counts. It found Shanika Robinson not guilty of first-degree premeditated murder while armed and not guilty of felony murder with armed burglary as the predicate felony, but guilty of all the other charges, including the lesser-included offense of second-degree murder while armed.
Shanika Robinson claims the trial court erred by instructing the jury, in response to its inquiry, that an aider and abettor may be found guilty of second-degree burglary while armed if she merely had "reason to know" the principal offender was armed. The government now concedes this instruction was erroneous. For the reasons that follow, we agree, and we conclude that Shanika's convictions for the four armed offenses — armed robbery, armed second-degree burglary, armed second-degree
Leon Robinson's primary claim on appeal is that the trial court erred by refusing to grant his motion to sever his trial from that of his co-defendant, because he and Shanika presented irreconcilable defenses. We conclude that the court did not abuse its discretion by denying severance, and that Leon's other claims are meritless. Accordingly, we affirm his convictions (subject to the merger of certain counts, which should be effectuated on remand).
D.C.Code § 22-4502(a) permits the imposition of enhanced punishment on defendants convicted of having committed a crime of violence or a dangerous crime "when armed with or having readily available" a firearm or other dangerous or deadly weapon. The term "armed with" means having "actual physical possession" of the weapon in question,
If the principal offender must know he is armed when he is committing a violent or dangerous crime in order to be subject to the "while armed" enhancement of § 22-4502, then the aider and abettor (if unarmed herself, like Shanika Robinson in this case) also must know the principal is armed for the enhancement to be applicable to her as well. This is so for two reasons. First, and most basically, to be guilty of a crime — here an offense committed while armed — as an aider and abettor, a person must, inter alia, intend to facilitate the entire offense, not some lesser offense.
For these reasons, we conclude that the enhanced penalty provisions of D.C.Code § 22-4502 may not be applied to an aider and abettor who only had "reason to know" the principal offender was "armed with" a dangerous weapon during the commission of a violent or dangerous crime. Actual knowledge of the weapon is required for either the principal offender (which is seldom an issue) or the aider and abettor to be subject to § 22-4502. Any jury instruction on the "while armed" element must be consistent with that requirement.
The government argues that the instructional error was harmless as to all of Shanika's convictions other than the one for the charge to which the jury's inquiries and the court's responses specifically related, second-degree burglary while armed. This is so, the government contends, because even if Shanika did not know at the time her co-conspirators entered the Pizza Mart that they were armed, the evidence was overwhelming that she herself entered the Pizza Mart and was "present, participating, and aware of the presence of weapons" when the armed robbery and murder were committed. Shanika Robinson disagrees. She argues that the instructional error compromised the jury's verdict finding her guilty of all the "while armed" offenses — not only second-degree burglary while armed, but also the charges of armed robbery, felony murder while armed with the predicate felony of armed robbery, and second-degree murder while armed. For as the jury was instructed, even if it believed that Shanika did not know Genus or Leon was armed, the "while armed" element of each of the offenses was satisfied if she merely had reason to know it.
We think Shanika Robinson has the better of this argument. There is no question that the government presented sufficient evidence to permit the jury under proper instructions to find her guilty as an aider and abettor of each "while armed" crime charged in the indictment. But the erroneous instruction allowed the jury to convict her of aiding and abetting those offenses without finding she had the necessary mens rea to do so. Such an error is of constitutional magnitude, meaning we must vacate the convictions in question unless we are persuaded the error was harmless beyond a reasonable doubt.
Judging by the jury's verdict and the questions it asked the court during its deliberations, we think it is reasonably possible the jury found Shanika guilty of each "while armed" offense as an aider and abettor without finding she knew her confederates were armed. Shanika, it will be recalled, denied intending to kill Shahabuddin or knowing that her confederates were going to do so, and she denied knowing they were armed. Moreover, she claimed that she did not enter the Pizza Mart while Genus and Leon were inside it committing the murder and robbery. Instead, she testified, she left them after they went inside and waited for them back at the car. Despite Genus's testimony to the contrary, there is reason to believe the jury credited Shanika on these points.
First, the jury acquitted her of the two charges that required it to find she
Second, the jury's final note to the court before it returned its verdict (asking when during the commission of an armed burglary an aider and abettor needs to know or have reason to know that the principal is armed, and whether knowing or having reason to know after the entry is sufficient) indicates that the jury credited Shanika's testimony that she did not know Genus or Leon was armed as of the time the men entered the Pizza Mart.
Third, we have no sound basis to conclude the jury must have found that Shanika knew even by the time of the murder and/or the robbery inside the Pizza Mart that Genus and Leon were armed. We cannot infer from the inquiry in its note that the jury found Shanika learned the men were armed after they entered the Pizza Mart, because the jury was careful to ask whether "knowing or having a reason to know" that fact following the entry would suffice. To be sure, if the jury found that Shanika followed Genus and Leon into the store, then we might be confident it also found she knew then that the men were armed. But Shanika denied that she entered the Pizza Mart at any time on the morning of Shahabuddin's murder, and nothing in the jury's verdict shows that it disbelieved her.
In sum, the jury could have found that Shanika drove Genus and Leon to the Pizza Mart only to rob and burglarize it, that she waited for her accomplices in the car after they gained entry, and that she did not enter the Pizza Mart herself at any time during this trip. And the jury could have found that Shanika did not know Genus and Leon were armed until sometime after the robbery and murder were
Because it is reasonably possible the instructional error caused the jury to misunderstand and misapply the law in finding Shanika Robinson guilty on the "while armed" counts, we cannot find the error harmless with respect to any of them.
It does not necessarily follow that Shanika Robinson is entitled to a new trial on each "while armed" count. While retrial on those counts is certainly an available option, there may be a more tailored alternative: allowing the trial court to enter judgments of conviction, with the consent of the government, for the lesser-included, "unarmed" offenses. This alternative is open to consideration so long as the instructional error did not affect the jury's determination of Shanika's guilt on a given count other than with respect to the "while armed" element of the offense. Because the parties did not address the availability of this option in their briefs prior to oral argument, we requested and have received supplemental post-argument briefing on the question.
The government argues that it would be appropriate to allow the trial court on remand to enter judgment on four unarmed offenses — first-degree felony murder with the predicate of simple robbery, second-degree murder, robbery, and second-degree burglary. Shanika disagrees, however, and urges us to reject that option in this case because the jury was not asked to consider any lesser-included unarmed offenses and because the government, before it responded to our request for supplemental briefing, did not ask this court for any disposition other than outright affirmance of her convictions. In addition to those objections, Shanika argues it would be improper to enter a judgment of conviction against her for either unarmed murder offense, because the instructional error also tainted the jury's findings supporting that offense, or because the jury did not even find all the elements of the "lesser included" offense.
It is well-established that this court "may direct [or allow] the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense."
Moreover, we have never held that this option is foreclosed if the jury was not instructed on the lesser-included offense.
Accordingly, with respect to each of Shanika Robinson's four convictions for a "while armed" offense, we may proceed to consider whether the government should have the option on remand of accepting the entry of judgment for a lesser-included unarmed offense. Because the Chapman standard of harmlessness applies, the government bears the burden of persuading us there is no reasonable possibility that the instructional error affected the jury's finding of all the elements of the lesser-included offenses, and that appellant would not be unfairly prejudiced by entry of judgment thereon.
That is the conclusion we readily reach in considering Shanika's convictions for armed robbery and second-degree burglary while armed. In finding Shanika guilty of those greater offenses, there is no question the jury necessarily and actually found, and could find, all the elements of the lesser crimes of (unarmed) robbery and second-degree burglary beyond a reasonable doubt.
We are unable to say the same about the two murder counts on which Shanika was convicted. Indeed, Shanika cogently argues that there is a reasonable possibility she would have been acquitted altogether of the homicide charges had the court properly instructed the jury on the mens rea for aiding and abetting a "while armed" offense. The government's arguments to the contrary — which rest primarily on its contention that no rational jury could have failed to find Shanika knew Leon and Genus were armed — are not responsive to the evidence adduced at trial or to the jury's questions during deliberations, and are therefore not sufficient to meet the government's "high burden" of demonstrating harmlessness.
Shanika's conviction for second-degree murder likewise could have been affected by the erroneous instruction that a defendant is liable for her accomplices' use of a weapon if she merely had reason to know they were armed. For as she points out, the jury was permitted to infer from the use of a weapon that a defendant had the heightened mens rea required for second-degree murder.
Accordingly, we reverse Shanika Robinson's convictions for each of the four "while armed" offenses and remand for a new trial on those counts of the indictment. However, in lieu of retrial on the armed robbery and armed second-degree burglary counts, the trial court may, with the consent of the government, enter judgments of conviction against Shanika on the lesser-included offenses of unarmed robbery and unarmed second-degree burglary.
Leon Robinson's main claim on appeal is that the trial court abused its discretion in denying his mid-trial motion for severance because he and Shanika were presenting irreconcilable defenses. We have said that to demonstrate an abuse of discretion in such a denial of severance, an appellant "must show not simply prejudice, but that [he or she] suffered manifest prejudice from the joinder."
It is true that the defenses presented by Leon and Shanika were incompatible: Leon denied being present at the scene of the robbery and murder, while Shanika put him there and implicated him as one of the two assailants (though she did not actually testify that he committed the murder). However, "[i]t is well-settled that mutually antagonistic defenses are not prejudicial per se, and the mere fact that co-defendants' defenses are separate, distinct and antagonistic and that each may have a better chance at acquittal if tried separately is not sufficient for a grant of severance."
For the foregoing reasons, we reverse Shanika Robinson's convictions on four counts of the indictment for armed robbery, armed second-degree burglary, felony murder while armed with the predicate felony of armed robbery, and second-degree
So ordered.
Zafiro, 506 U.S. at 540, 113 S.Ct. 933.
Second, Leon contends the jury's finding that the murder was especially heinous, atrocious, or cruel, must be vacated because the jury was not instructed that it had to find that statutory aggravating circumstance beyond a reasonable doubt. However, recognizing that error, the trial court did not rely on the finding to enhance Leon's punishment, but instead sentenced him on the first-degree murder count to a term of imprisonment of 45 years, which is below the statutory maximum for that offense without a finding of aggravating circumstances. See D.C.Code §§ 22-2104; 24-403.01(b-2)(1)(B) (2012 Repl.) (authorizing maximum sentence of 60 years' incarceration for murder in the first degree absent a finding of aggravating circumstances). Thus, Leon was not prejudiced by the error. On remand, the court should simply vacate the jury's aggravating circumstance finding so that it cannot have any adverse collateral consequences.
