Alazajuan Gray & Clifton Smith v. United States (decided October 20, 2016).
Players:
Associate Judges Fisher and Beckwith, Senior Judge Newman. Majority opinion by Judge Fisher. Opinion
concurring in part and dissenting in part by Judge Beckwith. Matthew Leefer for Mr. Gray. Marie Park for Mr. Smith. Trial Judge: Herbert Dixon.
Facts:
This case involves two separate Metro robberies. First, on September 21, 2012, at around 11:00
p.m., three black men, including Mr. Gray and Mr. Smith, approached the
complainant, Gerald McIntosh, as he was riding the train downtown from the
Silver Spring Station. Mr. Gray brandished a gun and took an iPhone and $20
from Mr. McIntosh, and as he left the train, he warned Mr. McIntosh not to
snitch.
A
week later, on September 28, Mr. McIntosh saw Mr. Gray and Mr. Smith again,
this time at the Fort Totten Station. When
Mr. McIntosh saw the two men walking towards him, he took off running to the station
manager’s kiosk. Mr. Gray and Mr. Smith chased
him. When they reached the kiosk, Mr.
Smith yanked open the kiosk door and asked Mr. McIntosh whether he was
snitching. Mr. McIntosh replied that indeed
he was, so Mr. Smith punched him in the face.
The station manager broke it up and Mr. Gray and Mr. Smith ran
away. Metro police responded to the
scene and arrested Mr. Gray and Mr. Smith after a showup. At trial, officers described Mr. Gray as a black
man with short hair who was wearing a blue and yellow hat and a dark blue or
dark colored shirt.
An
hour before Mr. Gray and Mr. Smith confronted Mr. McIntosh at Fort Totten,
Katherine Takai boarded a yellow line train at Pentagon City heading downtown. Three black men standing together on the
train piqued her interest. As the train
reached Gallery Place, one of the men snatched her phone, and when she tried to
chase him, the other two blocked her way.
Later that night, police officers found the phone in a park outside the
Fort Totten Station, where police had detained Mr. Smith during the
showup. Ms. Takai was not able to
identify the robbers either in a photo array or at trial. She could only
testify that the guy who snatched her phone had short hair and was wearing a light
blue shirt, and one of the guys who blocked her way was wearing a white t-shirt
and had dreadlocks.
The
robberies were tried together, and appellants were convicted of (among other crimes)
armed robbery of Mr. McIntosh and unarmed robbery of Ms. Takai.
Mr.
Smith and Mr. Gray raised a number of issues on appeal, the two most prominent
being:
Issue
1: Whether the government erred in joining the two robberies and whether the
trial court erred by denying severance.
Ruling:
The court did not decide the issue of whether the government erred by joining
the two offenses, although it had “serious doubts that the robberies in this
case were properly joined.” The Court instead ruled that the trial court reversibly
erred by refusing to sever the robbery cases. The Court reasoned that the
evidence of the two robberies failed to satisfy the mutual admissibility requirement
of other crimes evidence in joint trials, given that none of the evidence of the
September 21 robbery was admissible to prove the September 28 robbery. The government argued that the evidence was
mutually admissible to prove the identity of the assailants. The Court was “doubtful” that it should
“consider this argument” because the prosecutor below argued that the
government was not planning to use the
similarities between the robberies to prove the identities of the
assailants. Even so, the Court found
that it was not proper identity evidence, given the key differences between the
two robberies, including one was an armed robbery by force designed to
humiliate the complainant, while the other was a stealthy snatching after which
the robbers ran away.
The Court ruled
that the general taking of cell phones on the Metro is far too commonplace to be
probative of identity. It also rejected
the government’s argument that the earlier robbery was necessary to put the
later robbery in context because the first robbery “did not explain any aspect”
of the second robbery. Finally, the Court
concluded that the evidence of the first robbery was highly prejudicial because
“the much stronger evidence” of that robbery “would necessarily alter the
jury’s perception” of the later robbery. With the introduction of the evidence regarding
the earlier robbery, the “simple phone snatching” now looked like “the work of
an experienced gang of robbers.” The
Court therefore vacated appellants’ unarmed robbery convictions.
Issue
2: Whether there was sufficient evidence to convict Mr. Gray of the unarmed
robbery of Ms. Takai.
Ruling:
Yes. The majority acknowledges that the
evidence was “not overwhelming,” but reasoned that the evidence was sufficient
because Mr. Gray matched Ms. Takai’s description—African American male with a
blue shirt. Mr. Gray admitted to being
at Gallery Place and that he later travelled with Mr. Smith—who also matched Ms.
Takai’s description of one of the robbers. There was video of Mr. Gray and Mr. Smith at
Fort Totten together that suggested “more than simultaneous presence.” And the
jury knew that Mr. Gray and Mr. Smith were accomplices in the robbery of Mr. McIntosh.
Dissent: Judge Beckwith dissented. First, Judge Beckwith noted that Ms. Takai’s
description of the person alleged to have been Mr. Gray added little to the
sufficiency calculus because it was both vague and imperfect: Ms. Takai said the
robber was a black man wearing a light blue shirt while Mr. Gray was wearing a dark
blue shirt at the time of his arrest. Judge
Beckwith found the fact that Mr. Gray was at Gallery Place inconsequential
given that “Gallery Place is a busy transfer station connected to the Fort Totten
station by the yellow, green, and red lines,” thus this fact did not
“meaningfully bolster what can already be inferred from the fact that Mr. Gray
was later seen at Fort Totten station.” Judge
Beckwith thought that the video of Mr. Gray and Mr. Smith together at Fort
Totten was “worth very little, given that an hour passed between the two
incidents and the later incident occurred at a different Metro station, miles
away.” Finally, Judge Beckwith explained
that while the Court must consider all of the evidence before the jury when
faced with a sufficiency challenge, the earlier robbery of Mr. McIntosh was
very different from Ms. Takai’s robbery and thus only a weak inference could be
drawn from the earlier robbery. Moreover,
consideration of the earlier robbery was improper for this particular
sufficiency analysis because evidence of the earlier robbery was only helpful
insofar as it raised a propensity inference—because Mr. Smith and Mr. Gray
committed an earlier robbery together, it was more likely that they would rob
together again—and the law forbids such inferences, especially when, as was the
case here, the jury was instructed against drawing propensity inferences.
Of Note:
- Mr. Gray argued that two of his three convictions for violating D.C. Code § 23-1328(a)(1), committing an offense during release, should merge under the Double Jeopardy Clause because they were both committed on the same day. The Court rejected this argument but directed the trial court to “reform the judgment” to show the § 23-1328 violations as enhancements and not standalone offenses.
- Consult the opinion for the Court’s discussion of the rest of the issues, including:
- Whether the trial court erred by not severing the contempt charge against Mr. Gray. Answer: it didn’t.
- Whether the trial court plainly erred by not instructing the jury that an unarmed aider and abettor must have “actual knowledge” that the principal was armed. Hint: see above.
- Whether the trial court erred by refusing to allow the defense eyewitness identification expert to testify about the accuracy of the specific identification made by McIntosh. Hint: same. DH
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