Leak v. United States

STEADMAN, Associate Judge:

Appellant picked up and rode away on a bicycle that had fallen to the street while the true owner, wearing a bicycle helmet, and an assailant were struggling close by. He was convicted of robbery. On appeal, he argues that the trial court erred in refusing to instruct the jury on the lesser-included offense of theft and that the denial of his request for a continuance to retain new counsel on the eve of trial was an abuse of discretion. Finding no error on either basis, we affirm.

I.

A.

The standards for our review are well-established. “A lesser-included offense instruction is proper where (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge.” Woodard, v. United States, 738 A.2d 254, 261 (D.C.1999) (quotation omitted). “This evidentiary requirement can be met in one of two ways: (1) where there is conflicting testimony on the factual issue, and (2) where the lesser included offense is fairly inferable from the evidence including a reconstruction of the events gained by accepting testimony of some or all of the witnesses even in part.” Price v. United States, 602 A.2d 641, 644 (D.C.1992) (quotations omitted). The lesser included instruction, however, is only required where, based on that evidence, “a jury could rationally convict on the lesser-included offense.” Bright v. United States, 698 A.2d 450, 457 (D.C.1997) (quoting Shuler v. United States, 677 A.2d 1014, 1017 (D.C.1996)). Thus, “[wjhere a verdict on the lesser offense would be irrational, or require the jury to undertake a ‘bizarre reconstruction of the evidence,’ the instruction is not warranted.” Boykins v. United States, 702 A.2d 1242, 1250 (D.C.1997) (quoting Shuler, supra, 677 A.2d at 1017); see also Smith v. United States, 686 A.2d 537, 545 (D.C.1996), cert. denied, 522 U.S. 839, 118 S.Ct. 115,139 L.Ed.2d 67 (1997).

The definitions of the relevant crimes must, of course, also shape the analysis. An individual commits the offense of theft “if that person wrongfully obtains or uses *741the property of another with intent: (1) To deprive the other of a right to the property or a benefit of the property; or (2) To appropriate the property to his or her own use or to the use of a third person.” D.C.Code § 22-3811(b) (1996). An individual commits robbery when “by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, [he or she] take[s] from the person or immediate actual possession of another anything of value.” D.C.Code § 22-2901 (1996).

There is no dispute here that theft is a lesser included offense of robbery. Ulmer v. United States, 649 A.2d 295, 297 (D.C.1994). Moreover, the appellant does not contest the sufficiency of the evidence for conviction of the greater charge of robbery. Under these conditions, the exclusion of a theft instruction would only be justified if “a verdict on the [theft] offense would be irrational, or require the jury to undertake a bizarre reconstruction of the evidence.” Boykins, supra, 702 A.2d at 1250. Therefore, we examine the record to determine whether the evidence presented limited the rational conclusion of the fact-finder to either acquittal or conviction on robbery.

B.

In this case, there was no eyewitness to the totality of the fast-moving relevant events. The key evidence came in through the testimony of the victim, Matthew Sa-walick.1 The “hard facts” to which he could testify about the event consisted of the following. On December 16, at 9:30 p.m., Sawalick was slowly riding his bicycle on P Street, N.W., near Dupont Circle. The street was crowded with pedestrians and cars. Suddenly, he was attacked from behind and pulled off his bicycle. He was dragged away from the bicycle and kicked, the attack lasting for less than a minute. As Sawalick struggled with his assailant, another man — later identified as appellant — picked up the bike, as it lay just a few feet from the two struggling men, and rode away with it down P Street. Sawal-ick broke free and gave chase, all the while yelling for help. A near-by police officer heard his cries and caught up with appellant on the victim’s bicycle. The other individual, who had initiated the attack, was never identified or apprehended.

Sawalick acknowledged that as far as he could say for sure, he struggled only with the unidentified man, and that appellant never touched him. Both the assailant and the appellant approached from behind, and therefore he did not see whether the two approached together. Indeed, he said nothing of appellant’s movements prior to the moment that appellant took the bike. Sawalick said that his bicycle helmet fell over his eyes for a time, which hindered his observation of events. The only direct link between the assailant and appellant was that, according to Sawalick, during the struggle, the assailant told appellant to “take the bike.”2

Clearly this evidence was sufficient for a conviction of robbery, drawing as we must all inferences in favor of the government, on the basis of the inference that the appellant and the unidentified assailant worked in concert. But in considering this evidence on the issue of the lesser-included offense, we must exercise these same considerations in favor of the appellant. In short, the question here is whether this *742evidence was also susceptible of a reasonable finding only of theft.

The defense theory of the case did not take serious issue with the hard facts presented by Sawalick. It was, in essence, that appellant came upon the scene seeing the two men struggling and the bicycle lying in the street. Appellant picked up the bicycle simply to remove it from the street. As Sawalick chased after him screaming, appellant fled in panic to escape Sawalick, not to steal the bike from him. If believed, this scenario, which did not require the presentation of any additional evidence, would result in an acquittal.

But as our case law indicates, the jury is not bound to accept in full the scenario presented by either side. Shuler, supra, 677 A.2d at 1017. Indeed, a defendant has the right to a lesser-included instruction warranted by the evidence even if it is inconsistent with the defendant’s theory of the case. See Bostick v. United States, 605 A.2d 916, 917 (D.C.1992). Here, the jury could have concluded that the best the evidence showed beyond a reasonable doubt was that appellant came upon two individuals struggling (one of them with a bicycle helmet), saw a bike lying close beside them, and seized the opportunity to take the bike for himself.

Prior to closing arguments, defense counsel requested an instruction on misdemeanor theft because of the undisputed evidence that Leak never assaulted the victim. Counsel argued that attacks on Sawalick’s credibility allowed the jury to reasonably discredit his testimony regarding the assailant’s purported instruction to Leak and the subsequent inference of a connection between the two men. The trial court denied the requested instruction. The court ruled that there was no evidence on which to support a finding of theft because the appellant was either “totally innocent” or an “aider and abettor in a robbery ... [because] he [took] advantage of the forcible removal of the complainant from the bicycle.” Thus, the trial court apparently concluded that even if no prior connection existed between assailant and appellant, the latter nonetheless was guilty of robbery in taking “advantage” of the assailant’s use of force to acquire the property.

We need not decide here whether a conviction for robbery, whether as a principal committing the asportation portion of that offense or as an aider or abettor, can rest upon such a proposition. Rather, the question is whether the evidence could have supported a finding that, although appellant illegally possessed the bicycle, he neither participated in a robbery along with the unidentified assailant, nor acted as a principal of a robbery by snatching the bike from the immediate actual possession of the victim. Even if we assume that the appellant did not act in concert with the assailant, we conclude that a rational jury could not find that appellant’s taking of the bicycle happened outside the “immediate actual possession” of the victim within the expanded meaning that our statute and case law have given both to the offense of robbery and to that component of the offense.

In distinct contrast to most jurisdictions, the District of Columbia’s statutory definition of robbery includes the stealthy snatching of an item, even if the victim is not actually holding, or otherwise attached to the object, or indeed is unaware of the taking. “To satisfy the ‘force’ requirement in a charge of robbery by stealthy seizure, the government need only demonstrate the actual physical taking of the property from the person of another, even though without his knowledge and consent, and though the property be unattached to his person.” (Earl) Johnson v. United States, 756 A.2d 458, 462 (D.C.2000) (citations and quotations omitted). We have consistently and for many years given a broad meaning to the term “immediate actual possession,” and have recognized that any taking from the area encompassed by that term is a robbery — not *743simply larceny. Furthermore, such possession may continue for purposes of robbery even though the owner is prevented by force from effectively exercising that possession. See (Phillip) Johnson v. United States, 686 A.2d 200, 208 n. 1 (D.C.1996) (“‘immediate actual possession’ in the robbery statute ... means ‘an area within which the victim could reasonably be expected to exercise some physical control’ ”) (quoting United States v. Spears, 145 U.S.App.D.C. 284, 293, 449 F.2d 946, 955 (1971)); Head v. United States, 451 A.2d 615, 624 (D.C.1982) (same); Rouse v. United States, 402 A.2d 1218, 1220 (D.C.1979) (“a thing is. within one’s ‘immediate actual possession’ so long as it is within such range that he could, if not deterred by violence or fear, retain actual physical control over it”) (citing United States v. Dixon, 152 U.S.App.D.C. 200, 204, 469 F.2d 940, 944 (1972)); Spencer v. United States, 73 U.S.App.D.C. 98, 116 F.2d 801 (1940) (jury could reasonably find that defendant took wallet from “immediate actual possession” of victim while he was in bed with a prostitute and his trousers containing the wallet sat on a chair in the same room as unknowing victim). Indeed, in Spencer, the appellate court deemed “clearly correct” a trial court instruction that an item is in immediate actual possession of a person in circumstances where “if the complainant knew that his property was being removed from his clothes, such knowledge would likely result in physical violence or a struggle for possession of the property.” 73 U.S.App.D.C. at 99, 116 F.2d at 802.

Here, among the evidence presented, there was no dispute that when appellant took the bike, Sawalick was approximately two feet away.3 A bicycle lying two feet away from the owner is, undoubtably, within the victim’s immediate actual possession as our cases have applied that term, at least where, as here, the owner is aware of the attempted taking in a setting of force and violence.4 See, e.g., (Earl) Johnson, supra, at 462 (“taking [victim’s] wallet from the ground, as opposed to [victim’s] person” satisfied the elements of robbery); Giles v. United States, 472 A.2d 881, 884 (D.C.1984) (evidence was sufficient to prove that property was taken from “immediate actual possession” where defendants stole property from homeowner, while homeowner was physically restrained in the house, despite lack of evidence of the location of the stolen property within the house); Rouse, supra, 402 A.2d at 1220-21 (property remained in immediate actual possession of victim even though victim had fled from scene after threats of force or violence); Spencer, supra, 73 U.S.App.D.C. at 116, 116 F.2d 801 (wallet in trousers which were hanging on chair were within victim’s immediate actual possession). We therefore conclude that a jury finding of guilt on the lesser-included offense of theft without a finding of guilt on the robbery charge would have irrationally ignored the meaning of “imme*744diate actual possession” within the robbery statute, or would have reflected a bizarre reconstruction of the evidence. Boykins, supra, 702 A.2d at 1250. The request for the lesser-included instruction was properly denied.

II.

Appellant also argues that the'trial court abused its discretion when it denied his request to replace his court-appointed counsel from the Public Defender Service (PDS) with retained counsel. Appellant’s request came as his trial was about to begin, and would have granted him his third attorney of the proceedings.5 Absent evidence that appellant’s trial counsel was ineffective, and in light of the questionable merits of appellant’s request and the adverse effect on the orderly administration of justice such a substitution would have had, we find appellant’s argument unpersuasive.

The operative principles governing our review have been cogently set forth in United States v. Burton, 189 U.S.App.D.C. 327, 584 F.2d 485 (1978).

An accused who is financially able to retain counsel must not be deprived of the opportunity to do so. Yet the right to retain counsel of one’s own choice is not absolute. The right cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same. The public has a strong interest in the prompt, effective, and efficient administration of justice; the public’s interest in the dispensation of justice that is not unreasonably delayed has great force.
... It is firmly established that the granting or refusal of a continuance is a matter within the discretion of the judge who hears the application and is not subject to review absent a clear abuse. Yet when the continuance is sought to retain or replace counsel, the defendant’s Sixth Amendment right to the assistance of counsel is implicated....
The evaluation of appellant’s need for additional counsel, and the balance between the right to select counsel and the public’s interest in the orderly administration of justice must all be carefully and delicately weighed: but sitting as a court of review, we afford substantial discretion to the trial court in judging that balance, and we will not reverse absent a showing of a deprivation of the defendant’s right.

189 U.S.App.D.C. at 331, 334, 584 F.2d at 489, 492 (internal footnotes and quotations omitted).

The factors relevant to a trial court’s consideration in deciding whether to grant a continuance for new counsel include (1) whether other continuances have been requested or granted; (2) the inconvenience to the litigants, witnesses, and the court; (3) whether the request is dilatory or contrived; (4) the degree to which the defendant contributed to the delay; (5) whether the defendant has attempted to arrange for competent addi*745tional counsel; (6) the degree of identifiable prejudice which would flow from the continuance; and (7) the complexity of the case. See Yancey v. United States, 755 A.2d 421, 427-28 (D.C.2000) (citing Burton, supra, 189 U.S.App.D.C. at 333, 584 F.2d at 491). A trial court need not explain its reasoning in detail, but rather need only “perceive [these] salient factors” when exercising its discretion.6 Burton, supra, 189 U.S.App.D.C. at 339, 584 F.2d at 497.

Here, appellant indicated his wish for a new lawyer on the very day trial was to begin. Upon appellant’s insistence for new counsel, the court conscientiously and appropriately held an inquiry, wherein the court sought appellant’s reasons for desiring new counsel. Appellant first indicated that he was dissatisfied with his counsel because the PDS attorney was unprepared, but could give no specific basis for this belief.7 He then said that he felt the attorney’s status as a government employee biased the representation against him.8 This comment represented appellant’s first complaint on that basis, although beginning on July 24, 1997, he had been represented by a PDS attorney.

We recognize that appellant’s dissatisfaction with counsel on account of pro-government bias could be regarded as applying more specifically to the new PDS attorney, rather than to the agency as a whole. But the trial court did not read it that way, and the record supports her understanding of appellant’s complaint as attacking counsel’s affiliation as such. In response to Leak’s statements, the court told him that his PDS attorney was independent of the prosecutor’s office and was “representing only you.” Since Leak had identified no particular instances in which counsel “[took] on more than ... a lawyer’s position” or sided with the government, the court reasonably perceived his dissatisfaction with counsel as entirely general in nature — of a piece with his later remark that counsel and he could not “even have any good conversations about the case” — and insufficient to require a continuance so that counsel could be replaced once more. See Derrington v. United States, 681 A.2d 1125, 1133 (D.C.1996) (under the 6th Amendment, “[t]his court’s standard of review is a deferential one.... We accept the judge’s factual findings unless they lack evidentiary support, but we review his [or her] legal con-*746elusions de novo.”) (quotations and citations omitted); (James) Johnson v. United States, 398 A.2d 854, 364 (D.C.1979) (“Generally [where the trial court has exercised its discretion] the factual record must be capable of supporting the determination reached by the trial court.”) (emphasis added).

Appellant acknowledged to the court that he had not attempted to arrange for private counsel, despite his stated intentions to do so five months prior to the December trial date. See supra note 5. Moreover, the court found that appellant’s counsel was a “capable, experienced attorney, fully capable of giving [appellant] effective representation.” In addition, the trial court was aware of appellant’s previous request (and the subsequent grant) for new counsel, the various delays in appellant’s trial, and the fact that this was a non-aggravated robbery case. The next morning, appellant feigned illness, and again requested new counsel, prompting the trial court to note that “it appears obvious to the court that [appellant is] simply trying every technique to avoid this trial.”9

Unlike the situation in Yancey, where the trial court erroneously exercised its discretion in denying a continuance for new counsel to prepare for a first-degree murder trial, there is no indication here that the court “failed to take into account other relevant factors and balance them against its desire to control its docket and have the case proceed to trial expeditiously.” At 428-29. On the contrary, the hearing transcripts reflect adequate consideration of the merits of appellant’s request, the preparedness of his appointed counsel, the prejudice to the orderly administration of justice, and the failure of appellant to secure retained counsel despite adequate time to do so,10 among other factors. In this context, the trial court did not abuse its discretion in denying appellant’s request for a continuance to retain new counsel. See Burton, supra, 189 U.S.App.D.C. at 334, 584 F.2d at 492 (no abuse of discretion to deny continuance to retain counsel where request made on the date which was originally set for trial); McGill v. United States, 121 U.S.App.D.C. 179, 182-83, 348 F.2d 791, 794-95 (1965) (no abuse of discretion to deny continuance to replace appointed counsel with retained counsel where request made four days before trial and defendant failed to indicate he had retained competent counsel to represent him, despite six month opportunity to do so); United States v. Turk, 870 F.2d 1304, 1307 (7th Cir.1989) (“[g]iven ... the lateness of the request, the judge’s accommodation of [appellant’s] previous request for new appointed counsel, the presence of foreign witnesses, the adequacy and preparation of appointed counsel[,] the district court was well within its discretion in denying the continuance [for appellant to obtain new retained counsel]”).

Affirmed.

. Two other witnesses testified for the government. One was the police officer who saw Sawalick chasing the appellant and who was successful in apprehending him on Sawalick's bicycle. He testified that when apprehended, appellant had said "You set me up.” The other witness was a woman who lived on the seventh story of a building overlooking P Street and, responding to Sawalick’s shouts, looked out and saw Sawalick getting up from the ground, appellant moving away on the bicycle and a third person standing nearby. Appellant presented no evidence.

. This statement was apparently made after appellant had already picked up the bike. There was no hearsay or other objection to its admission.

. Sawalick testified as follows:

"Q. And sir, your bike was left in the middle of the road? A. Yeah, with me about two feet away from it trying to grab at it so I can get it. I was being pulled away from it. Q. And Mr. Leak then picked up your bike, right? A. Yeah. Q. Then you turned your attention towards him. Right? A. No. No. Absolutely not. My whole focus of attention was on the bike. I didn’t want to be one inch away from that bike. I wanted to touch it. I wanted to have it. I didn’t want to let it go.”

. It is true that in the cases cited, force and violence were effectuated by the defendant or a cohort, but we fail to see any grounds for distinction under the applicable principles where such dispossession indisputably exists albeit caused by another. Here it was plain that the owner was nearby and appellant acted at his peril if he presumed the struggle was initiated by the owner, contrary to the actual facts. We need not address here the precise dimensions, perhaps more limited, of immediate actual possession in a context where no actual force or violence is involved, and the owner is oblivious of the taking. Cf., e.g, Harrison v. United States, 407 A.2d 683, 684—85 (D.C.1979) (appellant properly convicted of robbery, although elderly victim was unaware pickpocket had taken property from his person).

. Shortly after his arrest on December 16, 1996, appellant was appointed counsel under the Criminal Justice Act by the Superior Court. On July 24, 1997, appellant’s first request to substitute counsel was granted, based on appellant’s representations that existing counsel was inadequate. Appellant, at that time, indicated his desire to hire his own lawyer. In the interim, the court appointed substitute counsel from the Public Defender Service, advising appellant that such a substitution would delay trial at least until December of 1997. Trial was eventually set for December 16, 1997. Due to a reassignment in the PDS, appellant's second counsel was permitted to withdraw on December 8, 1997, and appellant's case was reassigned to another PDS attorney. On December 16, 1997, appellant again requested new retained or appointed counsel. Trial was subsequently continued to the next day without counsel substitution. At no time has appellant indicated that between July 24, 1997, the date appellant first indicated his desire to hire counsel, and December 17, 1997, the beginning of his trial, he attempted to hire his own attorney, despite his indications otherwise.

. Appellant’s reliance on certain comments of the trial court as indicating a hobbled exercise of discretion overlooks the fact that these statements were made in the context of the full panoply of facts and circumstances known to the court which formed the explicit backdrop of the decision to deny appellant’s request.

. The court observed that appellant's newly appointed PDS attorney had received discovery from the government, that all appropriate motions had been filed, and that the attorney appeared "to know a great deal about the case.”

. Although defense counsel acknowledged that appellant's attitude affected the attorney-client relationship, the court was properly within its discretion to deny a continuance on this basis alone.

[I]n evaluating Sixth Amendment claims, "the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.” United States v. Cronic, 466 U.S. 648, 657, n. 21 [104 S.Ct. 2039, 80 L.Ed.2d 657] (1984). Thus, while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. See Morris v. Slappy, 461 U.S. 1, 13-14 [103 S.Ct. 1610, 75 L.Ed.2d 610] (1983); Jones v. Barnes, 463 U.S. 745 [103 S.Ct. 3308, 77 L.Ed.2d 987] (1983).

Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); see also United States v. Gallop, 838 F.2d 105, 108 (4th Cir.1988) (holding that where the trial court had previously found defense counsel competent, "the failure of the trial court to proceed further to resolve the issue [of whether the attorney-client relationship had entirely broken down] was not an abuse of discretion, especially [because] there [was] no evidence in the record to indicate that the question was reasserted during trial”).

. “A request for change in counsel cannot be considered justifiable if it proceeds from a transparent plot to bring about delay.” Gallop, supra, 838 F.2d at 108 (citing Morris, supra, 461 U.S. at 13, 103 S.Ct. 1610).

. It is true that appellant, through no choice of his own, had his court-appointed counsel replaced shortly before trial. Nonetheless, he had opted to accept court-appointed counsel rather than retain his own counsel and his ultimate reason for dissatisfaction with his new counsel, at least by one reasonable reading, did not reflect a completely new and unforeseeable consideration arising out of the substitution.