Jacobs v. United States

*17PER CURIAM:

After a three-week trial, appellant was convicted of first-degree premeditated murder while armed, two counts of first-degree felony murder while armed, armed robbery, assault with a dangerous weapon, armed kidnapping, second-degree theft, and two weapons offenses. On appeal he argues (1) that the trial court erred by instructing the jury that a guilty verdict on the armed robbery charge could be supported in part by a finding that force was used to “take or keep” the property, rather than simply to “take” the property as stated in the Standard Jury Instructions, and (2) that the trial court erred by admitting into evidence certain “prior consistent statements” of three government witnesses. We reject both of these contentions and affirm, except that two of appellant’s convictions for murder (of the same victim) must be vacated. We therefore remand the case for partial resentencing, as set forth in part IV of this opinion.

I.

On Saturday evening, January 2, 1999, Che Carpenter and Tanina Ashmon walked out of a liquor store and headed for appellant’s apartment at 933 52nd Street, N.E.1 While en route, they encountered appellant as he appeared from behind a building. , Appellant told Ms. Ashmon that someone had recently fired a gun at him and that he planned to “get whoever it was that was shooting at him.” Appellant then asked Ashmon whether a rifle belonging to Carpenter was still in her apartment, and Ashmon replied that it was. Appellant knew that Carpenter had a rifle that he wanted to sell; indeed, Ashmon had previously told appellant that if he was interested in buying it, “he could come to [her] house and see it_”

The group, which also included appellant’s cousin, proceeded to Ashmon’s apartment at 927 52nd Street, N.E., to retrieve the rifle. Once inside, appellant again said that someone had shot at .him. At that point he picked up the rifle from Ms. Ashmon’s lap as she sat on the couch. As appellant was examining the rifle, Carpenter approached and began to explain to him how the rifle worked. Suddenly appellant “cocked it back,” pointed the rifle at Carpenter, and ordered him to “get outside.” When Ms. Ashmon asked what he was doing, appellant replied that Carpenter, to whom he referred with an obscene epithet, “almost got me killed.”2 He also pointed the rifle at Ms. Ashmon, said that he was “serious,” and threatened to kill Mr. Carpenter. He then forced Carpenter at gunpoint to back out of the apartment and down a staircase that led outside, despite Carpenter’s “pleading for his life” and his insistence that he “[didn’t] mean to do nothing to [appellant].”

Ms. Ashmon, who remained in the apartment, testified that after Carpenter and appellant had gone outside, she heard “a lot of gunshots.” She then went outside and found Carpenter’s body lying in a pool *18of blood.3 After seeing the body, Ashmon went quickly to a nearby convenience store to find a police officer. Ms. Ashmon initially told the police only that there was a dead body outside her apartment building, giving a false account of the surrounding events. However, approximately three days later, she contacted the police again and informed them of the actual circumstances of the murder.

II.

Appellant contends that the trial court erred by allowing the “near constant admission” of prior consistent statements by three government witnesses.4 He claims that “the prosecutor engaged in a pattern of examination that improperly bootstrapped the witnesses’ prior statements in order to improperly bolster their credibility,” and that the court abused its discretion by allowing such questioning. He concludes that this abuse requires reversal because of the sheer number of times the government was allowed to ask these questions, the lack of a curative instruction, and the “improper bolstering” which occurred at critical junctures of the government’s case.

The government maintains in response that appellant’s claim is based on a “deeply flawed interpretation of what constitutes a ‘prior consistent statement.’ ” As the government points out, the prosecutor’s questions referred only to earlier testimony elicited at trial, not to prior statements made out of court. Therefore, instead of eliciting prior consistent statements, the prosecutor was merely directing each witness “to his or her earlier testimony from the trial so that he or she could provide a focused response in the manner most helpful to the jury.” Accordingly, the government contends that appellant’s claim is “an oblique attack upon the form and content of the government’s direct examination questions at trial” rather than a challenge to the admission of prior consistent statements. The government also observes that appellant’s brief “merely recounts the questions posed by the government at trial ” rather than the answers given by the witnesses (emphasis in original). “As such,” the government maintains, “there is not even evidence for this court to evaluate on appeal.” We agree with the government and reject appellant’s argument.

“The rule barring the introduction of prior consistent statements is designed to prevent the jury from learning that a witness has given the same account out of court that he or she gave on the stand.” Sherer v. United States, 470 A.2d 732, 740 (D.C.1983) (emphasis added). The rationale behind this rule is twofold. First, “a witness’ having told the same story on more than one occasion has no bearing on the truth of the statement.” Id.; accord, Warren v. United States, 436 A.2d 821, 836 (D.C.1981) (“mere repetition does not imply veracity” (citation omitted)). Second, “the prejudice from wrongly admitted prior consistent statements is that the witness’ credibility is unfairly bolstered.” Daye v. United States, 733 A.2d 321, 327 (D.C.1999). However, prior consistent statements may still be admitted to rehabilitate a witness in at least two “exceptional situations,” namely, “(1) where *19the witness has been impeached with a portion of a statement and the rest of the statement contains relevant information that could be used to meet the force of the impeachment, and (2) where there is a charge of recent fabrication.” Reed v. United States, 452 A.2d 1173, 1180 (D.C.1982) (citations omitted).

Turning now to appellant’s claim of error, we need not (indeed, we cannot) decide whether the trial court properly admitted prior consistent statements, under the case law summarized above, because the statements on which appellant’s argument is based are not properly characterized as prior consistent statements— which are, as Sherer and other cases tell us, statements made out of court, not in court. At no time did the prosecutor ask any witness about a prior statement that was made out of court, and then seek to elicit a similar response to demonstrate that the witness was still saying the same thing. Rather, in all of the many instances of which appellant complains, the prosecutor began each question by drawing the witness’ attention to his or her previous trial testimony as a way of alerting the witness to the subject matter of the question. Thus the government is correct when it says that appellant’s claim of error is more properly characterized as a challenge to the form of the questions, rather than to the admission of prior consistent statements. Regulating the form of the questioning is a matter within the sound discretion of the trial court. See, e.g., Gardner v. United States, 698 A.2d 990, 998 (D.C.1997); Sherrod v. United States, 478 A.2d 644, 653 (D.C.1984). On the record before us, we find no abuse of that discretion. Thus a claim of such abuse, if made, would surely fail.

III.

Appellant contends that the trial court erred in instructing the jury that the crime of robbery would be established if, among other things, appellant “took or kept [Carpenter’s rifle] by using force or violence” (emphasis added).5 Appellant points out, and the government acknowledges, that there was no evidence that he used or threatened force when he initially took the rifle from Ms. Ashmon’s lap; at that point both Ashmon and Carpenter, standing near her, impliedly consented to appellant’s custody of the gun as he inspected it — with Carpenter’s help — seemingly with the intent to buy it.6 Thereafter, appellant’s argument continues, neither Carpenter nor Ashmon “made any effort or expressed any desire to recover possession of the rifle” (Supp. Br. for App. at 7). The result, he asserts, is that by permitting the jury to equate “take” with “keep” the court modified an element of the offense and “wrongfully avoided the clear implication that the government had not met its burden of proof’ that he took the gun by actual or threatened use of force (Br. for App. at 23).

*20We reject this argument. Although appellant initially took possession of the gun pretending — so the jury could find — to examine it with a view to buying it, almost immediately he cocked the rifle, pointed it at Carpenter, and ordered him outside while threatening to kill him.7 In these circumstances, where the threatened violence occurred directly on the heels of a plainly conditional transfer of possession (conditioned on return or purchase of the gun), it was perfectly logical for the court to instruct the jury that the threatened use of force by appellant did not have to coincide with the initial transfer so long as he used force to prevent Carpenter from regaining possession of the rifle.8 Our decisions and the common law are consistent with that instruction.

Revealing first is that the standard jury instruction in this jurisdiction explains that the use of force or violence “so as to overcome or prevent the [victim’s] resistance satisfies the requirement of force or violence.” CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.46 (4th ed.1993) (emphasis added).9 This implies that the assailant may have gained partial or incomplete possession of the property before “resistance” causes him to use force to “overcome” the owner’s efforts to take it back. And, contrary to appellant’s suggestion, it is beside the point that Carpenter, with the rifle pointed at him and threatened with death, did not risk a bullet by offering actual resistance to the taking (whether he did so outside the apartment we do not know); the robbery was complete when appellant prevented any such resistance by intimidating the victim with the gun. Furthermore, in keeping with the common law, robbery in this jurisdiction requires the use of force or violence in a “felonious taking ... accompanied by an asportation [or carrying away].” Lattimore, supra note 5, 684 A.2d at 359 (emphasis added). Although “the slightest moving of an object from its original location may constitute an asportation,” Simmons v. United States, 554 A.2d 1167, 1171 n. 9 (D.C.1989), the combined requirement of taking and carrying away demonstrates that force or violence used during a sequence of actions that includes but is not limited to the initial seizure is sufficient to make out the crime of robbery.

At the very least, we hold, force used by the defendant to obtain complete possession or control of the property satisfies the requirement for taking by force. In Lattimore, supra note 5, for example, we held that the requirements of a taking, asportation, and use of force or violence were met where the defendants’ “complete and exclusive control [was] demonstrated as they physically held the items in their hands while restraining and threatening to shoot [the victim].” Id. at 360 (emphasis added). *21Appellant likewise exercised such “complete and exclusive control” of the rifle once he aimed it at Carpenter and threatened to kill him, but not before. Until then, he had held the rifle with the owner’s consent as, in effect, a custodian for the limited purpose of examining it with the intent (or so Carpenter likely thought) to buy it. A leading commentary, ROLLIN M. PERKINS, CRIMINAL LAW (3d ed.1982), underscores this distinction as important to the common law understanding of robbery. Blackstone, Perkins points out, emphasized the robbeiy requirement that the larceny be accompanied by violence or intimidation by stating: “ ‘for if one privately steals sixpence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent ....’” Id. at 348 (quoting 4 Bl. Comm. * 242). But, Perkins explains, “[o]ceasionally this has been misapplied”:

For example, during a chance meeting D suggested he might be interested in buying the gun X was carrying and asked permission to examine it, which was granted. Finding the gun loaded D then pointed it at X and told him to run for his life. As X backed away, D ran off with the weapon. A conviction of robbery was reversed on the theory that the resort to intimidation was after the acquisition of the gun. [citation omitted]. This completely overlooks the distinction between possession and custody. When D received the gun to examine momentarily in the presence of X, D had custody only. Had he run off with the gun without violence or intimidation he would have been guilty of larceny because this would have been a trespasso-ry taking and carrying away with all the elements of that offense. And since he actually did this under a threat to kill he clearly committed robbery ....

Id. at 348-49 (emphasis added). Although appellant did not “r[u]n off with the weapon” or order Carpenter to “run for his life,” the situations are otherwise identical: he initially received what amounted to permission to examine the gun, then pointed it at Carpenter, threatened to kill him, and marched him out of the apartment. In thereby using force to establish his “complete and exclusive control” of the weapon, Lattimore, supra note 5, “he clearly committed robbery.” PERKINS, supra; see also 4 CHARLES E. TORCIA, WHARTON’S CRIMINAL LAW § 463, at 39-40 (15th ed. 1996) (“A thief who finds it necessary to use force or threatened force after a taking of property in order to retain possession may in legal contemplation be viewed as one who never had the requisite dominion and control of the property to qualify as a ‘possessor.’ Hence, it may be reasoned, the thief has not ‘taken’ possession of the property until his use of force or threatened force has effectively cut off any immediate resistance to his ‘possession.’ ”).10

Other courts have reached a similar conclusion. Most pertinent, perhaps, is Ball v. State, 347 Md. 156, 699 A.2d 1170 (1997), where the Court of Appeals of Maryland unanimously adopted the view that

[t]he use of force during the course of a larceny in order to take the property away from the custodian supplies the element of force necessary to sustain a *22robbery conviction. The mere fact that some asportation has occurred before the use of force does not mean that the perpetrator is thereafter not guilty of the offense of robbery. Rather, the totality of the circumstances that surround the taking must be considered. If, as in the instant case,11 the use of force enables the accused to retain possession of the property in the face of immediate resistance from the victim, then the taking is properly considered a robbery.

Id. at 1185; see also In re A.W.K., 778 A.2d 314, 319 (D.C.2001) (noting, as this court often has, that “the jurisprudence of [Maryland]” is “the source of the common law of the District of Columbia”).

Factually somewhat closer to this case is People v. Jones, 990 P.2d 1098 (Colo.App.1999). There the defendant had agreed to sell a gun to the victim, but decided that he would retake possession of the gun from the victim by “using some excuse,” and then keep the gun and the money. Id. at 1101. The defendant handed the gun to the victim and received the money, but then asked the victim to return it so that he could demonstrate how to load it. The victim complied, and the defendant chambered a round but then, still holding the gun, pointed it at the victim and said, ‘You better not say anything or this[ will] come back on you.” Id. at 1102. The gun then discharged, fatally wounding the victim. Id. On appeal, the defendant argued that he took the gun by trickery rather than force, that the taking was complete once he had possession of both the gun and the money, and that any force, threats, or intimidation occurred after the taking was complete. The Colorado Court of Appeals rejected this argument, stating that “the gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of the transaction culminating in the taking of property from the victim’s person or presence.” Id. at 1106. Even though Colorado’s definition of robbery — like the District of Columbia’s — does not explicitly mention the use of force to retain possession or escape, the court concluded that the taking is not necessarily over once the defendant has gained initial physical possession of the property. See also People v. Webster, 54 Cal.3d 411, 285 Cal.Rptr. 31, 814 P.2d 1273, 1289 (1991) (“The act of ‘taking’ begins when the separation of the victim from his or her property occurs, and it continues through the forcible consummation.”); People v. Flynn, 77 Cal.App.4th 766, 91 Cal.Rptr.2d 902, 906 (2000) (“[T]he requisite force or fear [for robbery] need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery.”); State v. Leevans, 70 Wash.2d 681, 424 P.2d 1016, 1019 (Wa.1967) (robbery instruction that included explanation that “[s]uch force or fear must be used to obtain or retain possession of the property taken” was proper) (internal quotation omitted).

Here, to summarize, no sooner had Carpenter impliedly consented to appellant’s momentary possession of the rifle for examination, than appellant turned the rifle on him with the threat of deadly force and ordered him out of the apartment at gunpoint. This threat of violence to forestall any attempt by Carpenter to regain possession of the weapon was sufficient to establish the force or violence element of robbery. Any other conclusion would create a perverse incentive to theft backed up *23by a readiness to use force where necessary.12

IV.

Appellant was convicted of premeditated murder and two counts of felony murder based on the same killing. “When there is only one killing, the defendant may not be convicted of more than one murder.... [Appellant] cannot remain convicted of both first-degree premeditated murder and first-degree felony murder of the same victim.” Thacker v. United States, 599 A.2d 52, 63 (D.C.1991) (citations omitted). We leave it to the trial court on remand to decide which two of the three murder convictions should be vacated. See id. at 64 (“Ordinarily we ... leave it to the trial court to decide, in its discretion, which ... murder convictions to vacate” (citations omitted)). However, if the premeditated murder conviction is vacated and one of the two felony murder convictions is allowed to stand, then the predicate felony conviction must also be vacated because it is included in the felony murder. See Adams v. United States, 502 A.2d 1011, 1026 & n. 22 (D.C.1986).

Except for the partial remand we order, the judgment of the Superior Court is affirmed.

So ordered.

. Ashmon and Carpenter were going to appellant’s apartment after hearing from a friend in the liquor store that appellant had marijuana and alcohol there. Appellant knew both Ashmon and Carpenter. Ashmon testified that appellant was “one of my closest friends” whom she had known for "about six or seven years,” and that they had worked together selling drugs.

. Two days earlier, on December 31, 1998, Ashmon and Carpenter had engaged in two armed robberies. The victim in one of these robberies was a drug-dealing associate of appellant. During this robbery Carpenter’s mask fell off, thus exposing his identity. Appellant seemed to believe that his being shot at was related in some way to this robbery committed by Ashmon and Carpenter.

: This testimony was corroborated in part by David White, one of Ashmon’s neighbors. Mr. White testified that while he was outside loading laundry into his truck, he heard someone directing another person to go around to the back of the building and then heard a series of gunshots.

. Appellant challenges a total of thirty-eight questions that incorporated so-called "prior consistent statements” made by three government witnesses: Tanina Ashmon, David White, and Amahad Sharif.

. In the District of Columbia, robbery [D.C.Code § 22-2801 (2001)] retains its common law elements. Thus the government must prove larceny and assault. To support a robbery conviction, the government must prove that there was "(1) a felonious taking, (2) accompanied by an asportation [or carrying away], of (3) personal property of value, (4) from the person of another or in his presence, (5) against his will, (6) by violence or by putting him in fear, (7)[and] animo furandi [the intention to steal].”

Lattimore v. United States, 684 A.2d 357, 359 (D.C.1996) (quoting United States v. McGill, 159 U.S.App.D.C. 337, 338, 487 F.2d 1208, 1209 (1973)) (additional citations omitted).

. As noted earlier, appellant knew Carpenter had a rifle to sell, and Ashmon had invited him to her house to see it if he was interested in buying it.

. Although appellant’s intent all along may have been to kill or injure Carpenter, he makes no argument that the jury could not also find an intent to steal the rifle, as required for robbery.

. Whenever we say "force was used” or the "use of force” here, we mean not just the actual use of force or violence but threatened force capable of putting a person in reasonable fear of danger. See D.C.Code § 22-2801 ("by force or violence ... or by putting in fear”). The jury was instructed accordingly.

.See, e.g., Turner v. United States, 57 App.D.C. 39, 40, 16 F.2d 535, 536 (1926) ("under the common law, ... the force used [must be] sufficient to overcome or prevent any resistance, or to put the owner in fear”). By statute, of course, the District also defines “force or violence” as "stealthy seizure or snatching,” § 22-2801, hence requiring only that force “necessary to lift a wallet from a pocket.” United States v. Mathis, 295 U.S.App.D.C. 296, 306, 963 F.2d 399, 409 (1992).

. This court in other instances has recognized that robbeiy may be distinguished from larceny because the defendant used force to gain exclusive physical control over the victim’s property. See, e.g., Rouse v. United States, 402 A.2d 1218, 1220 (D.C.1979) (although defendant used gun to frighten property owner into flight before property was taken, robbeiy instruction was proper because defendant’s use of force prevented owner from exercising control over the property).

. In Ball, the defendant’s confession established that the murder victim had surprised him as he was leaving her house (which he had burglarized) with items of her property in his possession. She had "presumably sought to prevent [ajppellant from removing the items,” since she was later found shot to death in the home. Id. at 1185.

. It follows from this discussion that we reject appellant’s arguments that the evidence was insufficient to support his robbery (and, by implication, felony murder robbery) convictions, and that the challenged instruction by the trial court created a “fatal variance” between the robbery as charged and as submitted to the jury.