Criminal Law Blog

Two iPhone Snatchings On Metro Should Have Been Tried Separately

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

Read full opinion here