## Facts

- Damian D. Long was convicted of assault with intent to rob three people while armed at about 10:30 p.m. near 12th and Orren Streets, N.E., and, minutes later a block away on Trinidad Avenue, N.E., of attempted robbery while armed and felony murder while armed of a different victim.
- Earlier that evening, Long left an apartment on Holbrook Terrace, N.E., wearing all-black clothing including a black suede jacket with fringe and a black knit cap.
- On Orren Street, a gunman approached three people near their parked car, pointed a pistol, and demanded money; the assailant then walked toward Trinidad Avenue, and the victims later heard gunshots from that direction.
- On Trinidad Avenue, witnesses saw a man dressed in black approach a man at his car with a pistol; a struggle occurred and shots were fired, killing the victim.
- After the Trinidad Avenue shooting, Long returned to the apartment appearing panicked and sweating, with blood on his face and a pistol in his hand, and said he had shot someone on Trinidad Avenue who had tried to rob him.
- Police recovered a black knit cap near the Trinidad Avenue victim that was consistent with Long’s cap.
- Two Orren Street victims identified Long before trial and again in court; Long moved to suppress those identifications as the product of an unduly suggestive procedure.

## Issues

1. Whether the pretrial identification procedure for the Orren Street victims was so suggestive and unreliable that due process required suppression of subsequent identifications.
2. Whether the Orren Street and Trinidad Avenue offenses were improperly joined, or whether denial of severance unfairly prejudiced Long.
3. Whether the evidence was sufficient to prove attempted robbery (and intent to rob) as to the Orren Street victims and as to the Trinidad Avenue victim, supporting felony murder.
4. Whether the Trinidad Avenue attempted-robbery conviction merged into the felony-murder conviction.

## Decision

- The court affirmed the denial of the motion to suppress the Orren Street identifications, finding no substantial likelihood of misidentification under the totality of the circumstances.
- The court held joinder permissible because the two episodes were close in time and location and connected by evidence suggesting a continuous course of conduct.
- The court remanded for reconsideration of severance, directing the trial court to reevaluate potential prejudice from trying the two incidents together.
- The court found the evidence sufficient to support the jury’s findings of attempted robbery on Orren Street and Trinidad Avenue and to support felony murder predicated on attempted robbery.
- The court reversed the separate Trinidad Avenue attempted-robbery conviction, holding it merged into the felony-murder conviction.

## Legal Principles

- Even if an identification procedure is suggestive, due process requires suppression only when, considering reliability factors and the totality of circumstances, there is a substantial likelihood of misidentification.
- Offenses may be joined when they are of the same or similar character or when they are connected together as parts of a single episode; a separate severance inquiry addresses whether joinder causes unfair prejudice.
- Appellate review of evidentiary sufficiency asks whether, viewing the evidence in the light most favorable to the prosecution, a rational jury could find the elements proved beyond a reasonable doubt, including intent and attempted robbery.
- When felony murder is predicated on an underlying felony, the predicate felony merges into the felony-murder conviction and cannot stand as a separate conviction and sentence.

## Conclusion

The court upheld Long’s armed assault-with-intent-to-rob and felony-murder convictions and rejected challenges to identification reliability and evidentiary sufficiency, but vacated the attempted-robbery conviction as merged into felony murder and remanded for renewed consideration of whether severance was required to avoid unfair prejudice from a joint trial.


Long v. United States, 687 A.2d 1331 (D.C. 1996)