Arnold v. United States

• Decision Date: 31 March 1982
• Docket Number: No. 80-1077.,80-1077.
• Citation: 443 A.2d 1318
• Parties: Thomas ARNOLD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

443 A.2d 1318

Thomas ARNOLD, Appellant, v. UNITED STATES, Appellee.

No. 80-1077.

District of Columbia Court of Appeals.

Argued October 15, 1981.^*

Decided March 31, 1982.

Robert Mark Greenspan, Baltimore, Md., appointed by this court, for appellant.

John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry and Cary M. Feldman, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before KELLY, KERN and NEBEKER, Associate Judges.

KERN, Associate Judge:

Following a jury trial, appellant was convicted of one count of second-degree burglary, D.C.Code 1973, § 22-1801(b); attempted second-degree burglary and one count of destruction of property, D.C.Code 1973, § 22-403.

The record reflects that after the jury was impaneled but before they were sworn, the government filed enhanced penalty papers under D.C.Code 1973, § 22-104(a), since appellant had been convicted for four previous felonies.¹ In addition, the government filed an information indicating that appellant had committed two of the originally charged offenses while on release pending trial and that, upon conviction in the present case, he would be subject to the increased punishment permitted under D.C. Code 1973, § 23-1328. Finally, the government filed a third information under D.C. Code 1973, § 22-104 indicating that appellant was subject to additional penalties upon conviction as a second offender.²

Appellant now raises three challenges on appeal. First, he claims that the motions judge improperly denied his pretrial motion under Super.Ct.Cr.R. 14 to sever the counts arising from two separate burglary incidents. Next, appellant argues that the enhanced penalty papers were untimely filed in violation of D.C.Code 1973, § 23-111(a)(1) because the government submitted them after the jury had been selected but before they were sworn. This section requires that such papers be filed with the clerk of the court "prior to trial." Finally, appellant urges that the case be remanded for resentencing in accordance with D.C. Code 1973, § 23-111(b), since the trial judge failed to ask appellant whether he affirmed or denied that he had been previously convicted and failed to inform him that any challenge to a prior conviction which was not made before the sentence was imposed could not thereafter be raised to attack the sentence. As to this contention, the government concedes that the trial judge erred in giving appellant an enhanced sentence for attempted burglary in violation of D.C.Code 1973, § 23-111(b) and agrees that the case should be remanded in this respect.³ Thus, we must address only appellant's remaining two challenges.

I

This appeal followed a prosecution on an

indictment charging appellant with two counts of second-degree burglary, two

counts of destruction of property, and one count of petit larceny arising from two separate incidents. Appellant filed a motion to sever the first three counts of the indictment, which charged offenses occurring on March 17, 1979, from the last two counts, which charged offenses on July 26, 1979.

On both occasions, the silent alarm at Sarge's Liquor Post at 2746 14th Street, N.W. had been triggered at approximately 4:30 a. m. by a break-in at the rear of the store. In his motion seeking severance for prejudicial joinder under Super.Ct.Cr.R. 14, appellant asserted the jury would unfairly cumulate the evidence and find him guilty if these two incidents were joined for trial.

On February 12, 1980, Judge Mencher held a hearing to determine appellant's motion. The government presented evidence that the same store had been the target on both occasions, that the incidents were separated by only four months, that the breakins had occurred at around 4:30 a. m., and that the same method of entry was used each time. At this hearing, appellant vigorously disputed the government's assertion that both incidents involved the removal of bricks from beneath a window in the rear of the store. Appellant argued that a window had been used as the method of entry in the first incident, while bricks beneath this window had been broken and chipped away during the second break-in. The record revealed that the window itself had been bricked up previous to the second incident. After hearing argument, the court denied appellant's motion to sever on several legal bases.⁴ A jury trial before Judge Kessler commenced on June 23, 1980, and at its conclusion, the jury found appellant guilty of the previously mentioned charges.

II

Appellant first claims that the motions judge improperly denied his pretrial motion to sever the counts arising from the two separate incidents under Super.Ct.Cr.R. 14.⁵ Appellant did not contend at any time that the offenses had been improperly joined initially under Super.Ct.Cr.R. 8(a).⁶ Appellant's argument is two-fold: first, he claims that the motions judge could not have properly exercised his discretion because, at the time of the motion, the government mistakenly and misleadingly indicated that the suspect had entered through a broken brick wall in both incidents whereas proof at trial indicated that a window had been used for entry during the March 17 episode. Second, appellant raises the classic prejudicial joinder arguments discussed in Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), and its progeny. For the reasons discussed below, we find that appellant's challenges are meritless and that the motions judge properly denied appellant's pretrial motion for severance.

A. The record of the pretrial severance hearing establishes that Judge Mencher considered all aspects of each incident in rendering his judgment. He recognized that the same location at almost the exact same time, between 4:30 and 4:45 a. m., had been broken into. He also indicated that the incidents were not remote in time, since they were only four months apart, citing United States v. Arroyo-Angulo, 580 F.2d 1137, 1149 (2d Cir. 1978) (nine months between crimes not remote). While properly joined as "similar crimes" under Rule 8(a), Judge Mencher concluded that the offenses were separable by simple and distinct proof, citing Drew v. United States, supra.

Furthermore, Judge Mencher concluded that evidence of these crimes would be "mutually admissible" in separate trials, and that, under Crisafi v. United States, D.C.App., 383 A.2d 1, cert. denied, 439 U.S. 931, 99 S.Ct. 322, 58 L.Ed.2d 326 (1978), there is no prejudicial joinder in such a situation. Finally, Judge Mencher was well aware of the guidelines established in Samuels v. United States, D.C.App., 385 A.2d 16 (1978), that the exercise of discretion "involves weighing the prejudice to the defendant caused by joinder against the obviously important consideration of economy and expedition and judicial administration." After examining all factual and legal arguments, Judge Mencher denied appellant's request for severance.

Appellant argues that the government's misrepresentation of the method of entry in the first incident prevented Judge Mencher from properly exercising his discretion. The record reveals that the Judge accepted the government's proffer on this point.

In both instances, from what I can gather from the pleadings is that in the March 17 incident a brick wall underneath the window of the store had been broken out. That is the proffer on March 17 [sic] incident. [Record at 453.]

The police officers' testimony at trial revealed that a window with bars had been broken and the bars removed during the March 17 break-in. It was the window, and not the brick wall, that had served as the method of entry on this date. Although the motions judge relied upon faulty information as to the single aspect of method of entry, we conclude that this did not prevent the proper exercise of his discretion in light of the sufficiency and accuracy of the remaining proof offered at the pretrial hearing when compared with the ultimate facts presented at trial.

As discussed earlier, the record of the pretrial hearing illustrates that the method of entry was only one of the many factors considered by Judge Mencher when discussing the similarity of the crimes. Defense counsel pointed out on two separate occasions that there was a factual dispute as to the exact method of entry, and that the defense contended that the first entry involved a window rather than a broken brick wall. Although in rendering his judgment the motions judge stated that the method of entry in the March 17 incident was through a brick wall, the judge indicated that he was placing a greater emphasis upon the facts that the same store was involved at the same time in the early morning. Furthermore, the proof at trial established that the attempted method of entry during the second incident of July 26 was by a broken brick wall directly below the window used in the first crime. The window used in the March 17 break-in had been bricked up shortly after the first crime as a preventive measure.

The final evidence presented at trial did not so greatly deviate from that proffered at the pretrial severance hearing so as to blemish that proceeding. We find that the incorrect information concerning the method of entry played a minor role in Judge Mencher's ultimate decision and that this did not preclude him from properly exercising his discretion in ruling upon appellant's pretrial motion for severance.

B. Appellant next asserts the classic prejudicial joinder arguments in challenging the denial of his pretrial motion for severance. This court has consistently held that there is a presumption in favor of joinder because joint trials "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial." Carpenter v. United States, D.C.App., 430 A.2d 496, 502 (1981); Johnson v. United States, D.C.App., 398 A.2d 354, 367 (1979)....