Arnold v. United States

• Decision Date: 18 June 1986
• Docket Number: No. 84-1259.,84-1259.
• Citation: 511 A.2d 399
• Parties: James E. ARNOLD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 399

511 A.2d 399

James E. ARNOLD, Appellant, v. UNITED STATES, Appellee.

No. 84-1259.

District of Columbia Court of Appeals.

Argued September 13, 1985.

Decided June 18, 1986.

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Mark Rochon, Public Defender Service, with whom James Klein and Mark Carlin, Public Defender Service, Washington, D.C., were on brief, for appellant.

Kenneth J. Melilli, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before NEBEKER, TERRY and ROGERS, Associate Judges.

TERRY, Associate Judge:

This case arose from two incidents that occurred in the early morning hours of May 22, 1983. Three people were robbed at gunpoint as they left Gallagher's Pub on Connecticut Avenue, N.W., between 2:00 and 2:45 a.m. Then, at 3:40 a.m., near 14th and Chapin Streets, N.W., there was either an armed robbery or a dispute over a drug transaction, depending on whom one believed. When appellant was arrested immediately after the Chapin Street incident, he had in his possession part of the proceeds of the Connecticut Avenue robbery.

Following a jury trial, appellant was convicted of five counts of armed robbery,¹ three counts of assault with intent to commit robbery while armed,² one count of assault with intent to kill while armed,³ one count of assault with a dangerous weapon,⁴ and one count of carrying a pistol without a license.⁵ Appellant asserts four grounds for reversal. He contends that the trial court erred in refusing to sever the charges relating to the Connecticut Avenue incident from the charges relating to the Chapin Street incident; that the prosecutor's examination of several government witnesses and her closing argument constituted misconduct which resulted in substantial prejudice to the defense; that the prosecutor made an improper missing witness argument which substantially prejudiced his defense to the Connecticut Avenue charges; and that the trial court abused its discretion in refusing to poll the jurors individually as to each count. Although we are disturbed by some of the prosecutor's actions, we find no reversible error; hence we affirm all of the convictions.

I

A. The Connecticut Avenue Incident

Peter Stein, Stephen Brickel, and Carol Wyrick were robbed shortly after leaving Gallagher's Pub. They were walking north in the 3600 block of Connecticut Avenue when two men approached and announced a stick-up. One of the men had a big gun; the other—later identified as appellant— had two guns. The robbers took $40 from Stein and also took Wyrick's pocketbook, which contained, among other things, a brown cloth pouch and two pairs of earrings. At one point Stein was hit over the head by one of the robbers. Throughout the robbery the gunmen told the victims to keep their heads down. Stein did so, but Wyrick kept looking up every time one of the robbers spoke. After the robbers made their getaway in a white car with a dark top, the three victims flagged down a passing police cruiser to report what had happened.

The next day Stein and Wyrick looked at an array of photographs which included appellant's picture. Wyrick made no identification, but Stein picked out the photograph of appellant and said he believed that it depicted the robber with two guns. At trial Brickel testified that he too was shown photographs by Detective Robert Raffety and that he picked out one photograph; Detective Raffety, however, testified that he did not show any photographs to Brickel. All three victims failed to identify appellant in a lineup conducted on June 1, ten days after the robbery.

B. The Chapin Street Incident

Two witnesses, Catherine Shaw and Mona Lisa Showell, testified that appellant and another man approached Maurice Lee, Tyrone Stewart, Joseph Harrison, and a fourth man whose name they did not know, and asked about purchasing some marijuana. Appellant and his companion then pulled guns and ordered the four men to lie face down on the ground. They took money from Harrison, keys from Lee, money and chains from Stewart, and money and keys from the fourth man. Showell and Shaw were also ordered to lie on the ground. While all this was going on, one of the robbers struck Stewart in the head with his gun.

At about that time, Philip Cheseman and his girl friend, Patrice Davage, were driving along Chapin Street, on their way home after having just purchased some marijuana. Cheseman attempted to stop the robbery and exchanged shots with the robbers, who also fired several shots in the direction of the victims as they lay on the ground. The robbers ran west on Chapin Street. Cheseman chased them briefly, but then returned to the scene of the robbery to await the police.

When the police arrived, they spoke to some of the victims, who managed to describe only one of the robbers. Appellant, who matched the description, was arrested a short time later coming out of a nearby park. He did not resist or run. He had no weapons, little money, and no proceeds from the second robbery, but he did have in his possession the brown pouch and two pairs of earrings which had been taken from Carol Wyrick an hour earlier. Appellant told Detective Raffety that the earrings were his. The police conducted an immediate show-up, and Cheseman identified appellant as one of the robbers.

About two months after the robbery, on July 18, Detective Raffety showed a photograph of the June 1 lineup to Catherine Shaw, who picked out two men, neither of whom was appellant. On June 25, 1984, almost a year later, Raffety showed Shaw an array of photographs, and Shaw identified appellant's photograph as depicting one of the two robbers. She also identified him in court.

C. Appellant's Defense

With regard to the Connecticut Avenue robbery, appellant's defense was alibi and misidentification. As to the Chapin Street incident, the defense was that the complainants had fabricated their story about a robbery to cover up their armed assault on appellant after a dispute over a drug deal.

Bobbi Jean White, appellant's girl friend at the time of the incidents, and Pamela Leysath, White's sister, testified that they spent the evening and early morning of May 21-22 with appellant. The three of them went to a party at appellant's brother's house from 10:30 p.m. until 2:00 or 2:30 a.m. They then left and drove in a white Mercedes to 14th Street near V Street in order to get some ice cream. As they walked from the car, White saw a pouch lying in the street. She picked it up, opened it, and found some earrings inside. Since her dress had no pockets, she gave it to appellant to hold for her.

As they were all walking back to the car after buying the ice cream, appellant stopped to talk to a man standing in a group with some other people. He bought some marijuana from that man, but after examining it, he was not satisfied with it. The two men became involved in an argument, which escalated into a fight; then gunshots were fired. Appellant ran from the group, heading west on Chapin Street. White and Leysath were extremely upset and frightened, so they left (without waiting for appellant) and drove to White's house, where they learned that appellant had been arrested. Neither of the women saw appellant with a gun at any time that night.

II

Appellant contends that the trial court abused its discretion by denying his motion to sever the counts relating to the first robbery from the counts relating to the second robbery. We find no abuse of discretion.

In the District of Columbia, joint trial of offenses properly joined⁶ is favored because it "expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burdens upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once." Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968) (footnote omitted), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969), quoted with approval in Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979). This court has "consistently recognized a presumption in favor of joinder of offenses of a similar character. . . ." Robinson v. United States, 452 A.2d 354, 358 (D.C. 1982) (citation omitted). "Only when a defendant cannot receive a fair trial should a severance be ordered." Baxter v. United States, 352 A.2d 383, 385 (D.C. 1976).

A motion for severance on the ground of prejudicial joinder is committed to the sound discretion of the trial court. The denial of such a motion will not be reversed on appeal unless the defendant can convince this court that there was a clear abuse of that discretion. Leasure v. United States, 458 A.2d 726, 728-729 (D.C. 1983); Strickland v. United States, 389 A.2d 1325, 1332 (D.C. 1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 481 (1979). To meet that burden, the defendant "must show `the most compelling prejudice' . . . from which `the court would be unable to afford protection' if both offenses were tried together. . . . It is not sufficient to show that the defendant would have a better chance of acquittal if the charges were tried separately." Winestock v. United States, 429 A.2d 519, 527 (D.C. 1981) (citations omitted).

When joinder is based on the "similar character" of the offenses,⁷ "a motion to sever should be granted unless (1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others." Bridges v. United States, 381 A.2d 1073, 1075 (D.C. 1977) (emphasis added; citations omitted), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978). This means that if the denial of severance can be sustained...