Bowyer v. United States

• Decision Date: 06 October 1980
• Docket Number: No. 79-99.,79-99.
• Parties: Ronald S. BOWYER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

422 A.2d 973

Ronald S. BOWYER, Appellant, v. UNITED STATES, Appellee.

No. 79-99.

District of Columbia Court of Appeals.

Argued April 9, 1980.

Decided October 6, 1980.

Marshall H. Fishman (LS # 2411), law student counsel, with whom Michael E. Geltner, Washington, D. C., Supervising Atty., was on brief, for appellant.

Christopher A. Myers, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee. Paul L. Knight, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Before KELLY, NEBEKER and PRYOR, Associate Judges.

PRYOR, Associate Judge:

In April 1978, a grand jury returned a nine count indictment charging appellant with rape while armed of Melody Williamson in November 1975; armed robbery of Barbara Clark, May 19, 1977; first-degree murder while armed of Gwendolyn Baker, May 30, 1977; rape while armed and armed robbery of Linda Johnson, May 31, 1977; rape while armed of Karen Jones, June 5, 1977; sodomy, rape while armed and assault with intent to commit robbery while armed of Linda Jackson between June 11 and July 4, 1977.¹

Following a jury trial, appellant was found guilty of rape while armed of Melody Williamson, armed robbery of Barbara Clark; and rape while armed and armed robbery of Linda Johnson. Appellant was found not guilty of first-degree murder while armed of Gwendolyn Baker. The jury was unable to reach a verdict as to the remaining counts. At the motion of appellant, a mistrial was declared as to the remaining offenses, and subsequently, upon motion of the government, those counts were dismissed. The court imposed consecutive sentences of seven to twenty-one years for each conviction of rape while armed and three to ten years for each armed robbery conviction. This appeal followed.

Appellant urges reversal of the convictions on the grounds that (1) the trial court abused its discretion in denying appellant's motion for severance; (2) the retention of alternate jurors after the jury retired to deliberate constituted reversible error; (3) appellant was entitled to a pre-Arnold² corroboration instruction concerning the Williamson rape; (4) it was error for the trial court to fail to impose sanctions pursuant to the Jencks Act (18 U.S.C. § 3500 (1970)) with regard to the government's nonproduction of notes taken by a detective who appeared at trial as a witness for the government; and (5) the government failed to establish sufficiently the chain of custody with respect to the bullet alleged to have caused the death of one of the victims.³ We affirm in part and reverse in part.

I

The evidence presented by the government consisted primarily of the testimony of five complaining witnesses, all of whom were admitted prostitutes. Each was the victim of a sexual assault under circumstances similar in nature. All of the crimes occurred in the early hours of the morning in secluded areas of the 14th Street corridor of the city. In each instance, the victim was lured or abducted into an automobile which was dark blue in color. In each case, the assailant was described as having a pockmarked face and armed with a gun. On each occasion, the assailant created fear in the mind of the victim by feigning despair and/or referring to his criminal background and past acts of violence. Lastly, in each instance care was taken to avoid identification after release of the complainant.

The trial testimony of the witnesses, including identification of appellant, was supplemented by the work of police investigators. It was shown, among other things, that appellant and his wife owned a blue Thunderbird automobile matching the description given by the complainants. The license plate was the same as that reported by one of the victims. Additionally, there was testimony that appellant owned and carried a gun similar to the one described by the government witnesses.

II SEVERANCE

Appellant places considerable reliance upon his assertion that the court erred in failing to grant his motion for severance. In this regard, it is necessary to recount to some degree the nature of the evidence presented.

Melody Williamson testified that early in the morning on November 4, 1975, as she walked down Eighth Street, N.W., between L and M Streets, she was approached by appellant with whom she had previously engaged in sexual acts for money. She got into the car appellant was driving and was driven by him to a parking lot. Once there, appellant informed Williamson that he had no money. He nonetheless demanded that she have sexual relations with him. Williamson declined. Appellant then pointed a gun at Williamson and indicated his willingness to use it. Appellant told Williamson that he had been in jail, that his woman friend had deserted him, and that he had nothing to live for. He then ordered Williamson to take one leg out of her pants and underwear. At gunpoint, she complied. Appellant placed a gun against her vagina and threatened to "blow it out." He raped her and then drove to an alley near Seventh and M Streets and let her out.

Williamson noted the license number on the car appellant was driving. A WALES check by the police traced the car to appellant. Her description to the police of her assailant was that he was five feet nine inches to six feet tall, light skinned, with black marks on his face.

Barbara Clark testified that on May 19, 1977, while plying her trade on 14th and N Streets, N.W., at approximately 4:00 a. m., she was approached by a person she identified as appellant, driving a fairly new blue Thunderbird. After agreeing on a price of $20.00, Clark got into the car appellant was driving and was taken by him to the parking lot. Once there, appellant pulled a gun on Clark but gave her $50.00. At that moment, appellant saw a security guard and drove on. At Ninth and Berry Streets he had relations with Clark, then demanded return of the $50.00. He then told Clark that he had just been released from jail. Appellant demanded and received all of Clark's money. Clark was then driven by appellant to an alley near 12th and S Streets where appellant placed a napkin over his front license plate, then released Clark after ordering her to run because he wanted "to kill somebody."

Clark described her assailant to the police as having pockmarks on his face and not a "real dark" complexion.

Shirley Coleman testified that on the evening of May 30, 1977, while sitting in a car on the corner of 14th and N Streets, N.W., she observed Gwendolyn Baker on the corner of the same street, talking with a black male, approximately 30 years old, with pockmarks on his face. Ms. Baker and the man conversed for approximately 10 minutes, then the man walked away. Shortly thereafter, the man returned in a dark car.⁴ Ms. Baker entered the car after conversing with the man momentarily. They then drove up 14th Street to Vermont Avenue, where the car turned.

Coleman waited for Baker for a while. When she didn't return, Coleman left. Approximately 20 to 30 minutes later, Coleman returned and saw a woman, later identified as Baker, lying in the street.

Linda Johnson's testimony was that at approximately 4:00 a. m. on May 31, 1977, she was walking near Logan Circle when appellant drove up in a blue Thunderbird and approached her. A price of $20.00 was agreed upon for fellatio. She got into the car and appellant gave her $20.00. While the sexual act was being performed, appellant produced a gun. At a later point, appellant had intercourse with Johnson. When appellant concluded, he then demanded all of her money, but returned $30.00. He told Johnson that he shot a woman a week before who had gotten "cute and smart." He also told her that he had been released from jail two months earlier. Appellant expressed fear in allowing Johnson to leave the car because she might see his license plates. At her suggestion, he backed into an alley and allowed the complainant to leave the car in that manner. Nonetheless, she noted the first two letters of his license plate and later reported it to the police.

Karen Jones testified that early in the morning on June 5, 1977, while waiting for her husband on the corner of Ninth and M Streets, N.W., appellant drove up in a blue Thunderbird and asked for directions. When Jones bent down to give the directions, appellant pulled a gun on her and ordered her to get into the car. Appellant drove to a parking lot on Ninth Street between M and N Streets, N.W., where he ordered Jones to remove one leg from her shorts and underpants. Appellant then got on top of Jones in the front seat of the car and forcibly had intercourse with her. Later appellant drove Jones to Sixth and 0 Streets and told her to get out of the car and ordered her not to look back at the car or he would kill her.

Karen Jones' husband testified that he observed his wife get into a blue Cougar or Thunderbird and noted the tag number.

Linda Jackson testified that at about 4:00 a. m. in July 1977, while at the corner of 13th and N Streets, N.W., a man driving a dark blue Thunderbird approached her and requested a date. A price of $30.00 having been agreed upon, Jackson got into the car. Once inside the car, appellant locked the car doors, pulled a gun from his side, put it under her dress and threatened to harm her if she didn't cooperate. He informed her that he had killed before and was not hesitant about doing it again. He then ordered Jackson to perform certain sexual acts. Afterwards, appellant ordered Jackson to get out of the car and threatened to shoot her if she looked back to get his license plate number.

In general, an accused may seek relief from a joinder of charges of similar character if it is likely that the jury could become confused or prejudiced to the detriment of the defendant. Thus, the prosecution cannot, merely by introducing evidence of other crimes, attempt to show the...