Bright v. US, 95-CF-1569.

• Decision Date: 31 July 1997
• Docket Number: No. 95-CF-1569.,95-CF-1569.
• Citation: 698 A.2d 450
• Parties: Calvin Stevenson BRIGHT, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

698 A.2d 450

Calvin Stevenson BRIGHT, Appellant, v.UNITED STATES, Appellee.

No. 95-CF-1569.

District of Columbia Court of Appeals.

Argued June 24, 1997.

Decided July 31, 1997.

Tanya Chutkan, Public Defender Service, with whom James Klein, Public Defender Service, and Gretchen Franklin, Public Defender Service, were on the brief, for appellant.

Colleen Covell, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, and Kenneth C. Kohl, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL and REID, Associate Judges, and PRYOR, Senior Judge.

REID, Associate Judge:

After a jury trial in June 1995, appellantCalvin Bright was convicted of two counts of murder in the first degree while armed (premeditated), in violation of D.C.Code §§ 22-2401, -3202 (1996); carrying a pistol without a license, in violation of D.C.Code § 22-3204(b); and unlawful possession of ammunition, in violation of D.C.Code § 6-2361(3)(1995).¹He filed a timely appeal, challenging several rulings of the trial court.We reverse Bright's ammunition conviction and affirm the judgment of the trial court in all other respects.

FACTUAL SUMMARY

An eyewitness, John Boatwright, saw Bright grab, hold and shoot Tammy Peay in the head around 4:30 a.m. on July 24, 1994, near Central Place and Gallaudet Street, N.E.Another eyewitness, Dephanie Jordan, was with Boatwright and heard gunshots as she saw Bright, whom she had known from the neighborhood for four or five years, holding and hugging the victim.Both eyewitnesses watched as Bright pursued William "Tink" Ramsey who had been with Peay.Ramsey's leg was in a cast and he was on crutches as he tried to elude Bright's pursuit.Bright fired three or four shots at Ramsey and then rode away on a bicycle.

Both eyewitnesses got a clear look at Bright.Although it was still dark, street lights were on.Jordan "looked Bright dead in the face," and later identified him both from a police photo array and in court.She was "one hundred percent sure" that Bright was the person who committed the murders.²Boatwright, who admitted taking drugs six hours earlier on the night of the murders, also identified Bright from a police array and in court, even though he initially told the Grand Jury that he could not see the perpetrator's face because it was dark outside.³

On July 29, 1994, five days after the murders of Peay and Ramsey, the police executed a search warrant at an apartment in the 1800 block of Providence Street, N.E., where Bright resided with Raymond Belzer.Both men were present when the police arrived.At the time of the murders, Bright had stayed at the apartment for about a year and a half and slept in the living room.The police seized a .38 round of ammunition from a bookshelf in the living room, as well as clothing and a key to the apartment, which the police found in the front pocket of Bright's pants.The round of ammunition formed the basis of Bright's conviction for the single count of possession of ammunition charged.Although the round of ammunition seized fit a .38 caliber gun, it did not have the same mark as the shell casings found on the ground near the victims' bodies.These bore the mark "WIN" on the bottom.⁴

Bright was arrested three weeks after the murders while he was riding a bicycle down the street from the murder scene.The police conducted a second search of the apartment where Bright stayed and found personal papers and postmarked envelopes with his name on the bookshelf in the living room where he slept.

At trial, the government presented the testimony of Donald Johnson, who also stayed at the Providence Street apartment.Johnson said he heard Bright mention one of the victim's names (Ramsey) on two or three occasions prior to the murders.In late March, he heard Bright complaining that Ramsey owed him "some money or something" and that he, Bright, was going to "f__k Ramsey up ... mess Ramsey up."However, Johnson also testified that Bright would utter similar words when he became angry with someone.

Bright presented only two witnesses in his behalf, two police officers who performed official duties at the crime scene.In relation to his misidentification defense, he sought to use their testimony to cast doubt on the testimony of eyewitnesses Jordan and Boatwright by showing that there was no gray van at the scene of the crimes on July 24, 1994.Jordan testified that she was standing next to a gray van when Bright began shooting.One officer could not remember the types of vehicles parked on the street that night; the other officer stated that no van was parked at the scene while she was there.

Bright raises several challenges to his convictions.We focus only on two of his contentions.

ANALYSIS

The Severance Issue

Bright asserts that under Super.Ct.Crim. R. 14, the charge of unlawful possession of ammunition should have been severed from the other charged offenses.⁵We agree but reverse only his ammunition possession conviction.

Bright claims that "evidence of the July 29 ammunition possession was irrelevant to the July 24 murder, and vice versa."He also maintains that the murders and the ammunition possession were not "closely connected in time," and the ammunition found in the Providence Street apartment "was of a different brand than the ammunition used in the shooting."Further, he argues, "evidence of each crime would be inadmissible in a separate trial of the other crime" because it does not fall within one of the exceptions articulated in Drew v. United States,118 U.S.App. D.C. 11, 16, 331 F.2d 85, 90(1964)(other crimes evidence may be admitted to show motive, intent, absence of mistake or accident, a common scheme or plan, or identity).

The government contends that the trial court did not abuse its discretion in denying Bright's motion for severance, and the evidence of each offense would have been mutually admissible in separate trials.Moreover, possession of the ammunition evidence constituted "direct and substantial proof" of Bright's involvement in the murders of Peay and Ramsey.In addition, in a separate trial involving the ammunition charge, the probative value of the murder evidence would not be "`substantially outweighed' by its prejudicial effect."Finally, the government asserts, because the trial court kept the evidence of each crime separate and distinct, and instructed the jury to consider it separately, there was no prejudice.

"A motion for severance on the ground of prejudicial joinder is committed to the sound discretion of the trial court."Arnold v. United States,511 A.2d 399, 404(D.C.1986).We"will reverse the denial of a motion to sever counts under Super. Ct.Crim. R. 14 only upon a clear showing of abuse of discretion."Parks v. United States,656 A.2d 1137, 1139(D.C.1995)(referencing Winestock v. United States,429 A.2d 519, 526(D.C.1981)).To meet his or her burden under Rule 14, a 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."Arnold, supra,511 A.2d at 404(quotingWinestock, supra,429 A.2d at 527).Furthermore,

When joinder is based on the "similar character" of the offenses, "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."

Id.(citation omitted; footnote omitted).

Mutual Admissibility of the Crimes In Separate Trials

While considering Bright's motion to sever under Rule 14 and the issue of admissibility of the murder evidence in the ammunition possession trial, the trial court asked the government whether it was "seeking to try it, as mutually admissible evidence of each crime or as to this particular offense being separate and distinct."The trial court added its own view that "it would be difficult, I guess, to try it separate and distinct in light of the Court's previous ruling that you can use the ammunition to establish the means of — the Defendant's means of access to or possession of the .380-caliber pistol."Although the government expressed the view that both grounds could be relied on, in denying the motion for severance under Super.Ct.Crim. R. 14, the trial court stated:

I believe that the evidence of the Defendant's possession of a .380-caliber weapon, which the government seeks to establish through its evidence of the murder and the carrying a pistol without a license charge, possession of a firearm during a crime of violence charge, would be probative on the issue of intent as to possessing the .380-caliber ammunition four days later on July 29.It would be mutually admissible at trial.

Now, as to its probativeness, I think the Court maybe could weigh the effect — the prejudicial effect of it and the Court, within its discretion, could or may not allow it in, given the fact that evidence of the murder in a separate trial for possession of ammunition may be highly prejudicial; but I still think evidence that will come in on the murder charge establishing that he possessed a .380-caliber pistol would be probative to establish possession or intent, intent or knowledge of the ammunition recovered July 29.So I'm going to deny the motion for severance on Rule 14 grounds.⁶

Thus, the trial court rested its determination of no prejudice on the mutual admissibility of the evidence in separate trials on the ammunition and murder charges, rather than on the ground that "the evidence as to each offense would be kept separate and distinct, and thus would be unlikely to be amalgamated in the jury's mind into a single...