Byrd v. U.S., 86-98.

• Decision Date: 08 December 1988
• Docket Number: No. 86-308.,No. 86-98.,86-98.,86-308.
• Parties: Gary E. BYRD (No. 86-98) and Terrence A. Lewis (No. 86-308), Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

551 A.2d 96

Gary E. BYRD (No. 86-98) and Terrence A. Lewis (No. 86-308), Appellants, v. UNITED STATES, Appellee.

No. 86-98.

No. 86-308.

District of Columbia Court of Appeals.

Argued January 13, 1988.

Decided December 8, 1988.

Roger A. Durban, Washington, D.C., for appellant Byrd.

Ferris R. Bond, Reston, Va., appointed by the court, for appellant Lewis.

Edith S. Marshall, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, Michael W. Farrell and L. Jackson Thomas, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MACK and BELSON, Associate Judges, and PRYOR, Senior Judge.¹

PRYOR, Senior Judge:

Following a joint jury trial on charges arising out of two separate incidents, appellants Gary Byrd and Terrence Lewis each were convicted of two counts of assault with a dangerous weapon, D.C.Code § 22-502 (1981), one count of assault with intent to kill while armed, id. § 22-501, and two counts of carrying a pistol without a license, id. § 22-3204. In these consolidated appeals, appellants primarily contend that the offenses arising out of the respective incidents were misjoined under Super. Ct.Crim.R. 8(b).² While we agree that the offenses were improperly joined, we conclude that the error was harmless. Accordingly, we affirm all convictions.

I

The government's evidence showed that on January 18, 1984, at approximately 9:00 p.m., James Van proceeded homeward along Lincoln Road, N.E. As he reached the corner of Lincoln Road and Randolph Place, he was approached by two men who asked him for a cigarette. Van replied that he did not have one, and the men then drew guns and announced a robbery. After threatening to shoot him, the assailants threw him down into a lot. They searched his pockets, took about twelve or thirteen dollars, and then shot him three times in his left leg and once in his right leg. At trial, Van testified that one of the guns used by the robbers was steel blue in color, while the other was nickel-plated with a white, possibly pearl, handle.³

Timothy Smith, standing nearby, heard the gunfire and ran up S Street where he saw Van fall to the ground. Smith then ran to the corner of Lincoln Road and S Street and saw two men running toward what he described as a sky-blue Lincoln Versailles with spoke-rim wheels. Although Smith viewed both men only from the back, he recognized one of them as Terrence Lewis.⁴ Later that night, Smith saw the same car at North Capitol and K Streets where it had been stopped by the police, and thought he saw Lewis, although again only viewing him from the back.⁵

That same night, at approximately 10:20 p.m., Odell Hilman, Sylvester Moore, and a young woman named Yetta, were standing at the corner of 4th Street and Rhode Island Avenue, N.E. As Odell exited a convenience store, he bumped into Lewis. Odell then rejoined Moore, and Lewis got into a blue Lincoln Versailles with spokerim wheels. The car drove off but returned fifteen minutes later. Before the car returned, however, Yetta went home, and Odell and Moore were joined by Odell's brother Wayne. When the car finally returned, Byrd, who was sitting in the rear passenger seat, yelled out a question as to the whereabouts of Yetta. Odell responded that Yetta had gone home. Byrd then motioned Odell toward the car. When Odell approached, he recognized Lewis, who was sitting in the front passenger seat, as the same individual he had bumped into earlier. After a brief verbal exchange, Byrd drew a gun and pointed it at Odell. A struggle ensued, and both Byrd and Lewis pulled Odell by his coat until he was pinned against the car. The altercation ended when Byrd pointed the gun at Odell and fired. As the car drove off, Byrd fired two more shots, hitting Wayne in the right arm.⁶

At about midnight, Detective Thomas and his partner Officer Cianciotti spotted a car at the 100 block of Rhode Island Avenue, N.E., which closely matched the description of the vehicle being broadcast as the one used in the Hilman shootings.⁷ As the officers followed the car, it increased speed. In response the officers turned on their emergency siren and red light, but the car did not stop. Finally, the car came to a halt in the middle of the road. As Cianciotti approached, it sped off, but was finally stopped at K and North Capitol Streets with the assistance of several other officers.

When the officers asked both men to identify themselves, Byrd, who was sitting in the driver's seat, produced a license bearing the name of another individual. Lewis, who was sitting in the front passenger seat, also identified himself as someone else. A search of the trunk of the vehicle uncovered two weapons: a silver .32 caliber Colt semi-automatic pistol upon which a palm print of Byrd was found, and a blue, somewhat rusted, .38 caliber Rolm revolver. Ballistics evidence indicated that a .32 caliber shell casing found at the scene of the Van shooting had been fired from the .32 caliber Colt revolver, and that a .38 caliber slug removed from Van had been fired either from the .38 Rolm revolver or an essentially identical type of gun. Odell Hilman testified that the .32 caliber pistol resembled the weapon he was shot with.

At trial, both appellants offered alibi defenses placing them away from the scenes of the incidents at the relevant times.

II

Appellants contend that the charges relating to the first incident were improperly joined with the charges relating to the second, and therefore the trial court erred in denying their motions to sever offenses. Super.Ct.Crim.R. 8(b) permits the joinder of offenses in a multiple defendant case, but only if the offenses "are based on the same act or transaction or series of acts or transactions." Ray v. United States, 472 A.2d 854, 857 (D.C. 1984). Multiple offenses are said to constitute the same act or transaction or series of acts or transactions: "(1) where the offenses are committed to achieve a `specific common end,' (2) `where one offense logically leads to another,' or (3) `where the offenses are part of a common scheme or plan,' and are so closely connected in time or place `that there is necessarily a substantial overlap in proof of the various crimes and it would be difficult to separate proof of one from the other.'" Settles v. United States, 522 A.2d 348, 352 (D.C. 1987) (quoting Davis v. United States, 367 A.2d 1254, 1262 (D.C. 1976)).

On the facts before us we conclude that the two sets of offenses were not based on the same act or transaction or series of acts or transactions and were therefore improperly joined under Rule 8(b). Clearly, there was no specific common end toward which the two sets of offenses were directed. Each incident comprised an isolated event, and neither depended for its furtherance or success upon the other. Id. at 353 (citation omitted). In addition, the Hilman incident was not a continuation of the Van incident and "in no way did it logically or necessarily result from" that incident. Id. Thus, there was "no logical development of or relationship between the offenses." Davis, supra, 367 A.2d at 1263. And, finally, there was not substantial overlap of proof between the two sets of offenses. Although both crimes were very closely connected in time and place, and there existed some overlap of evidence, it was not difficult to separate proof of one crime from that of the other. Settles, supra, 522 A.2d at 353. At trial, the government presented its proof separately and distinctly, and there was no overlap of testimony by a government witness from one incident to the other. Id. at 353-54 (citation omitted). Thus, there did not necessarily exist a substantial overlap of proof between the respective offenses, and, in turn, there was "no evidentiary need for joinder." Id. at 353.

III

We must next determine, however, whether the misjoinder was harmless error. Settles, supra, 522 A.2d at 354 (citing United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)). Misjoinder may be deemed harmless when it does not result in actual prejudice, which is to say "only if it has no `substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 354 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). We have construed this language to mean that "a misjoinder may be deemed harmless only if `all or substantially all of the evidence of one offense would be admissible in a separate trial of the other.'" Id. at 354 (quoting Ray, supra, 472 A.2d at 859 (citations omitted)).⁸ In determining whether offenses are mutually admissible, we apply the principles articulated in Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Drew permits the introduction of other crimes evidence when relevant to motive, intent, absence of mistake or accident, common scheme or plan, or identity, and when the probative force of the evidence outweighs its inherently prejudicial effect. Id. at 16, 331 F.2d at 90. When offenses are mutually admissible, "there can be no danger of prejudice in trying the cases together rather than separately `because in either event the jury will hear all about both crimes.'" Settles, supra, 522 A.2d at 354 (citation omitted). Joinder is then permitted "despite [the presumptive] possibility of prejudice due to the cumulation of evidence against the defendants, because it will `promote economy and efficiency and . . . avoid a multiplicity of trials.'" Ray, supra, 472 A.2d at 859 (quoting Davis, supra, 367 A.2d at 1263).

Upon review of the record, we conclude that evidence of either crime would have been admissible in a separate trial of the other in order to corroborate the circumstantial evidence pointing to the participation of appellants as the perpetrators of both crimes. Thus, in effect, the core issue is one of identification.

The first step in the analysis is to focus on the logical relevance issue in depth in order to...