Cox v. United States, 82-830.

• Decision Date: 19 September 1985
• Docket Number: No. 82-830.,82-830.
• Citation: 498 A.2d 231
• Parties: James Earl COX, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

498 A.2d 231

James Earl COX, Appellant, v. UNITED STATES, Appellee.

No. 82-830.

District of Columbia Court of Appeals.

Argued October 30, 1984.

Decided September 19, 1985.

Mark S. Carlin, Public Defender Service, Washington, D.C., with whom James Klein and Susan L. Schneider, Public Defender Service, Washington, D.C., were on the briefs, for appellant.

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

Before NEWMAN, BELSON and ROGERS, Associate Judges.

BELSON, Associate Judge:

A jury found appellant guilty of eight counts arising out of two separate sexual assaults and his later possession of a weapon.¹ Appellant challenges his convictions relating to the first two incidents on the grounds that the trial judge improperly refused to sever the counts arising respectively from the two sexual assault incidents and that the prosecutor's closing argument denied appellant his right to a fair trial. We affirm.

I

We will set forth the facts in some detail because we will later weigh the evidence of guilt as part of a harmless error analysis. The first complainant was walking along Fort Davis Drive, S.E., through wooded parkland at about 2:30 p.m. on October 26, 1981. After walking for approximately 10 minutes, complainant noticed a man on the same side of the street. When she first observed the man, she was 20 to 30 feet from him and she looked directly at his face. Complainant crossed to the other side of the street. She noticed that the man turned his back to her in a "jittery" motion. The man then ran across the street toward complainant. Again complainant looked directly into his face. When he reached her, she found herself staring into his face from a distance of about 2 feet. In all, complainant looked directly at the man for about 15 seconds. The man grabbed complainant from her right side, and put a gun to her side. He then pulled her back across the street and pushed her into the woods. The man demanded that complainant hand over her money and he removed her watch and rings. He tied her hands behind her back with a rope.

Her assailant forced complainant to walk farther into the woods, with her back towards him. He untied her hands and directed her to remove her clothes, so that he "could get away." Upon his command, complainant lay face down on the ground. The man instructed her not to look at him, and he put a sweater over her face. He then gave her a choice between committing oral sodomy on him or being raped. She did the former, but he nevertheless proceeded to rape her with her sweater over her face. During the rape, complainant was able to see part of the man's face for about a second when the sweater over her face moved.

The man then stood up, telling complainant to wait 10 minutes before she left. Moments later, however, the man returned and again sodomized and raped complainant. He left again, repeating the warning that complainant wait 10 minutes. Complainant, after waiting as instructed, dressed and walked back to the road where she soon thereafter flagged down a passing police car.

Complainant described her assailant as a black male, 27 to 28 years old, 5'10" to 6' tall, 155 to 165 pounds, thin, with a mustache, wearing a puffy, down-type jacket, which was brown or tannish, and carrying a small handgun.

Complainant's sister, on the day of the assault, had watched from her home as complainant walked down Fort Davis Drive. She noticed a car slowing down as it approached her sister, and again slowing down after it passed her. Complainant's sister was concerned for her sister's safety because she considered it unusual that a car would slow down twice within a short distance. Complainant's sister described that car as "brownish-greenish" with a very dull finish. It was an older two-door, similar to an Oldsmobile 442, with a dark interior. Only the driver's seat was occupied.

The second rape occurred on the evening of October 28, 1981. The second complainant was walking home from a bus stop on Southern Avenue, S.E., about one mile from where the first rape had occurred, when a man stuck a small black revolver to her side and announced a stick-up. The man forced complainant into his parked car. Complainant lay face down as directed on the back seat. She did not look up because the man said he would shoot her if she did. The man drove complainant to a spot in a wooded area off of a road. He told her to take off her clothes so he could check them for money. The man discovered that complainant only had a small amount of change, and threw it in the back seat. He climbed into the back seat, placed complainant's pants over her eyes, and raped her. At one point, the man put the gun to complainant's head to quiet her. After the rape, the man opened the passenger-side door and told complainant to get out. He instructed her to keep walking toward the woods until she heard his car pull off. She did so, then returned to the road, and eventually found someone who called the police. The park police met complainant at Fort Dupont Park, the scene of the rape.

The complainant told the police that the man who raped her wore an insulated "down" jacket, pants, black shoes, and skull cap. He was black, 5'10" to 6' tall, medium build, and 27 to 28 years old. She also said that the car in which she had been raped was a dirty, two-toned American car, which was at least 10 years old. The bottom of the car appeared to be brown and the top was of a dark vinyl material. The car had a dark interior and bucket seats with a console between them. Complainant also noticed a white license tag with the number 3 lying face down on the back seat floor of the passenger side of the car.

Less than 2 weeks later, Park Police detectives, sighted appellant in a two-door, "olive-brown" Oldsmobile Cutlass with a black vinyl roof at Southern Avenue and Marlboro Pike, one block from where the second complainant had been abducted. Appellant matched the general descriptions given by both complainants. Appellant, after speeding off and running a red light, was stopped by the detectives. One of the detectives noticed a rope hanging from appellant's jacket, and asked him to follow the detective to Park Police headquarters. At headquarters, appellant agreed to a search of his car. The Police retrieved a .32 caliber loaded pistol, and found a white license plate, numbered "HR 5033" lying face down behind the passenger seat. Appellant was then arrested.

The first complainant picked appellant's photograph from an array of eight photographs the day after appellant was arrested. On November 18, 1981, she identified appellant from a lineup. She identified appellant at trial, stating that she had no doubt in her mind that he was her assailant. The first complainant also indicated that the gun found in appellant's car looked like the gun used during the rape and robbery, that the jacket appellant was wearing when he was arrested looked exactly like the hooded, brown, puffy jacket worn by her assailant, and the rope found on appellant was the same length and type of rope used to tie her hands.

The first complainant's sister selected appellant's car from approximately 18 cars parked in the impoundment lot, as looking similar to the car she saw from her window the day her sister was raped.

The second complainant, in contrast, explained that she did not think she would recognize her assailant if she saw him again because she had only glanced at him when he walked toward her on the sidewalk, he had later covered her eyes, and had threatened to kill her if she looked at him. Thus, she was not able to identify appellant at the lineup and she did not make an in-court identification.

The second complainant was able, however, to identify the car in which she was raped. She selected two photographs of appellant's car, shown to her by the police, and also identified appellant's car at the police impoundment lot. She also identified the gun taken from appellant on November 18 as the gun used by her assailant.

Appellant was charged with the October 26 and 28 rapes and related offenses, and with carrying a pistol without a license on November 10, 1981. Appellant filed a pretrial motion for severance under Super.Ct. Crim.R. 14.² The government opposed severance. After oral argument, the trial judge denied appellant's severance motion.

II

Appellant argues that the trial court abused its discretion by denying the motion for severance of the counts relating to the two rape incidents. This court will overturn the trial court's decision to deny a motion for severance only when the appellant makes a clear showing that the trial court has abused its broad discretion. Brooks v. United States, 448 A.2d 253, 257 (D.C.1982); Arnold v. United States, 358 A.2d 335, 339 (D.C.1976) (en banc). When offenses "of the same or similar character," Super.Ct.Crim.R. 8(a), are properly joined, however, there exists a "substantial risk of prejudice" to the defendant. Bridges v. United States, 381 A.2d 1073, 1075 (D.C.1977), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 433 (1978). A defendant may be prejudiced by a joint trial because the jury might cumulate the evidence of the various crimes, infer a criminal disposition of the defendant, or become hostile to a defendant charged with multiple crimes. Crisafi v. United States, 383 A.2d 1, 3 n. 2 (D.C.), cert. denied, 439 U.S. 931, 99 S.Ct. 322, 58 L.Ed.2d 326 (1978). The defendant might also be confounded in presenting separate defenses to each charge. Id. Severance should be granted for offenses of "similar character" "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...