Day v. United States, 9339.

• Decision Date: 14 July 1976
• Docket Number: No. 9339.,9339.
• Parties: Edward DAY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

360 A.2d 483

Edward DAY, Appellant, v. UNITED STATES, Appellee.

No. 9339.

District of Columbia Court of Appeals.

Argued April 21, 1976.

Decided July 14, 1976.

Lawrence P. Lataif, Arlington, Va., appointed by the court, with whom Richard Whittington Whitlock, Washington, D. C., also appointed by the court, was on the brief, for appellant.

Andrea L. Harnett, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Michael G. Scheininger, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, PICKLING and HARRIS, Associate Judges.

KELLY, Associate Judge:

Officers Richard D. Walker and Jesse Warrick, responding to a radio run for a robbery at 1341 East Capitol Street in this city, came upon a group of people outside the apartment building. After talking to members of this group the officers approached appellant and Elwood Grant, who were standing nearby. During the conversation which ensued appellant said, at intervals, "Did you come about the fight? . . . It was a fair fight. I just beat up the man upstairs. . . . I will take you to his apartment and let you talk to him yourself."

Appellant and Grant took the officers to an apartment on the top floor of the building. A woman answered the door and Officer Warrick observed a man behind her who appeared to be bent over in pain. After a discussion in the apartment with this individual, Bobby Quinn, Warrick returned to the hallway where appellant, Grant and Walker were waiting. He advised appellant and Grant they were under arrest for robbery, whereupon appellant, who had become belligerent even while waiting in the hall, began to strike Warrick about the body. A scuffle ensued during which appellant grabbed Warrick's revolver and it discharged. Grant, meanwhile, flung Walker over his shoulder down the steps, and fled. Appellant was finally subdued and arrested.

Appellant was charged with various assault counts on both Warrick and Quinn, the apartment dweller,¹ all of which were dismissed before trial except one count of assault on a police officer.²

The government was allowed at trial to present evidence of the events which precipitated appellant's arrest over repeated objections that it was hearsay evidence of an assault and attempted robbery, crimes with which he was not charged. A mistrial was requested and denied after the prosecutor's opening statement and again after Walker's direct examination. The court did, however, instruct the members of the jury that appellant was not on trial for any crime other than assault on Warrick and, in effect, they were not to consider evidence of the Quinn assault in determining guilt or innocence of the Warrick assault.³ Officer Warrick also testified about the original encounter with appellant and the events which preceded the assault on him. Grant, testifying for the defense, was asked on cross-examination about the Quinn fight, as was appellant, who took the stand. The sequence of events was also mentioned in the prosecutor's closing argument.

It is appellant's contention that the evidence of an assault on and attempted robbery of Quinn was inadmissible hearsay which was incurably prejudicial to his case. As authority for this argument he cites Drew v. United States, 118 U.S.App. D.C. 11, 331 F.2d 85 (1964), and its progeny,⁴ which proscribe the admission of evidence of crimes other than the one with which a defendant was charged except, among other reasons, where relevant to establish motive or intent to commit the offense charged or to explain the circumstances of the offense charged, and if its prejudicial effect is outweighed by its probative value.

Appellant mistakenly refers to evidence admitted over his objection as hearsay evidence since it consisted only of his own statements to the police and a recitation of subsequent events of which the witness had first-hand...