Hazel v. US

• Decision Date: 31 October 1991
• Docket Number: 89-1376 and 89-1387.,89-1160,No. 87-127,89-1239,87-128,87-127
• Citation: 599 A.2d 38
• Parties: Bobby E. HAZEL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

599 A.2d 38

Bobby E. HAZEL, Appellant, v. UNITED STATES, Appellee.

Nos. 87-127, 87-128, 89-1160, 89-1239, 89-1376 and 89-1387.

District of Columbia Court of Appeals.

Argued November 14, 1990.

Decided October 31, 1991.

W. Gary Kohlman, appointed by this court, with whom Mark J. Rochon, Washington, D.C., was on the brief, for appellant.

Stevan E. Bunnell, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Elizabeth Trosman, Terence J. Keeney and Kevin Ohlson, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before STEADMAN, SCHWELB and WAGNER, Associate Judges.

STEADMAN, Associate Judge:

This case concerns a falling out between two partners in a drug operation—appellant Bobby Hazel and his erstwhile colleague Walter Curry—and their multiple venting of bad blood by shooting at each other in a variety of public settings. The two principal issues on appeal deal with, first, the admission of evidence of uncharged criminal acts as background to and occurring in the course of the on-going feud, assertedly in violation of Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), and second, the trial court's reinstruction of the jury in appellant's involuntary absence, assertedly in violation of the right to be present at every stage of the trial under Super.Ct.Crim.R. 43(a).¹ We affirm.

I: The Facts

Appellant was charged in a seven count indictment with two counts of assault with intent to kill while armed (AWIKWA), D.C.Code §§ 22-501, -3202 (1989), two counts of carrying a pistol without a license, id. § 22-3204, conspiracy to kill, id. § 22-105a(a), obstruction of justice, id. § 22-722(a)(1), and bribery, id. § 22-713(a)(1).

At the ensuing trial before a jury, the government was permitted to present evidence establishing the following series of events. During late 1982 and early 1983, Curry, appellant, and a number of others were all confederates in a drug operation. On January 11, 1983, at appellant's behest, Terry Caison, who was not part of the drug operation, and appellant broke into an apartment in Maryland and stole a safe where drug proceeds were stored. Curry suspected appellant of the theft, confronted him, and demanded return of his portion of the cash. Appellant denied the theft and refused to pay Curry.

Then began a series of violent reprisals. In immediate retaliation that same day, Curry stole heroin from two of appellant's "runners" and gave it out free on the streets. The next day, January 12, Curry again went to demand his money, but when appellant saw him coming, appellant commenced shooting at Curry, chasing Curry through the street until he escaped by climbing over a fence. Thereafter, appellant drove to Curry's residence, and again engaged Curry in a gun battle in the streets. None of these shootings resulted in any of the charges against appellant.

On February 13, 1983, Curry and a friend were sitting in a Rib Pit restaurant when Curry was suddenly hit by three bullets. An ambulance took Curry to Howard University Hospital. Curry identified appellant as his assailant. For this shooting, appellant was charged with one of the counts of AWIKWA and one of the counts of carrying a pistol without a license.

During Curry's stay in the hospital from February 13th through the 16th, appellant allegedly conspired with Caison and two women to have Caison kill Curry in his hospital bed. This formed the basis for the conspiracy count.

On February 21, 1983, after his release from the hospital, Curry again saw appellant on the street, and a gun battle ensued, allegedly initiated by appellant, including a chase into a Popeye's eatery. This incident did not result in any charges against appellant.

After a period of relative calm, on May 19, 1984, appellant shot Curry one final time as Curry sat on a stoop talking to a friend. Curry was hit in the chest and, after he raised his arm to protect himself, in the arm. Curry and his friend identified appellant as the gunman. This was the conduct subjecting appellant to the second set of charges of AWIKWA and carrying a pistol without a license.

On June 26, 1984, in the District of Columbia jail, appellant allegedly offered Curry money if he would refuse to testify against him. This conduct generated the obstruction of justice and bribery counts.

The trial court dismissed the obstruction count, and appellant was found not guilty of the bribery and conspiracy counts. He was convicted of both AWIKWA counts and the related counts of carrying a pistol without a license.²

II: Other Crimes Evidence

Appellant first challenges the trial court's admission of evidence of the drug operation, the burglary, and the uncharged shootings as violative of the prohibition against the admission of "other crimes" evidence except for certain specific purposes. See Drew v. United States, supra, and succeeding cases. The trial court's ruling on the government's motion to admit this evidence followed an extensive dialogue with counsel. The trial court admitted the evidence³ as probative of the defendant's identity, motive, and intent in committing the offenses for which he was being tried, to prove a common scheme which included the offenses being tried, and to explain the surrounding circumstances.⁴ The government presses for affirmance under the motive and common scheme exceptions.⁵

A: Motive/Identity

With respect to the motive exception, appellant contends that since his defense was misidentification, intent and state of mind were not contested issues, and the use of Drew evidence of motive as probative of his intent was error. See Thompson v. United States, 546 A.2d 414, 423 (D.C.1988)⁶ (evidence of other crimes to prove intent not admissible "where intent is not controverted in any meaningful sense").

This argument understates the nature of the motive exception. We have permitted the introduction of Drew evidence to prove motive in circumstances very similar to those of the instant case. See Hill v. United States, 600 A.2d 58 (D.C.1991); Green v. United States, 580 A.2d 1325 (D.C.1990). In Hill, we held admissible evidence of an appellant's uncharged assault on the victim, and the victim's subsequent complaints against him, to prove his motive to commit the charged murder of the same victim four months later. We said that where "`the accused denies that he committed the act,' as in this case, `the prosecutor is permitted, as part of his effort to prove that the particular accused did commit the act, to prove that the accused had a motive for killing the deceased.'" Hill, supra, 600 A.2d at 61-62 (quoting Collazo v. United States, 90 U.S.App.D.C. 241, 247, 196 F.2d 573, 578, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364 (1952)).

In Green, relied upon by Hill, we upheld the admission of evidence that, during the month preceding the charged offenses (including murder), the appellant had assaulted the decedent with a knife when she refused to resume a relationship with appellant, tried to break into her home, and made threatening phone calls. On appeal, the appellant argued that the testimony was irrelevant to any controverted issue because appellant's defense was misidentification⁷ and his counsel had conceded for the record that whoever committed the charged crimes had done so deliberately. We distinguished Thompson, supra, finding the evidence admissible not only to prove motive, but also because it was highly relevant to the unquestionably contested issue of identity. We said: "This court has held that where the identity of the decedent's murderer is drawn into issue, evidence of prior altercations of a substantive and violent nature between the accused and the decedent is probative provided such incidents are proved by something other than hearsay." Green, supra, 580 A.2d at 1328.

Although Green analyzed the admissibility of the evidence under the separate Drew exceptions of motive and identity, it implicitly recognized the relevance of the motive exception, not because motive was an element of the crime or a controverted issue as such, but rather because proof of motive inferentially proved identity, an actually controverted material issue or element. See Hill, supra, 600 A.2d at 61-63. Indeed, Green states specifically at the end of the opinion that "leading commentators on the law of evidence, as well as our own court, have recognized the relevance of motive as a means to establish identity." 580 A.2d at 1328 (citing McCORMICK ON EVIDENCE at 562 (3d ed. 1984) and WRIGHT & GRAHAM, FEDERAL PRACTICE & PROCEDURE, § 5240 at 480 (1978 ed.)). As McCORMICK states, "the evidence of motive may be probative of the identity of the criminal" and "the second (larger plan), third (distinctive device), and sixth (motive) grounds of admissibility of other crimes seem to be most often relied upon to show identity." McCORMICK, supra, at 562-63; see also Bartley v. United States, 530 A.2d 692, 702 (D.C.1987) (Mack, J., dissenting) ("The introduction of independent crimes is justified if, and only if, proof of the motive or scheme proves the perpetrator's identity, intent, or his commission of the charged crime by means of the following legitimate inference: the evidence of the motive or scheme increases the probability of a defendant's participation in the charged crime by setting him apart from others who had no such motive or scheme").

Here, just as in Green and Hill, identity was a specifically identified "contested element of the charged crime which motive evidence inferentially proves." Ali v. United States, 520 A.2d 306, 310-11 (D.C.1987) (emphasis deleted). The trial court here similarly found the "motive evidence" to be "highly probative ... as to the identity of the perpetrator." Moreover, several other cases in this jurisdiction have upheld the admission of motive evidence in similar circumstances. See, e.g., Young v. United States, 515 A.2d 1090, 1095 (D.C.1986) (evidence of uncharged attempted armed...