LEWIS v. U.S., 87-274

• Decision Date: 29 December 1989
• Docket Number: No. 87-274,87-274
• Citation: 567 A.2d 1326
• Parties: Charles A. LEWIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

567 A.2d 1326

Charles A. LEWIS, Appellant, v. UNITED STATES, Appellee.

No. 87-274.

District of Columbia Court of Appeals.

Submitted July 18, 1989.

Decided December 29, 1989.

Appeal from the Superior Court, Curtis E. von Kann, J.

John T. Fowler, appointed by this court, was on the brief for appellant.

Patricia A. Riley, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, were on the brief for appellee.

Before NEWMAN, STEADMAN and SCHWELB, Associate Judges. ^*.

Associate Judge NEWMAN concurs in the result only.

STEADMAN, Associate Judge:

Appellant Lewis appeals from his conviction for carrying a dangerous weapon (a buck knife) in violation of D.C.Code § 22-3204 (1989).¹ His two principal arguments on appeal concern the trial court's handling of a problem with one juror (whoherself displayed a knife) and the admission of asserted Drew² evidence. We affirm.

This case involves an altercation occurring on August 4, 1986 between appellant and Kenneth Smith. A police officer driving by stopped to investigate. The officer testified that he saw two men, appellant and Smith, standing in front of 705 4th Street N.W., and that each of them had an object in his hand. As the two were struggling with what appeared to be a pipe (but which turned out to be Smith's homemade shotgun), the buck knife held by appellant flew out of his hand and onto the sidewalk. Both men were arrested, with Smith subsequently entering a plea of guilty to the charge of carrying a dangerous weapon.

Appellant testified that he did not remove the knife from his pocket to protect himself, nor did he display it when Smith was approaching him; he suggested that the knife must have fallen out of his pocket when the two men were tussling. According to appellant, he carried a knife because he needed it for his work at a florist shop.

I

First, appellant contends that the trial court committed reversible error in handling an incident involving the jury. We disagree. What occurred is as follows: one of the members of the jury (Juror 617) sent a note to the judge stating that he was concerned about something that had transpired in the jury room. The trial judge conferred with counsel for both sides, and it was agreed by all that he would first speak to the juror alone to ascertain the nature of the problem. After hearing from Juror 617, the trial judge summoned counsel, and then, with everyone present, the juror repeated his story almost word for word. He stated that during a break in the trial, one of the other jurors had remarked that she carried a little knife and that she had pulled a Swiss army knife out of her purse and displayed it.

Counsel ventured their respective proposals for how to deal with the situation. Defense counsel suggested that nothing be done, remarking "If we do something to highlight that particular juror, I think we're sending a dangerous message to the jury."³ The government, on the other hand, urged the court to excuse the juror with the knife. Instead, the trial court proposed a solution that would take care of the concerns of both sides — the juror with the knife would be removed from deliberations, but in such a way as to avoid sending any kind of a message to the jury. This could be done by learning from Juror 617 which juror was the one with the knife, telling Juror 617 that the juror with the knife was, by coincidence, an alternate, and then discharging the juror just before deliberations.

Defense counsel agreed that the trial court's proposal would solve the problem, but argued that another problem would be created in that he would be deprived of the original twelve jurors upon whom he had agreed. Appellant does not renew this argument here, but rather argues that 1) "it was totally improper for the court to have addressed the juror [617] outside the presence of the parties" and 2) "a voir dire should have been conducted and/or a mistrial declared." Neither point was properly preserved for appeal, since, as noted, defense counsel expressly agreed that the court should address the juror alone first, and since defense counsel never moved to poll the entire jury about the incident (understandably since counsel's expressed concern was that the incident be minimized so as to avoid "sending a dangerous message to the jury").

In any event, whatever error there may have been by the court's ex parte communication with Juror 617, it was harmless.The communication was brief, and its substance was repeated virtually verbatim after the parties had reassembled. See Johnson v. United States, 544 A.2d 270, 273 (D.C. 1988) (a facially benign error in communicating with a juror ex parte is harmless beyond a reasonable doubt). We also cannot say that the trial court abused its discretion in failing sua sponte to voir dire the entire jury, particularly since such a voir dire might well have served to create the very prejudice to appellant of which he was concerned at trial.

II

Appellant's other principal contention is that the trial court erred in admitting prior bad act testimony. The "prior bad act" referred to was an altercation between appellant and Smith which had occurred two days before the altercation involved in the instant case. Appellant had allegedly brandished his knife at Smith during this earlier dispute. After an extensive colloquy, the trial court determined that it would allow testimony concerning this incident (the "August 2 incident") only by way of rebuttal, that is, that the evidence would not be admitted unless appellant put his purpose in carrying the knife into issue.⁴ After appellant took the stand and stated that he carried the knife because he needed it for his work at the florist's, the government did in fact introduce Smith's testimony about the August 2 incident. Appellant protests the admission of the evidence on the grounds that it was not disclosed until the day of trial, that it was not within any of the established Drew⁵ exceptions, and that the trial court admitted the evidence without first finding that the prior incident was established by clear and convincing evidence. We do not find reversible error in any of these three contentions.

A.

First, the trial court correctly noted that there exists no specific rule mandating that the government provide advance notice of its intention to introduce Drew evidence.⁶ Here the government did not make known its intention to introduce evidence of the August 2 incident until after the jury had been sworn. In considering whether the government should have been precluded from using the evidence, the trial court noted that:

[A] number of judges do require advance disclosure as a matter of their own calendar and practice. I think it would have been a better practice. And I think that in a case where the Government doesn't, then it runs some risk that a defendant may be able to make a sufficiently strong showing from the lack of any advance disclosure that a Court would be persuaded that the prejudicial effect far outweighs the probative effect, and exclude it. In this case, I am not going to do that.

The trial court's determination not to exclude use of the evidence was no abuse of discretion. The trial court explained its ruling in part by noting that during a hearing held some five months before trial,⁷Smith had "laid out in considerable detail exactly what the Government now seeks to offer," and that therefore, since appellant "had an opportunity to find out in detail what Mr. Smith would say," "this is not a case where the Government pulled something out of the closet by surprise and drops it on the defendant's table after the jury is sworn."⁸

B.

Appellant's second challenge to the admission of the evidence regarding the August 2 incident is that the trial court erred in regarding the evidence as admissible under Drew. As support for this argument, appellant states that the evidence was admitted in order to show appellant's "purpose" in carrying the knife, and that " 'purpose' is not among the five enumerated exceptions" to the rule excluding evidence of prior bad acts. See Drew, supra, 118 U.S. App.D.C. at 16, 331 F.2d at 90. However, the concept of "purpose" as an element of the offense charged, see supra note 4, is, if not the same as the "intent" exception of Drew, very close in principle. Additionally, we have repeatedly noted that "the recited exceptions [in Drew] are not necessarily exhaustive." See, e.g. Thompson v. United States, 546 A.2d 414, 420 n. 9 (D.C. 1988). Thus, we hold that the trial court's conception of the use of the evidence, as set forth in the court's instruction to the jury, was proper: "that evidence about what happened on August 2 is admitted only for your consideration of whether it shows or tends to show that on August 4, 1986, the defendant's purpose in carrying the knife was its use as a deadly or dangerous weapon."

C.

Appellant's final argument, only briefly discussed by him, is that the trial court erred in failing "to conduct some type of reasonable or practical inquiry" to ascertain whether Smith's account of the August 2 incident was substantiated by evidence rising to the level of "clear and convincing."

We recently reiterated that in this jurisdiction, prior to admitting Drew evidence, "[i]n the absence of a final adjudication of guilt, the government must show by clear and convincing evidence that the other crime occurred and that the defendant is connected to it." Groves v. United States, 564 A.2d 372, 374 (D.C. 1989) (citing Light v. United States, 360 A.2d 479, 480 (D.C. 1976); United States v. Bussey, 139 U.S. App.D.C. 268, 273 & n. 23, 432 F.2d 1330, 1335 & n. 23 (1970)). Although the trial court and counsel engaged in several extensive colloquies regarding the Drew issue, the transcript does not reveal that the trial court made an express finding by clear and convincing evidence that the August 2...