Pelote v. Dist. of D.C., 08–CF–534.

• Decision Date: 16 June 2011
• Docket Number: No. 08–CF–534.,08–CF–534.
• Parties: Rex T. PELOTE, Appellant,v.DISTRICT OF COLUMBIA, Appellee.*
• Court: D.C. Court of Appeals

21 A.3d 599

Rex T. PELOTE, Appellant,

v.DISTRICT OF COLUMBIA, Appellee.*

No. 08–CF–534.

District of Columbia Court of Appeals.

Argued Nov. 17, 2009.Decided June 16, 2011.

Christine Pembroke, Washington, DC, for appellant.John J. Woykovsky, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.Before RUIZ and THOMPSON, Associate Judges, and FERREN, Senior Judge.PER CURIAM:

Appellant was convicted on one count each of fleeing from a law enforcement officer ¹ and reckless driving.² He received consecutive prison sentences of 28 months for the flight conviction and three months for reckless driving, to be followed by three years of supervised release. He contends that (1) the District of Columbia lacked authority to prosecute the flight charge; (2) the trial court committed reversible error by denying his motion for a mistrial and allowing the trial to proceed once the jury had heard that appellant was under surveillance for criminal activity not at issue in this case; and (3) the convictions merge under the double jeopardy clause of the Fifth Amendment, requiring that one be vacated. We reject the first two contentions, agree with the third, and thus remand for vacation of one of appellant's two convictions.

I.

At trial, Officer Mike Derian from the Metropolitan Police Department testified that at 3:00 a.m. on February 25, 2007, he and his partner, Officer Justin Linville, “were conducting a surveillance operation.” Officer Derian saw a man, whom he identified as appellant, leave a building near the corner of 21st and G Streets, N.E., enter a Lexus coupe parked nearby, and drive away. Derian radioed his partner, who picked him up, and the two followed appellant. At this point in the testimony defense counsel objected, arguing that the officers had been “staking out” appellant and that the government had not advised counsel, during discovery, that his client had been under surveillance. The government replied that Officer Derian had never said he was investigating appellant, and that the surveillance had nothing to do with the charged offenses. Counsel moved for a mistrial, which the court denied as premature, indicating that counsel could cross-examine the officer about any implication that the officers had been investigating appellant.

Thereafter, Officer Derian testified that, upon seeing appellant “roll through” a stop sign, the officers turned on their squad car's emergency equipment and appellant sped away. After a high-speed chase during which appellant drove through several stop signs and a red light—forcing other cars to stop to avoid a collision—the officers broke off their pursuit because of a concern for public safety. Officer Derian added that, although it was 3:00 a.m. when he first saw appellant get into the Lexus, he could see appellant clearly because of the street lights nearby. Officer Linville also testified, offering essentially the same testimony as that of his partner.

II.

On November 6, 2009, less than two weeks before oral argument in this court, appellant filed a motion for summary disposition citing In re Crawley, 978 A.2d 608 (D.C.2009), for the proposition that the District of Columbia Office of the Attorney General (OAG) lacked authority to prosecute him on the flight charge. His motion notes his indictment at the instance of the United States Attorney's Office (USAO), and argues that the USAO alone has authority to prosecute this felony in the District of Columbia. The District replies that the USAO properly “handed over” its prosecutorial authority to the OAG, citing a District statute that authorizes the USAO to consent to OAG prosecution of an offense, ordinarily charged by the United States, when joined with an offense properly brought by the District of Columbia.³

Appellant did not raise this argument at trial, and thus we review for plain error. See United States v. Olano, 507 U.S. 725, 731–32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Super Ct.Crim. R. 52(b) (2006). We find none. Appellant contends that the OAG's flight prosecution is “fatally defective for jurisdictional reasons,” an argument we have rejected by calling the issue “procedural[,] ... without effect upon the court's jurisdiction.” In re Marshall, 467 A.2d 979, 980 (D.C.1983) (per curiam). But assume, for the sake of argument, that there was “error” that is “plain.” Appellant cannot establish the third requirement under plain error review: that his “substantial rights” were affected. Olano, 507 U.S. at 732, 113 S.Ct. 1770. More specifically, he cannot show that, but for the error—that is, if instead of the OAG the USAO had been the prosecutor—there is a reasonable probability that the result of the trial would have been different. See Thomas v. United States, 914 A.2d 1, 21 (D.C.2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81–82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). As the District notes in its response, “the evidence at trial would have been the same, regardless of which prosecuting authority handled the case.” Appellant's argument accordingly fails.

III.

Appellant relies, next, on an “other crimes” argument, claiming trial court error in denying his motions for a mistrial.⁴ He contends that the officers' testimony that they were conducting a surveillance operation when they observed and chased appellant prejudiced him unduly by suggesting—without regard to the events at issue—that appellant was a man of bad, indeed criminal, character. See Robinson v. United States, 623 A.2d 1234, 1238 (D.C.1993) (citing, among others, Drew v. United States, 331 F.2d 85, 89–90, 118 U.S.App.D.C. 11, 15–16 (1964)). The trial court rejected this argument, ruling that information about the surveillance had been too limited to cause undue prejudice and intimating that counsel himself, not the government, had been responsible for highlighting the issue. The record supports the trial court here.

Although not discussed as such at trial, we are satisfied that the limited surveillance evidence of record is not traditional Drew, “other crimes” evidence but, rather, comes within the well-established teaching of Toliver v. United States, 468 A.2d 958 (D.C.1983).⁵ Toliver permits evidence of other crimes when relevant “to complete the story of the crime on trial by proving its immediate context.” Id. at 960. (quoting McCormick on Evidence § 190 (2d ed.1972)). Accord Johnson v. United States, 683 A.2d 1087, 1098 (D.C.1996) (en banc), cert. denied, 520 U.S. 1148, 117 S.Ct. 1323, 137 L.Ed.2d 484 (1997) (evidence of “another crime” admissible when “necessary to place the charged crime in an understandable context”).

Because the police gave up the chase to avoid further danger to the public, the government had to be able to show why the officers could identify appellant later, as there was no way that they could have identified him merely from seeing his car go through several stop signs and a red light. The prosecution, therefore—not knowing whether identification would be a contested issue—had to put the eventual identification evidence in “understandable context,” and thus preempt the issue, by eliciting evidence that the officers had seen appellant leave the building near 21st and G Streets, N.E. and get into the car.⁶

Unlike forbidden other crimes ( Drew ) evidence, Toliver evidence is presumptively admissible if relevant. See Rodriguez, supra, note 6, 915 A.2d at 385–86. On this record, moreover, we are satisfied that the probative value of the surveillance testimony “substantially outweighed” its “prejudicial effect.” Id. at 386–87; see Johnson v. United States, 683 A.2d 1087, 1089 (D.C.1996) (en banc). Unlike some admissible Toliver evidence, see supra, note 6, the surveillance testimony did not implicate appellant in any crime. Furthermore, as the trial court observed, the defense, not the government, at least twice asked questions of Officer Linville that appeared intended to remind the jury about the surveillance—quite possibly, thought the judge, to provoke a mistrial. ⁷ In addition, any further heightening of the jury's attention to the surveillance testimony was the fault not of the government, but of appellant himself, who fled at high speed—suggesting consciousness of guilt—when the police officers signaled him to stop. Finally, counsel never asked for a limiting instruction; his requested relief was mistrial or nothing, a remedy well in excess of the harm he was claiming.⁸ In sum, given the record before us and the applicable case law, we perceive no reversible error attributable to the surveillance evidence.

IV.

Appellant asks for reversal of either (but only one) conviction by claiming violation of the double jeopardy clause of the Fifth Amendment, which protects against multiple punishments for the same offense. See Wilson v. United States, 528 A.2d 876, 879 (D.C.1987) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). If the legislature so intends, however, a single transaction may generate more than one offense under separate statutes, without amounting to double jeopardy. Id. (citing Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)). Moreover, the legislative intent to do so—or not—is presumptively to be found in an elements analysis under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), unless that presumptive analysis is overcome “by a clear indication of contrary legislative intent” reflecting a different interpretive approach. Malloy v. United States, 797 A.2d 687, 691 (D.C.2002) (quoting Missouri v. Hunter, 459 U.S. 359, 367–68, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). ⁹

The first statute at issue, D.C.Code § 50–2201.04(b), proscribes reckless driving:

(b) Any person who...