Void v. US

• Citation: 631 A.2d 374
• Decision Date: 09 September 1993
• Docket Number: No. 91-CF-1188.,91-CF-1188.
• Parties: Bruce E. VOID, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

631 A.2d 374

Bruce E. VOID, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-1188.

District of Columbia Court of Appeals.

Argued April 21, 1993.

Decided September 9, 1993.

Matthew C. Leefer, Frederick, MD, appointed by this court, for appellant.

Daniel M. Zachem, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., at the time the brief was filed, and Thomas C. Black and Daniel S. Friedman, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before ROGERS, Chief Judge, and TERRY, Associate Judge, and BELSON, Senior Judge.

ROGERS, Chief Judge:

Appellant Bruce E. Void appeals his convictions by a jury of conspiracy to distribute and possess with the intent to distribute phencyclidine ("PCP") and cocaine, in violation of D.C.Code § 33-541(a)(1) and § 33-549 (Repl.1988) and first-degree murder while armed, in violation of D.C.Code § 22-2401 and § 22-3202 (Repl.1989). On appeal, his principal contentions are that the motions judge erred by denying the motion to sever the conspiracy and murder charges under Super.Ct.Crim.R. 14, and that the trial judge erred by denying the motion for a mistrial as a result of prejudicial, improper remarks made by the prosecutor in opening and closing arguments to the jury.¹ We affirm.

I.

The Conspiracy. At trial, the government sought to prove that Tyrone Carrington (the decedent), William Johnson, and appellant had been partners and co-conspirators in a cocaine and PCP distribution operation that went awry. According to the government's evidence, appellant and Johnson entered a partnership in 1987 to sell cocaine and PCP in southeast Washington, D.C. One of the wholesalers from whom they purchased cocaine was Tyrone Carrington. In the summer of 1988, appellant and Johnson would buy as much as five to six ounces of cocaine at a time from Carrington. As the relationship proved mutually prosperous, Carrington decided in the fall of 1988 to take appellant and Johnson into his operation as partners. Instead of selling the cocaine to appellant and Johnson, he would distribute the drugs to them and the profits would be split three ways. The three men also became "very close" on a personal level, frequently socializing with each other.

Business for the trio continued to prosper throughout 1989, with the partnership's business primarily operating out of two apartments. One was the apartment of Crystal Brown, who was Carrington's girlfriend, on Glassmanor Drive in Oxon Hill, Maryland. Typically, every two or three days in 1989, Johnson and Carrington would bring a kilogram of cocaine, which cost between $20,000 and $25,000 wholesale, to the Glassmanor apartment and supervise its "cooking" into crystalline crack form. After ten ounces had been prepared for distribution, appellant and Johnson would distribute it to their street-level sellers. Later they would collect the money from these sellers and give it to Crystal Brown, who would place the money along with the remaining twenty-six ounces of cocaine in her closet. The other base of the partnership's operation was Johnson's apartment in Temple Hills, Maryland, which was used mainly to prepare and store the PCP for distribution.

During the summer of 1989, a schism surfaced among the three partners. Apparently, appellant began to distrust Carrington and discussed his concerns with his girlfriend and Johnson.² In the meantime, however, Carrington and Johnson continued to grow closer. Bothered by this newfound closeness, appellant began to withdraw from the threesome's social activities. The three did, however, take a week long cruise together in August of 1989.³ Appellant and Johnson discussed the situation, and Johnson informed appellant that Carrington had said that he would like to see appellant dead and had tried to convince Johnson to do the job. Johnson also told appellant they had purposely tried to provoke appellant on one occasion. After the cruise, Carrington told a girlfriend that he wanted to "get away" from Johnson and switch to a legitimate career in real estate.

The Murder. On August 31, 1989, one day before Carrington's murder, appellant, Johnson, and Carrington obtained a kilogram of cocaine and conducted their usual practice of preparing it for distribution at the Glassmanor apartment. Consistent with practice, the remaining cocaine that had not been "cooked" was placed in the closet where Crystal Brown had put the 9 mm. pistol and pump shotgun that Johnson asked her to store. See supra note 3.

According to Crystal Brown, at 9:45 p.m. on September 1, 1989, she "beeped" Carrington from a telephone booth on Kenilworth Avenue on her way to a disco. A short time later, Carrington arrived in his black Corvette with Johnson in the passenger's seat. Ms. Brown testified that appellant was driving his black truck alone behind the Corvette. After a brief conversation, Carrington and Johnson drove off with appellant following them. Before going to the disco, Ms. Brown stopped at her Glassmanor apartment and instructed Carlos Carrington, who was Tyrone Carrington's thirteen-year-old son, and Calvin Moore III, who was Ms. Brown's twelve-year-old brother, "to lock the door, not to answer the door but to answer the phone." After she left the apartment, she made sure that both locks on the door were secured.

Sometime after the meeting with Ms. Brown, Carrington, Johnson, and appellant drove to 2730 Langston Lane, S.E., where Carrington met Clarine Howard, who was one of Carrington's street sellers. Ms. Howard testified that after she turned over money from her PCP sales to Carrington, she went outside and watched Carrington and Johnson drive away in a black sports car. She also thought that there was a black "Blazer" on the road at the time, but she could not precisely recall its path.⁴ Moments later, Ms. Howard discovered Carrington dead in the car on Hartford Street.

Officer Samuel Howard heard one or more gunshots, proceeded in his cruiser to the intersection of 22nd and Hartford Streets, and found Carrington slumped over at the wheel of the Corvette. Carrington had been shot twice in the head, once from each side.⁵ The car doors were closed but unlocked; the headlights were on, and the engine was off but warm. The officer did not find either the key chain, which contained a key to Crystal Brown's Glassmanor apartment, or the car telephone.

The Break-In. Approximately five minutes after Carrington was shot, a telephone call was made from Carrington's portable telephone to Crystal Brown's Glassmanor Drive apartment. Three minutes later, at 11:31 p.m., another telephone call was made to the Glassmanor Drive apartment, this time on appellant's portable telephone. A next-door neighbor testified that at about 12:11 a.m., he heard three gunshots come from inside Ms. Brown's apartment.⁶

When Ms. Brown arrived home from the disco, she found the bottom (automatic) lock locked. Although there was no sign of forced entry, she discovered that her apartment had been entered; the apartment was in disarray, and the money, drugs, and guns that she kept in the closet were gone.⁷ The police recovered three .45 caliber shell casings and bullets from the apartment; expert evidence showed that the .45 caliber pistol fired in the Glassmanor apartment that night was the same one fired at the scene of Carrington's murder.

A week later, while sitting in appellant's truck, appellant and Johnson were arrested for Carrington's murder. The police recovered from Johnson the 9 mm. pistol that had been stolen from the Glassmanor apartment on the night of Carrington's murder. The jury found appellant guilty of conspiracy to distribute and possess illegal drugs with intent to distribute and first-degree murder while armed.⁸

II.

Appellant contends that the motions judge erred in denying the motion to sever the conspiracy and murder counts under Rule 14 because of the prejudice resulting from the introduction of evidence of appellant's involvement in a drug conspiracy.⁹ He maintains that the evidence of the conspiracy was not separate and distinct from the murder and related charges, and that the motions judge misinterpreted applicable authority on the identity exception under Drew.¹⁰ Appellant argues that while the evidence of the crimes at the Glassmanor apartment tended to prove the identity of Carrington's killer insofar as it implicated William Johnson,¹¹ it did not likewise connect appellant to the killing because he was not as clearly linked to the entry. He concedes that evidence of the murder would have been admissible at a conspiracy trial, but he contends that the evidence of the offenses at the Glassmanor apartment would not have been admissible as proof of appellant's involvement in Carrington's killing since "the conspiracy count was little more than a pretext for evading the Drew requirement."¹² Appellant argues that the Glassmanor apartment offenses evidence served only to bolster the government's case against him for murder through propensity inferences, noting the trial judge's observation that the whole trial was "permeated with the Maryland evidence." Hence, appellant contends that because he suffered compelling prejudice from the joinder of the offenses, reversal is warranted.

Strong policy reasons exist in favor of joint trials where offenses have been properly joined under Super.Ct.Crim.R. 8(a). See Sousa v. United States, 400 A.2d 1036, 1040 (D.C.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 485, 62 L.Ed.2d 408 (1979); see also Arnold v. United States, 511 A.2d 399, 404 (D.C.1986) (citations omitted). Indeed, severance is only necessary "when a defendant cannot receive a fair trial." Baxter v. United States, 352 A.2d 383, 385 (D.C.1976). Under Rule 14, offenses should be severed:

"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

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