Washington v. US, No. 97-CO-1799

• Decision Date: 05 October 2000
• Docket Number: No. 98-CO-16., No. 97-CF-1801, No. 97-CO-1799, No.
• Citation: 760 A.2d 187
• Parties: David L. WASHINGTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

760 A.2d 187

David L. WASHINGTON, Appellant, v. UNITED STATES, Appellee.

Nos. 97-CO-1799, 97-CF-1801, and 98-CO-16.

District of Columbia Court of Appeals.

Argued November 16, 1999.

Decided October 5, 2000.

Michael Lasley, Washington, DC, appointed by the court, for appellant. Betty J. Clark, Washington, DC, also appointed by the court, was on the brief for appellant.

Deborah L. Connor, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Mary-Patrice Brown, and Lydia Pelegrin, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and TERRY and SCHWELB,¹ Associate Judges.

TERRY, Associate Judge:

In a one-count information appellant was charged with stalking, in violation of D.C.Code § 22-504(b) (1996). A jury found him guilty as charged. These consolidated appeals are taken from (1) appellant's conviction of stalking (appeal No. 97-CM-1801), (2) the denial of a motion for a new trial (No. 97-CO-1799), and (3) the denial of a motion to reconsider appellant's sentence (No. 98-CO-16). Appellant makes several arguments on appeal, including a claim that the prosecutor made an improper comment in her opening statement. We agree that the prosecutor's comment was improper, but we are satisfied that it did not generate sufficient prejudice to require reversal. Appellant's remaining arguments are without merit. Accordingly, we affirm both the conviction and the other orders under review.

I

Michelle Hall met appellant in August 1993, and soon the two of them began dating. In September, Ms. Hall testified, "he needed a place to stay and he asked if he could stay for a while." Appellant stayed with Ms. Hall for what turned out to be ten months, from September 1993 until July 1994. Sometime around May 1994, however, appellant and Hall began having "a lot of conflicts," and Hall asked appellant to move out. When he finally moved in July, he took most of his belongings, but "left a few things."

One day in the latter part of August 1994, appellant came to Ms. Hall's house. The two of them chatted for ten or fifteen minutes, and then appellant left. The next morning, however, he came back looking for his key. He asked Hall if she had seen it, and when she replied. "Well, I wasn't looking for your key," appellant slapped her in the face, saying, "You don't talk to me like I'm a punk or a sucker." When Ms. Hall screamed, her daughter came downstairs, and Hall asked her to call her grandmother (Hall's mother), who lived nearby. Appellant left and yelled from the street, "Well, I'll bet you one thing, you won't be living at that address." Ms. Hall was "upset and nervous" after this incident.

Throughout September appellant kept calling Ms. Hall, asking her why she did not want to see him and saying, "You must be messing with some other [man]. I'm going to punish you." Appellant would also come to Hall's home, and when she would not open the door, he would yell similar things through the mail slot. At the end of September, after appellant had called "over twenty times," Ms. Hall went to court and filed an application for a civil protection order (CPO). See D.C.Code § 16-1005 (1997).² She testified that the next morning, when she left for work, she discovered that she had "two slashed tires."³ On another occasion appellant called Ms. Hall at work and left a message that he wanted her to attend his father's funeral. In addition, he still had his paychecks mailed to Ms. Hall's address. She told him she would leave them in a file cabinet on the porch. When he came one day to pick them up, he began yelling at Hall again through the mail slot. After she refused to let him in, he sat in his car outside her house for fifteen minutes before driving away.

Toward the end of September 1994, Ms. Hall began staying at her mother's house and would go to her own house only if someone was with her. She testified that she did not feel safe in her house because appellant would come there so often. "There would be times I would pull up, and he would come from nowhere and be behind me." Ms. Hall described one incident when she and a female friend from her graduate program at a local university were working on a project at her house. The phone rang, and Hall asked her friend to answer it because "he was calling so often I didn't want to answer the phone." When she learned that appellant was calling, Hall would not speak to him. Five minutes later appellant came to the door, "broke open the storm door . . . banged on the door, turned the knob." Ms. Hall called the police and members of her family, but appellant had left by the time the police arrived.

Appellant came another time in October, pounded on Ms. Hall's new security door,⁴ and then went to the window, yelling about the checks and complaining that he could not see her. In a loud voice, he said that he was going to punish her, then punched his fist through the window and "opened the window trying to come in." Hall once again called the police, but again he left before they arrived.

In May 1995 appellant called Ms. Hall and said he wanted to "atone" for his behavior. Ms. Hall agreed to go to lunch with him, and over lunch "he said that he was trying to get his life together." She said she "wasn't interested in a relationship, could he handle a friendship?" He replied that "a friendship would be fine, and that he didn't want anything else." By the end of June, however, appellant was calling frequently and starting "to be possessive again," asking where Ms. Hall had been and whom she had been with. On Ms. Hall's birthday in July, he called and said he wanted to come and see her. When she told him she "had a few friends over," he acted "real irritated" and said he would not come. However, when she returned from taking some of her friends home, he was waiting on the porch with a gift for her. Ms. Hall did not accept the gift, and appellant left. A few days later appellant came and took back a ring that he had given her the year before.

Appellant continued to call frequently and act possessive. He would come to Ms. Hall's house and stand on the porch "just screaming" at her. On one such visit he asked Hall to go with him to pick up something for his car. After hesitating, she decided to go, thinking it "would be a good day to bring some closure to this." So she wrote a letter stating that she did not want any further communication with him, and when he arrived, the two of them got into her car. As they drove along, she handed him the letter. After he read it, he punched the window of the car and accused her of "talking to him like he was a punk or a sucker." Ms. Hall stopped the car and jumped out and was aided by a bystander.

Soon after this incident, Ms. Hall had her telephone number and her locks changed. Then, in January 1996, she received a letter from appellant. Without opening it, she marked it "Return to Sender" and sent it back. After that, appellant began calling her friends to get her new phone number.

In February 1996, about a week after Ms. Hall returned the letter, appellant appeared in the parking lot outside the school where she taught and yelled to her that he wanted to talk. Hall rushed into the school building, but appellant followed her. He began calling her a "slut" and asking why she did not want to see him on her birthday. She ran to the school office, where a co-worker, Vanessa Johnson, tried to talk to appellant while Hall called the police. Appellant was eventually escorted out of the building by a school security officer and left before the police arrived.

In July 1996 Ms. Hall was riding in her car with a friend, Howard Speight. Appellant saw them stopped at a light and began yelling at Hall that "he was going to mess me up." When the light changed, Hall drove off quickly. Some time after that, in the latter part of 1996, Ms. Hall sought another civil protection order. Finally, in January 1997, appellant was arrested and charged with stalking.

The government presented the testimony of seven other witnesses who corroborated Ms. Hall's testimony in many details. The defense called only one witness, an attorney for whom appellant worked as an investigator, who testified that appellant was on an assignment in the area of Ms. Hall's school in February 1996.

The jury found appellant guilty of stalking. A few days after the trial ended, he filed a motion for new trial, which the court denied. Then, after appellant was sentenced,⁵ appellant filed a motion to reconsider his sentence, which was also denied.

II

On appeal appellant presents six arguments: (1) that the trial court erred in refusing to grant a mistrial after the prosecutor made improper comments during her opening statement; (2) that the court erred in excluding evidence that Ms. Hall had filed a previous complaint against appellant which was later dismissed; (3) that the court erred in admitting evidence of a previous civil protection order; (4) that the court erred in refusing to allow recross-examination of Vanessa Johnson; (5) that the court erred in admitting evidence of uncharged criminal conduct; and (6) that the court erred in failing to give a special unanimity instruction. Although the prosecutor's comments to the jury should not have been made, they did not give rise to reversible error. The rest of appellant's arguments are without merit.

A. The Prosecutor's Comments

Appellant contends that the trial court erred in not granting a mistrial after the prosecutor made improper comments during her opening statement. What the prosecutor said was this:

Have any of you ever been followed? Have you looked back and felt that someone was watching you? Have any of you ever been called consistently and wanted to hang up because you never wanted to talk to that person? Have any of you had someone show up at church, at your place of business, in front of your home hollering at you, harassing you, and

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