t

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 90-CF-542 KEVIN F.

MOORE,

ApPEllANT,

v.
UNITED STATES, ApPEllEE.

[L

JUL - 2 1993

COURT OF APPEALS

Appeal from the Superior Court of the District of Columbia Fl1775-88 (Criminal Division) (Han. Ricardo M. Urbina, Trial Judge) (Argued May 17, 1993 Decided July 2, 1993 )

Richard Todd Hunter, appointed by this court, for appellant. Barbara K Bracher, Assistant United States Attorney, with whom jay B. Stephens, united states Attorney at the time the brief was filed, and john R. Fisher and Russell D. Duncan, Assistant united States Attorneys, were on the brief, for appellee.

Before ROGERS, Chiefjudge, and SCHWELB and WAGNER, Associate judges.

MEHORANDUK OPINION AND JUDGMENT

Appellant Kevin F. Moore, who was indicted for first degree murder while armed and carrying a pistol without a license, D.C. Code 22-2401 (Repl. 1989), -3202, -3204 (Supp. 1992), appeals his conviction by a jury of second degree murder and carrying a pistol without a license on eight grounds. We affirm.
I.

The charges arose out of the shooting death of the decedent, Reginald Simpson, who failed to turn over the proceeds from the sale of illegal drugs that he was given on credit by Damon Chase, who, in turn, had received the drugs on credit from appellant. In ruling on appellant's motion in limine to bar admission of other

crimes Dnnv' evidence that tended to portray appellant as a drug kingpin, the trial judge ruled that the government could introduce evidence focusing on the decedent's unpaid debt and the parties' relationships during the four to six week period prior to the shooting. Three witnesses testified that they saw appellant get out of his jeep with a gun, aim, and fire two or three times as the decedent was running away. David Ballinger and two other witnesses testified that they heard appellant threaten the decedent shortly before the shooting. In addition to Ballinger and Joseph Hughey, a friend of the decedent's testified that she saw appellant shoot the decedent. For the defense, Nigel Williams 2 testified that appellant never got out of his jeep at the shooting site. Another witness testified that he saw a man with a gun in his hand run back to a blue car and enter the passenger side. Three other witnesses testified that they saw a man, carrying what appeared to be a gun, running down the street after the shooting. Appellant testified that he never left his jeep, that Chase ran after the decedent with a gun just before the shooting, that Hughey shot the decedent while sitting in a car directly in front of appellant's jeep, and that a man who appeared to be holding a gun ran down the street after the shooting.
II.

Drew Ruling. 3 The principal issue raised by appellant relates

to whether the trial judge erred in denying appellant's motions for a mistrial because the prosecutor repeatedly exceeded the judge's ruling on Drew evidence. The prosecutor asked Ballinger, "[w]ho had [the decedent] seen you with with regards to [the decedent's] selling drugs?" Ballinger mentioned appellant and Chase. The

Dnnv v. United States,

(1964).

118 U.S.

App.

D. C.

11,

331 F. 2d 85

2 Williams testified before the grand jury that appellant shot the decedent, but stated at trial that police detectives had coerced his statements.
3 The trial judge properly admitted evidence of the drug transaction(s) occurring within four to six weeks of the shooting under the motive exception of Dnnv. See Drew, supra, 118 U.S. App. D.C. 11, 331 F.2d 85; if. Robinson v. United States, No. 91-CF-1278, slip op. at 9 (D. C. May 4, 1993): Johnson v. United States, 596 A.2d 980, 984 (D.C. 1991) (review for abuse of discretion), cert. denied, 112S.Ct. 1987 (1992).

trial judge interpreted the question as being "within the framework," of his ruling and overruled the defense objection, and the prosecutor rephrased the question to refer to the month or two before the shooting. Error, if any, was clearly harmless. See Kotteakos v. United States, 328 U. S. 750, 765 (1946); see also Johnson, supra, 596 A.2d at 986; Dixon, supra, 565 A.2d at 75 (citation omitted). The objected-to question immediately followed a series of questions about what happened the day of the shooting. There was overwhelming evidence of appellant's guilt, and the offending question did not directly concern appellant's guilt. Appellant also notes that the decedent's mother, testifying as a rebuttal witness, stated that she paid one of her son's debts to the appellant. Appellant claims that this testimony also exceeded the trial judge's D~ ruling. 4 Defense counsel objected that the mother could not place the debt-paying incident within the relevant time period of four to six weeks before the shooting, and in fact could not remember in which year the incident occurred. The trial judge sustained the objection, struck the mother's testimony, and excluded a piece of paper with appellant's name and a phone number, which the mother found in her son's room after his death. Given the overwhelming evidence of appellant's guilt, we conclude that the judge's actions in striking the testimony and evidence and instructing the jury to disregard any evidence struck from the record were adequate to cure error, see Harris v. United States, 602 A.2d 154, 165 (D.C. 1992): Thompson v. United States, 546 A.2d 414, 425 (D.C. 1988): Dorman v. United States, 491 A.2d 455, 462 (D.C. 1984), and that the request for a mistrial was properly denied. See Johnson, supra, 596 A.2d at 986. Appellant further objects that the prosecutor stated in his opening, closing, and rebuttal arguments that Hughey helped Chase deal in drugs and that some witnesses had testified that they were involved in drug dealing. These comments did not violate the D~ ruling because they did not specifically concern appellant's drug
4 Appellant's claim that this was an impermissible use of extrinsic evidence to impeach on a collateral matter, see McClain v. United States, 460 A.2d 562, 569 (D.C. 1983) I is meritless. Appellant's relationship with the decedent was not a collateral matter. Appellant admitted working with the decedent one summer and having continuing contact with the decedent afterwards, but denied that the decedent owed him money on the day of the shooting and that appellant had received money from the decedent's mother. Likewise, appellant's complaint that the testimony was unduly prej udicial because seeing decedent's mother must have had an emotional impact on the jury is meritless since the jury had already seen the decedent's mother testify as the first prosecution witness.

dealing. In addition, the prosecutor- s statement that the decedent was killed because he failed lito turn over the profits of the drug dealing ll to appellant, and "refused or showed him disrespect," referred to events immediately preceding the shooting and therefore complied with the ruling. The prosecutor's statement during closing argument that "all five of these young men were involved in illicit drug dealing" is more troubling because one of the five men was appellant. The judge overruled the defense objection, interpreting the argument to mean that all five men were involved with the particular cocaine that caused the decedent's debt. SeeJobnson, supra, 596 A.2d at 986; Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989) (citation omitted). Any error was harmless because the jury had already heard enough to be aware that appellant, the decedent, and many of the witnesses were involved in drug deal ing See Kotteakos, supra, 328 U. S at 765; Dixon, supra, 565 A.2d at 75 (quoting Dyson v. United States, 418 A.2d 127, 132 (D.C. 1980. The trial judge did not err in denying a mistrial after closing argument. Co-conspirator exception. Appellant contends that the trial judge erroneously permitted testimony about Chase's statements under the co-conspirator exception to the hearsay rule. 5 See Butler v. United States, 481 A.2d 431, 439 (D.C. 1984) I cert. denied, 470 U.S. 1029 (1985); see also Bellanger v. United States, 548 A.2d 501, 502-03 (D.C. 1988) (per curiam); Chavarria v. United States, 505 A.2d 59, 62 (D. C. 1986). Even if we were to rej ect the government's apparently reasonable contention that Chase's statements were properly admitted because they were made in furtherance of the conspiracy, Butler, supra, 481 A.2d at 439, we would find any error harmless because of the extensive identification and other evidence of guilt. See Kotteakos v. United States, 328 U.S. 750, 765 (1946). There was other evidence before the jury about the drug conspiracy involving appellant, Chase and the decedent. Moreover, there was sufficient evidence to prove each of the elements required by Butler, supra, 481 A.2d at 439, 441, including independent nonhearsay testimony that a conspiracy existed. Appellant additionally claims that "in many instances," the co-conspirator statements were beyond the scope of the judge's Drew ruling, and that admission of statements made by a deceased coconspirator violated appellant's Sixth Amendment right to confront witnesses. However, the statements directly concerned the specific debt that led to the decedent's beating and death and they did not violate appellant's Sixth Amendment rights. See United States v. lnadi, 475 U.S. 387, 395-400; Dutton v. Evans, 400 U.S. 74, 82-84 (1970); see
5

Chase was deceased at the time of trial.

also Butler, supra, 481 A.2d at 438, 442 n.18.

Grand Jury Testimony. Appellant contends that the prosecutor used grand jury testimony as sUbstantive evidence of his guilt rather than for impeachment. See Gray v. United States, 589 A.2d 912, 915 (D.C. 1991); if. Brooks v. United States, 448 A.2d 253, 258-59 (D.C. 1982). The record shows that the trial judge carefully controlled the prosecutor's use of the grand jury testimony and sustained several objections. The judge twice instructed the jury on the use of the prior testimony. The prosecutor also stated in closing argument that the grand jury testimony could not be considered for its truth, but only to evaluate credibility. Accordingly, we find no error in the trial judge's failure, sua sponte, to take further measures concerning the use of Williams' grand jury testimony. Cf Brooks, supra, 448 A.2d at 260. 6 Arguments to Jury. Appellant contends that parts of the prosecutor's arguments were inflammatory and improper. The prosecutor's opening argument that appellant's girlfriend "tried to stop [appellant] from doing it," was not an expression of the prosecutor's personal opinion but a permissible inference from the evidence that appellant asked his girlfriend to get the gun from the jeep's glove compartment, she refused, and he cursed her. See McGrier v. United States, 597 A.2d 36, 43 (D. C. 1991); Irick v. United States, 565 A.2d 26, 37-38 (D.C. 1989); Powell v. United States, 455 A.2d 405, 408, 410 & n.4a (D.C. 1982). The prosecutor's statement that the girlfriend "tried to do the right thing".was a fair inference from the girlfriend's refusal to get the gun. 7 However, the prosecutor's argument that the girlfriend said n[n]o we're going home, we're going to steak N Eggs, we don't need this, leave it alone," was unsupported by the evidence. See (Howard) But, since Jones v. United States, 512 A.2d 253, 257-58 (D.C. 1986). she refused to hand appellant the gun and the two later went to

6 Appellant contends that the prosecutor's use of the prior inconsistent grand jury testimony was "disorganized, contrary to usual practice" and "prejudicial," because the prosecutor had the witness read from the grand jury testimony, and the prior testimony was therefore presented as SUbstantive evidence. Cf Frederick v. United States, 472 A.2d 888, 889-90 (D.C. 1984). Any error in the prosecutor's form was harmless.

7 Appellant also contends that testimony that appellant's girlfriend said "no, " when asked to get appellant's gun was inadmissable hearsay. There was no objection at trial, and we find no plain error. See Watts, supra, 362 A.2d at 709. The testimony added only corroborative detail.

steak N Eggs, we find no plain error, especially given the strong evidence against appellant, the tangential relationship between the alleged statement and appellant's guilt, and the judge's instructions that counsels' arguments are not evidence and that the jury's memory of the evidence controls. Cf Lewis v. United States, 541 A.2d 145, 146-47, 149 (D.C. 1988). 8 Nor do we find plain error in the admission of testimony about Hughey's background and about pagers and portable telephones used by some witnesses. See Watts, supra, 362 A.2d at 709. Defense counsel objected to the form of the prosecutor's cross-examination about pagers and portable telephones, and on appeal he contends that such questions were irrelevant and implied criminal activity. See lvlcCoy v. United States, 518 A.2d 1013, 1016-17 (D.C. 1986), cert. denied, 485 U.S. 907 (1988). The prosecutor's questions about witnesses' possession of appellant's beeper and portable telephone, and their use of beepers to contact other persons who also testified at appellant I s trial, were proper to explicate the witnesses I relationships with appellant and their contact with other witnesses before the trial. Mere possession of a beeper is not per se evidence of a crime and does not trigger a Drew analysis. Cf Bigelow v. United States, 498 A.2d 210, 212-23 (D. C. 1985); Hawkins v. United States, 482 A.2d 1230, 1232 (D. C. 1984); qames) Jones v. United States, 477 A.2d 231, 237-38 (D.C. 1984). Identification evidence. Appellant I s contention that the trial judge erred in admitting out-of-court and in-court identifications by the decedent's friend, Carol Moses, is meritless. Appellant contends that a photographic array was impermissibly suggestive because it contained some photographs which had appeared in a previous array. The trial judge correctly applied the factors of Manson v. Brathwaite, 432 U.S. 98, 114-115 (1977), and Neil v. Biggers, 432 U.S. 188, 200-01 (1972), in findin~ that the photographs produced in court were not unduly suggestive, and that there were sufficient indicia of reliability and an

Appellant also contends that some of the prosecutor's remarks during opening, closing, and rebuttal argument were inflammatory. We find no plain error. See Irick, supra, 565 A.2d at 34-37; Doe v. United States, 583 A.2d 670, 676 (D.C. 1990); Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc); if. Dixon v. United States, 565 A.2d 72, 76-77 (D.C. 1989). The judge noted that there was confl icting testimony concerning how many arrays the witness had viewed and how many photographs were in each array, nor was it clear that all of the photographs shown to the witness had been made available to the court.
9

independent source for the witness' identification of appellant. The findings are supported by evidence that the witness viewed the shooter from approximately two feet, her attention was focused at the time of the observation, and she testified that she was very sure of her identifications of appellant. 10 Therefore, there is no basis to conclude that the trial judge erred in admitting the identifications. See Stewart v. United States, 490 A.2d 619, 623 (D. C. 1985).11
10 Appellant notes that Moses used approximately three bags of crack cocaine on the morning of the shooting, before making her observations at about 1:30 p.m. However, Moses testified that the "rushrt from using the drugs only lasted about five to ten minutes, and that at the time of her observations she was rtclear headed." Cf Williams v. United States, 595 A.2d 1003, 1006 (D. C. 1991). Appellant also asserts that Moses told the grand jury that Chase shot the victim. In fact, Moses told the grand jury n[t]hat Damon [Chase) had [the decedent] shot," (emphasis added), which is not the same as saying that Chase personally pulled the trigger. In addition, Moses distinguished between Chase and the shooter when she spoke to police on the day of the shooting, stating that the shooter was standing next to Chase during the fight.
11 We find no merit in appellant's remaining contentions. Appellant claims that his due process rights and Sixth Amendment right to an impartial jury were violated when the trial judge failed to voir dire the jurors individually during trial to determine whether they were exposed to episodes of a television program that contained reports about appellant. During pre-trial voir dire, the judge asked if any potential jury members had seen television or other media coverage of the case. Appellant concedes that the pretrial voir dire was adequate. See Welch v. United States, 466 A.2d 829, 837 (D.C. 1983). Throughout the trial, the judge repeatedly instructed the jury not to watch or listen to television or other media coverage of the case. Cj Moms v. United States, 564 A.2d 746, 748 (D.C. 1989): Welch, supra, 466 A.2d at 836. After closing arguments, defense counsel agreed that it was unnecessary for the judge to ask jurors about their exposure to the program. See Mitchell v. United States, 569 A.2d 177, 180 (D.C. 1990), cm. denied, 498 U.S. 986 (1990). Therefore, the trial judge did not err in failing sua sponte to individually voir dire the jury concerning exposure to the television program.

Nor did the trial judge err in failing to give a sua sponte "missing witness instruction," by which appellant appears to mean an instruction that a witness may be absent for many reasons and the jury is not to concern itself about why the witness has not testified. For example, the jury was read a stipulation stating (continued )

Accordingly, it is ORDERED and ADJUDGED that the judgment on appeal herein be, and hereby is, affirmed. FOR THE COURT:

copies to:

Honorable Ricardo H. Rubina Clerk, Superior Court Richard Todd Hunter, Esquire 801 North Pitt Street Suite 209, The Port Royal Alexandria, VA 22314 John R. Fiaher, Esquire Assistant United States Attorney

11 ( continued) that the jury should not consider why Chase was not on trial with appellant. It was not improper for the prosecutor to refer, during arguments to the jury, to appellant's girlfriend, who was present during the shooting and whose conduct was described by another witness, even though she did not testify. The girlfriend was not a missing witness because she was not peculiarly available to one party, but was present at the court house under subpoena during the trial. The prosecutor did not make a missing witness argument, and never even implied that appellant should have called his girlfriend as a witness or that her testimony would have been adverse to appellant. See Allen v. United States, 603 A.2d 1219, 1223 (D.C. 1992) (en banc) , cert. denied, 112 S. ct. 3050 (1992); McGrier v. United States, supra, 597 A.2d at 47-48; Lemon v. United States, 564 A.2d 1368, 137576 (D.C. 1989). There was no error.