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November 29, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Ronald P. Wertheim, Motions Judge; Hon. Stephen F. Eilperin, Trial Judge

Belson and Schwelb, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Schwelb

Thorne was convicted of distribution of preludin in connection with an incident which occurred on June 4, 1983 (Count 1). He was acquitted of distribution of heroin in relation to an incident which occurred on November 6, 1983 (Count 3). He appeals from his conviction on Count I, contending that that count should have been severed from Count 3 and that the government engaged in prosecutorial misconduct by purposely securing an invalid indictment on Count 3. We affirm.

Counts 1 and 3 involved crimes of a similar character, and were properly joined pursuant to Super. Ct. Crim. R. 8 (a) and D.C. Code § 23-311 (a) (1989). Winestock v. United States, 429 A.2d 519, 524-25 (D.C. 1981). Thorne filed a pretrial motion for severance pursuant to Super. Ct. Crim. R. 14. Although Count 2 (relating to an incident which occurred on October 7, 1983) was severed from the others with the prosecutor's consent, it does not appear from the jacket that Judge Wertheim, the motions Judge, ever ruled on the motion to sever Count 1 from Count 3, which the government opposed. *fn1

The case came to trial in January 1985 before Judge Eilperin. So far as we can discern, the pendency of the motion to sever was never brought to the Judge's attention, nor did Thorne's counsel ever renew the motion on the basis of any specific prejudice occurring during the trial. Under these circumstances, Judge Eilperin could not reasonably be expected to sever the counts sua sponte. A party who neglects to seek a ruling on his motion fails to preserve the issue for appeal. United States v. Wagoner, 713 F.2d 1371, 1374 (8th Cir. 1983); Donahoo v. State, 552 So. 2d 887, 895 (Ala. 1989); see also Hunsucker v. State, 160 Ga. App. 846, 287 S.E.2d 689, 690 (1982) (defendant must secure ruling from trial Judge on motion for severance ill order to obtain appellate review).

In the present case, there was no manifest inJustice, for "courts, including our own, have . . . found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials." Arnold v. United States, 358 A.2d 335, 338 (D.C. 1976) (en banc) (quoting Drew v. United States, 118 U.S. App. D.C. 11, 17, 331 F.2d 85, 91 (1964)); see also Winestock, supra, 429 A.2d at 527. *fn2 The prosecutor presented the evidence of the two offenses separately and distinctly, and judge Eilperin properly instructed the jury that each should be considered separately. There was no error.

Thorne also claims that the government engaged in misconduct in relation to Count 3 because the chemical analysis by the Drug Enforcement Administration of the material which he allegedly sold to Wood on November 6, 1983 had revealed that it contained only traces of heroin, rather than a usable amount. See Wishop v. United States, 531 A.2d 1005, 1009 (D.C. 1987). Thorne's theory is that the government improperly obtained an indictment and used it to prejudice the jury against him in obtaining his conviction on the preludin count. *fn3 The existence of a usable amount may, however, be established by circumstantial evidence. Bernard v. United States, 575 A.2d 1191, 1193 (D.C. 1990). The government presented substantial evidence that the amount sold was usable (e.g., a "quarter" of heroin was sold; it was in a glassine bag customarily used for sales of a usable amount, and the buyer attempted to inject it). See Wishop, supra, 531 A.2d at 1009.

We should not attribute sinister motives to the prosecutor without a good deal more evidence than this. Cf. Donnelly v. DeChristoforo, 416 U.S. 637, 643-44, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Accordingly, we hold that Thorne did not establish prosecutorial misconduct.

For the foregoing reasons, the judgment appealed from is hereby Affirmed.

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