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10/31/91 BOBBY E. HAZEL v. UNITED STATES

October 31, 1991

BOBBY E. HAZEL, APPELLANT
v.
UNITED STATES APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Robert A. Shuker, Trial Judge.

Steadman, Schwelb and Wagner, Associate Judges.

The opinion of the court was delivered by: Steadman

This case concerns a falling out between two partners in a drug operation -- appellant Bobby Hazel and his erstwhile colleague Walter Curry -- and their multiple venting of bad blood by shooting at each other in a variety of public settings. The two principal issues on appeal deal with, first, the admission of evidence of uncharged criminal acts as background to and occurring in the course of the on-going feud, assertedly in violation of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), and second, the trial court's reinstruction of the jury in appellant's involuntary absence, assertedly in violation of the right to be present at every stage of the trial under Super. Ct. Crim. R. 43(a). *fn1 We affirm.

I: The Facts

Appellant was charged in a seven count indictment with two counts of assault with intent to kill while armed (AWIKWA), D.C. Code §§ 22-501, -3202 (1989), two counts of carrying a pistol without a license, id. § 22-3204, conspiracy to kill, id. § 22-105a(a), obstruction of Justice, id. § 22-722(a)(1), and bribery, id. § 22-713(a)(1).

At the ensuing trial before a jury, the government was permitted to present evidence establishing the following series of events. During late 1982 and early 1983, Curry, appellant, and a number of others were all confederates in a drug operation. On January 11, 1983, at appellant's behest, Terry Caison, who was not part of the drug operation, and appellant broke into an apartment in Maryland and stole a safe where drug proceeds were stored. Curry suspected appellant of the theft, confronted him, and demanded return of his portion of the cash. Appellant denied the theft and refused to pay Curry.

Then began a series of violent reprisals. In immediate retaliation that same day, Curry stole heroin from two of appellant's "runners" and a gave it out free on the streets. The next day, January 12, Curry again went to demand his money, but when appellant saw him coming, appellant commenced shooting at Curry, chasing Curry through the street until he escaped by climbing over a fence. Thereafter, appellant drove to Curry's residence, and again engaged Curry in a gun battle in the streets. None of these shootings resulted in any of the charged against appellant.

On February 13, 1983, Curry and a friend were sitting in a Rib Pit restaurant when Curry was suddenly hit by three bullets. An ambulance took Curry to Howard University Hospital. Curry identified appellant as his assailant. For this shooting, appellant was charged with one of the counts of AWIKWA and one of the counts of carrying a pistol without a license.

During Curry's stay in the hospital from February 13th through the 16th, appellant allegedly conspired with Caison and two women to have Caison kill Curry in his hospital bed. This formed the basis for the conspiracy count.

On February 21, 1983, after his release from the hospital, Curry again saw appellant on the street, and a gun battle ensued, allegedly initiated by appellant, including a chase into a Popeye's eatery. This incident did not result in any charges against appellant.

After a period of relative calm, on May 19, 1984, appellant shot Curry one final time as Curry sat on a stoop talking to a friend. Curry was hit in the chest and, after he raised his arm to protect himself, in the arm. Curry and his friend identified appellant as the gunman. This was the conduct subjecting appellant to the second set of charges of AWIKWA and carrying a pistol without a license.

On June 26, 1984, in the District of Columbia jail, appellant allegedly offered Curry money if he would refuse to testify against him. This conduct generated the obstruction of Justice and bribery counts.

The trial court dismissed the obstruction count, and appellant was found not guilty of the bribery and conspiracy counts. He was convicted of both AWIKWA counts and the related ...


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