Appeals from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge)
Before Rogers, Chief Judge, and Ferren and Steadman, Associate Judges.
The opinion of the court was delivered by: Steadman
Steadman, Associate Judge: Appellants Lemuel Kenley and Dina Jamison were occupants *fn1 of a two-story row house in which quantities of cocaine, with an estimated street value of $3,000, and related drug packaging paraphernalia were seized pursuant to a search warrant. *fn2 In a joint jury trial, each was convicted on one count of possession of cocaine with intent to distribute, D.C. Code § 33-541(a)(1) (1988), and one count of possession of drug paraphernalia. Id. § 33-603(a). *fn3
The principal trial errors asserted on appeal are: 1) the government's introduction into evidence of Jamison's withdrawal of large sums of money from her bank account following her arrest; 2) the impeachment of Jamison with the results of a post-arrest drug test and a refusal to sever as a result of this impeachment; and 3) the refusal to permit the defense to introduce evidence of cocaine possession by a son of Jamison who, although living elsewhere, had free access to the home. *fn4 Jamison also challenges the imposition of a probationary sentence upon her without her consent. We affirm the convictions but remand for a resentencing of Jamison.
Jamison and Kenley were arrested on a Friday, three days after the police raid, and released on their own recognizance. The following Monday, they went to the bank where Jamison had an account and attempted to withdraw all the money she had on deposit. She withdrew $5,000 in cash, and, because the branch had no further cash to spare, obtained a cashier's check for the remaining balance, approximately $8,000. The check was made payable to Kenley's brother, who was with Jamison in the bank. Kenley himself was waiting outside in the car. Jamison took the check to the main office of the branch to cash. When she arrived there, she was met by police officers who seized both the cash and the cashier's check as suspected proceeds of crime.
The bulk of the $13,000 in the account had been deposited there in the week or two preceding the arrest. Jamison asserted that $2,500 of the money was from Kenley (who had no bank account of his own), *fn5 $7,100 represented the proceeds from the sale of her car, and $3,700 represented cash savings from a credit union account and other sources. She said she intended to use the money upon withdrawal for a new car, payment of an attorney for fees in connection with her house, and dental work, and was withdrawing it because "it was my money, and I felt as though I didn't want them [the police] to have it, because I had things that I had saved it for." *fn6 She also volunteered that the reason she had obtained the cashier's check in Kenley's brother's name was so that "they can't take my money off me." Subsequently, in response to a question whether the check had been seized by the police when she arrived at the bank's main office, she responded, "Right. And that's what I was trying to avoid. That's the reason I was going to get my money earlier."
All this information with respect to the withdrawal of funds came into evidence through the cross-examination, over defense objection, of Jamison by the government. The government argues that the evidence of Jamison's withdrawal of funds is probative of consciousness of guilt. *fn7 Using the same theme with a reverse twist, the appellants argue that this very feature brings it within the stricture of Drew v. United States, 118 App. D.C. 11, 331 F.2d 85 (1964), which in general prohibits the introduction of "bad acts" committed by the defendants except in certain limited circumstances and subject to cautionary instructions. In particular, the appellants object to the questioning of Jamison by the prosecutor as to her awareness of the process of forfeiture of proceeds of narcotics trafficking, *fn8 which took place following the testimony about the seizure of the check and the cash at the bank's main office.
Assuming without deciding that the course of questioning about the bank account withdrawal was properly subject in whole or in part to objection under Drew, we do not think that it was so prejudicial in the circumstances here as to mandate reversal. The probative value of the joint involvement of appellants in the account and the withdrawal made from it, including the issue of motivation, was considerable when weighed against possible prejudice. Albeit in cross-examination, it was Jamison herself who first presented the explanation that she had withdrawn the money, at least in part, because "I felt as though I didn't want them [the police] to have it." The prosecutor's inquiry further into this concern as being motivated by knowledge of the drug forfeiture law occupied less than three pages of transcript in the course of lengthy testimony by Jamison. Jamison denied anything more than awareness of the general concept of forfeiture, without knowledge of the procedures and details, and fully expounded to the jury her explanation of why she had withdrawn the funds at that time. At no point in closing argument did the prosecutor allude to the fear of forfeiture; indeed, the government made no mention at all of the post-arrest events with respect to the bank account. *fn9 Moreover, the evidence against appellants on the underlying charge was strong. The home was owned and lived in by Jamison with two of her children; Kenley had also resided in the home for some time before the search. See note 1 (supra) . Within this home, located at various places including the kitchen, dining room and appellants' bedroom, the police seized a considerable quantity of drugs, cash, firearms and ammunition, and a wide range of drug packaging equipment and supplies. The only real issue was appellants' denial of any knowledge of these items or their use, as to which both appellants testified and were subject to jury assessment of credibility.
Given all the circumstances, we are unable to conclude that any error in the scope of the permitted cross-examination of Jamison warrants reversal for a new trial.
Jamison contends that the trial court erred by allowing the prosecutor to impeach her with questions about her post-arrest drug test which purportedly tested positive for cocaine use. Our decision in Jones v. United States, 548 A.2d 35, 39 (D.C. 1988) establishes that such questioning was plainly proper. In that case, the appellant had testified that he found the packets of cocaine and was unaware of their contents. Thus, the prosecutor's questions on cross-examination about the appellant's prior cocaine use "comprised legitimate exploration of two issues that appellant himself had raised: his sophistication with respect to drugs and his general credibility." Id. Likewise here, Jamison on direct examination had denied any cocaine use and indeed denied having ever seen cocaine. Her defense was innocent presence; i.e., she claimed she was unaware that any drugs were located in her home. The prosecutor's questions bore directly on this direct testimony. *fn10 Moreover, the prosecutor clearly had a factual predicate for asking the questions; as the trial court noted, the Pretrial Services Agency report indicating current drug use was in the case jacket, available to everyone. The government was not compelled to impeach Jamison only by proof of the tests themselves. See Sherer v. United States, 470 A.2d 732, 738 (D.C. 1983), cert. denied, 469 U.S. 931, 83 L.Ed.2d. 262, 105 S. Ct. 325 (1984); Jones, supra, 548 A.2d at 39. *fn11
Following this line of questioning, Kenley moved for severance. He asserts the trial court abused its discretion in denying this motion. "When two or more persons are charged with jointly committing a criminal offense, a strong presumption arises that they will be tried together." Tillman v. United States, 519 A.2d 166, 169 (D.C. 1986). Hence, this court will reverse a denial of a motion for severance "only upon a clear showing that the broad discretion accorded the trial court in this regard has been abused. To demonstrate that the trial court abused its discretion in denying their severance motions, appellants must show not simply that they were prejudiced but that they suffered 'manifest prejudice' from the joinder of their cases." Payne v. United States, 516 A.2d 484, 489 (D.C. 1986) (citation omitted).
In substance, Kenley asserts that his and Jamison's defenses were intertwined, and if the jury believed that Jamison used cocaine, his case was irretrievably affected. However, it is not enough that part of the evidence at trial is applicable only to a co-defendant or that the evidence against one defendant is more damaging than the evidence against another. Id. at 490-92. The impeachment of Jamison was incomplete; she denied knowledge of the test result and the government did not present extrinsic evidence of the drug test itself. Nor did the test directly implicate Kenley. Moreover, the drug test impeachment questioning formed only a small part of the substantial evidence against appellants. Unlike the situation in Hordge v. United States, 54 ...