Appeal from the Superior Court of the District of Columbia; (Hon. Gladys Kessler, Trial Judge)
Before Ferren, Steadman and Wagner, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge:
Appellant, John E. Settles, appeals from his conviction of second-degree murder while armed for the shooting of his twelve-year-old nephew. *fn1 On appeal, appellant challenges three rulings of the trial court: (1) the trial court's admission of evidence that appellant was "high" from ingesting drugs in the hours preceding the murder; (2) the trial court's denial of his motion to suppress the murder weapon; and (3) the trial court's denial of a motion for mistrial based on the prosecutor's allegedly improper appeal to the passions and prejudices of the jury in her opening statement and closing argument. *fn2 We conclude that even if the admission of testimony about appellant's drug use was error, the error was harmless in light of the special circumstances of this case, most notably the appellant's own, properly admitted statements, also in evidence, about his drug use at the time of the murder. Second, we perceive no error in the trial court's denial of the motion to suppress the murder weapon in light of the trial court's factual findings and this court's decision in Clark v. United States, 593 A.2d 186 (D.C. 1991). Finally, we conclude that the prosecutor's comments do not constitute a basis for reversing appellant's convictions. Accordingly, we affirm.
At the time of the murder, appellant resided at 236 37th Place, Southeast, with his sister, Eleanor Settles, and her four children, one of whom was the decedent, Mark Settles. Shortly after 2:45 p.m. on December 17, 1987, one of the Settles's neighbors, Pamela Lucas, heard four gunshots coming from the direction of the Settleses's home as she passed the home after picking up her son from school. *fn3 Thirty to forty-five minutes later, Eleanor Settles returned to her home and found the bodies of her son and the family dog on the floor of the house. Appellant, who apparently was unconscious, also lay prone on the floor, but at some point he regained consciousness and began to shout that his nephew had been shot. Police soon arrived on the scene, and appellant was taken to D.C. General Hospital for treatment of a bullet wound to his left leg, near his kneecap. The police also cordoned off the house, keeping the growing crowd of bystanders, which by now included many family members, from entering the house until the bodies of Mark Settles and the dog had been removed. Sometime within one-half hour of their arrival, the police on the scene received a telephone call from the homicide office of the Metropolitan Police Department informing them that Bernard Williams, who had been one of the first to arrive on the scene and who had been transported to the homicide office to give a statement, had spotted a gun near the body of the dog. Based on this tip, the police located the gun in plain view along the wallboard and protruding from under the back of the dog. A subsequent examination of the gun revealed that it contained four shell casings, one live round, and one empty chamber.
Although the detectives investigating the murder initially regarded appellant as a victim, appellant's conflicting accounts of the incident soon led them to regard him as a suspect. In his second statement to the police, *fn4 given the day after the shooting, appellant stated that he and Mark had been alone in the house shortly before the shooting when they heard a knock at the door. Moments after Mark answered the door, appellant heard two gunshots, and a gun had appeared around the corner and fired, wounding him in the leg. Appellant denied that he had a weapon, but he admitted to firing a gun at someone named Bruce *fn5 the day before the murder, and he identified the gun the police found in his house as the gun he had fired. When asked if he had shot Mark, appellant replied "not to my knowledge." Finally, appellant acknowledged that he had smoked one joint of marijuana laced with cocaine shortly before the murder, and that he may have consumed a beer as well.
Appellant was arrested in connection with the shootings on January 5, 1988, and he confessed to the crimes in an audio-taped statement made shortly thereafter. In his confession, appellant stated that he had precipitated an argument with his nephew by telling him not to associate with neighborhood drug dealers, and that at some point the two began to struggle over appellant's gun. According to appellant, " shot my leg first and I didn't mean to shoot him in the head but . . . I tried to shoot him in the shoulder you know just to wound him 'cause, [as I] say, I was kinda nervous and kinda mellow high . . . it wasn't no delirious high. . . . The dog was right there and he was like a little upset, he was ready to bite me, you know. So I had to shoot the dog too. (Final ellipsis supplied). Later in his confession, appellant elaborated on the circumstances surrounding his shooting of his nephew, stating that Mark had reached for the gun first, appellant had grabbed the barrel, and that Mark had shot appellant in the leg in the ensuing struggle. Mark then ran for the back door, saying "No, John, no . . . as if he ain't meant to shoot me," and appellant shot him as he was trying to cut around the corner. Appellant also described the quantity of the drugs he had consumed the day of the murder, and the effect of the drugs on him at the time he shot his nephew. According to appellant, he had had "a little bit of cocaine," which had led him to "drive a little shaky" and had produced the "kinda mellow high."
Appellant's audio-taped confession was admitted into evidence and played for the jury. In addition, the government introduced other evidence that corroborated details of the confession. Specifically, a government expert testified that the bullets in the bodies of Mark Settles and the dog were fired from the gun that appellant had admitted was his. Expert testimony also was admitted to show that the bullets were fired from behind Mark Settles and the dog, a fact that corroborated appellant's statement that he shot his nephew while he was running away and that was consistent with expert testimony that dogs normally run away from loud noises such as gunshots. The government also introduced evidence that appellant's wound was consistent with either a struggle over the gun or with self-infliction. Finally, and over vehement defense objection, the government elicited testimony regarding appellant's drug use the day of the murder and the effect of the drugs on appellant's behavior.
Appellant's primary contention on appeal is that the trial court erred in admitting the testimony of appellant's drug use on the day of the murder under the motive exception of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964). The trial court concluded that the evidence fell under the motive exception "in the sense of explanation for the cause of [appellant's] conduct" and concluded that its probative value outweighed its potential for prejudice. However, we need not determine whether the admission of the challenged evidence comported with our jurisprudence in this area. Rather, we conclude that, under the particular circumstances of this case, any error in admitting the evidence was harmless under the standard of Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). Appellant confessed to the crime, and in doing so described his drug use and his mental state at the time of the murder. As explained below, the witnesses's testimony and appellant's properly admitted statements about his drug use were substantially similar, and to the extent that the testimony was richer in detail, those details were not exploited -- indeed, they were hardly mentioned -- by the government.
In this regard, we make note at the outset that this case is very different from Coates v. United States, 558 A.2d 1148 (D.C. 1989) and Durant v. United States, 551 A.2d 1318 (D.C. 1988), relied on by appellant, both of which involved the admissibility of evidence of use of PCP for purposes of impeachment. In Coates, we affirmed the trial court's decision to exclude expert testimony that would have built on previously-admitted evidence of the victim's PCP use by discussing the effects of PCP use on memory even though the expert had not spoken with the victim about her drug use and hence had "proffered no testimony about her personal reaction to PCP." 558 A.2d at 1154. The proffered testimony in Coates would not have been duplicative of other evidence before the jury, and we found that the trial court had acted within its discretion in concluding that the expert witness's qualifications for making the proposed assertions had not been sufficiently established. Id. Similarly, admissibility of the evidence at issue in Durant -- medical records of a urine sample showing the defendant's use of PCP offered to impeach his memory and perception of events occurring the day before the sample was taken -- turned on the fact that the challenged evidence, which was the only evidence that related to the defendant's perception and memory, lacked a proper foundation for its admissibility. 551 A.2d at 1326-28. In the instant case, by contrast, the challenged testimony significantly overlapped appellant's own statements about his drug use.
We turn to the challenged testimony. Three witnesses testified at trial about appellant's drug use on the day of the offense. Calvin Sims, a friend of appellant's, testified that, at some undetermined time after 11:30 a.m. on the day of the murder, he, appellant, and two others named Bobby and Duke shared two joints of PCP laced with cocaine. *fn6 According to Sims, appellant did not act as though he was high at this point. Sims, appellant, Bobby and a fourth person later shared another two joints of PCP laced with cocaine. Sims was unable to recall how much of any of the four joints appellant had smoked, but he testified that appellant was acting "confused" and was driving slowly with his headlights on, beeping the car horn to the beat of go-go music. Sims concluded his testimony by stating, in somewhat contradictory fashion, that during the drive appellant seemed high to him, but that he "couldn't tell if he was high or how high or whatever." Wanda Crawford testified that she saw appellant, Sims, Bobby, and "Wire Bond" sitting in appellant's car, which was parked outside appellant's house, at approximately 2:00 p.m., and that she could tell that the four of them were smoking "boat" *fn7 by the odor emanating from the car. Crawford further testified that when appellant got out of the car, she was able to tell that he was high from "the way he was walking" and from "his eyes." Finally, Alan Forrest, appellant's nephew and the decedent's first cousin, testified that he drove with appellant in his car at approximately 12:00 or 12:30 p.m., and that appellant was not acting himself, was driving the car fast, and seemed high.
Appellant's statements, including three in which he described his drug usage on the day of the offense, were introduced later in the government's case-in-chief. In his December 18, 1987 statement, appellant stated that he had smoked "one joint of marijuana with cocaine on it" while with Calvin Sims at about 2:00 p.m. or 2:30 p.m. In response to the question of whether he had been drinking that day, appellant stated that he had had "[at most] one beer." In his December 31, 1987 statement, appellant reiterated that he had smoked marijuana laced with cocaine on the day of the murder. Appellant provided additional details of his drug use on the day in question in his January 5, 1988 confession. In his confession, appellant related that in the early afternoon he had driven Bobby Wilkes to his house and, once there, had "had a little bit of cocaine." According to appellant, at this point "me and Calvin drove back home together, and I was driving a little shaky but I made it to my house." Finally, ...