September 9, 1993
BRUCE E. VOID, APPELLANT
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Stephen F. Eilperin, Motions Judge), (Hon. Steffen W. Graae, Trial Judge)
Before Rogers, Chief Judge, and Terry, Associate Judge, and Belson, Senior Judge.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge : Appellant Bruce E. Void appeals his convictions by a jury of conspiracy to distribute and possess with the intent to distribute phencyclidine ("PCP") and cocaine, in violation of D.C. Code § 33-541 (a)(1) and § 33-549 (Repl. 1988) and first-degree murder while armed, in violation of D.C. Code § 22-2401 and § 22-3202 (Repl. 1989). On appeal, his principal contentions are that the motions Judge erred by denying the motion to sever the conspiracy and murder charges under Super. Ct. Crim. R. 14, and that the trial Judge erred by denying the motion for a mistrial as a result of prejudicial, improper remarks made by the prosecutor in opening and closing arguments to the jury. *fn1 We affirm.
The Conspiracy. At trial, the government sought to prove that Tyrone Carrington (the decedent), William Johnson, and appellant had been partners and co-conspirators in a cocaine and PCP distribution operation that went awry. According to the government's evidence, appellant and Johnson entered a partnership in 1987 to sell cocaine and PCP in southeast Washington, D.C. One of the wholesalers from whom they purchased cocaine was Tyrone Carrington. In the summer of 1988, appellant and Johnson would buy as much as five to six ounces of cocaine at a time from Carrington. As the relationship proved mutually prosperous, Carrington decided in the fall of 1988 to take appellant and Johnson into his operation as partners. Instead of selling the cocaine to appellant and Johnson, he would distribute the drugs to them and the profits would be split three ways. The three men also became "very close" on a personal level, frequently socializing with each other.
Business for the trio continued to prosper throughout 1989, with the partnership's business primarily operating out of two apartments. One was the apartment of Crystal Brown, who was Carrington's girlfriend, on Glassmanor Drive in Oxon Hill, Maryland. Typically, every two or three days in 1989, Johnson and Carrington would bring a kilogram of cocaine, which cost between $20,000 and $25,000 wholesale, to the Glassmanor apartment and supervise its "cooking" into crystalline crack form. After ten ounces had been prepared for distribution, appellant and Johnson would distribute it to their street-level sellers. Later they would collect the money from these sellers and give it to Crystal Brown, who would place the money along with the remaining twenty-six ounces of cocaine in her closet. The other base of the partnership's operation was Johnson's apartment in Temple Hills, Maryland, which was used mainly to prepare and store the PCP for distribution.
During the summer of 1989, a schism surfaced among the three partners. Apparently, appellant began to distrust Carrington and discussed his concerns with his girlfriend and Johnson. *fn2 In the meantime, however, Carrington and Johnson continued to grow closer. Bothered by this newfound closeness, appellant began to withdraw from the threesome's social activities. The three did, however, take a week long cruise together in August of 1989. *fn3 Appellant and Johnson discussed the situation, and Johnson informed appellant that Carrington had said that he would like to see appellant dead and had tried to convince Johnson to do the job. Johnson also told appellant they had purposely tried to provoke appellant on one occasion. After the cruise, Carrington told a girlfriend that he wanted to "get away" from Johnson and switch to a legitimate career in real estate.
The Murder. On August 31, 1989, one day before Carrington's murder, appellant, Johnson, and Carrington obtained a kilogram of cocaine and conducted their usual practice of preparing it for distribution at the Glassmanor apartment. Consistent with practice, the remaining cocaine that had not been "cooked" was placed in the closet where Crystal Brown had put the 9 mm. pistol and pump shotgun that Johnson asked her to store. See supra note 3.
According to Crystal Brown, at 9:45 p.m. on September 1, 1989, she "beeped" Carrington from a telephone booth on Kenilworth Avenue on her way to a disco. A short time later, Carrington arrived in his black Corvette with Johnson in the passenger's seat. Ms. Brown testified that appellant was driving his black truck alone behind the Corvette. After a brief conversation, Carrington and Johnson drove off with appellant following them. Before going to the disco, Ms. Brown stopped at her Glassmanor apartment and instructed Carlos Carrington, who was Tyrone Carrington's thirteen-year-old son, and Calvin Moore III, who was Ms. Brown's twelve-year-old brother, "to lock the door, not to answer the door but to answer the phone." After she left the apartment, she made sure that both locks on the door were secured.
Sometime after the meeting with Ms. Brown, Carrington, Johnson, and appellant drove to 2730 Langston Lane, S.E., where Carrington met Clarine Howard, who was one of Carrington's street sellers. Ms. Howard testified that after she turned over money from her PCP sales to Carrington, she went outside and watched Carrington and Johnson drive away in a black sports car. She also thought that there was a black "Blazer" on the road at the time, but she could not precisely recall its path. *fn4 Moments later, Ms. Howard discovered Carrington dead in the car on Hartford Street.
Officer Samuel Howard heard one or more gunshots, proceeded in his cruiser to the intersection of 22nd and Hartford Streets, and found Carrington slumped over at the wheel of the Corvette. Carrington had been shot twice in the head, once from each side. *fn5 The car doors were closed but unlocked; the headlights were on, and the engine was off but warm. The officer did not find either the key chain, which contained a key to Crystal Brown's Glassmanor apartment, or the car telephone.
The Break-In. Approximately five minutes after Carrington was shot, a telephone call was made from Carrington's portable telephone to Crystal Brown's Glassmanor Drive apartment. Three minutes later, at 11:31 p.m., another telephone call was made to the Glassmanor Drive apartment, this time on appellant's portable telephone. A next-door neighbor testified that at about 12:11 a.m., he heard three gunshots come from inside Ms. Brown's apartment. *fn6 When Ms. Brown arrived home from the disco, she found the bottom (automatic) lock locked. Although there was no sign of forced entry, she discovered that her apartment had been entered; the apartment was in disarray, and the money, drugs, and guns that she kept in the closet were gone. *fn7 The police recovered three .45 caliber shell casings and bullets from the apartment; expert evidence showed that the .45 caliber pistol fired in the Glassmanor apartment that night was the same one fired at the scene of Carrington's murder.
A week later, while sitting in appellant's truck, appellant and Johnson were arrested for Carrington's murder. The police recovered from Johnson the 9 mm. pistol that had been stolen from the Glassmanor apartment on the night of Carrington's murder. The jury found appellant guilty of conspiracy to distribute and possess illegal drugs with intent to distribute and first-degree murder while armed. *fn8
Appellant contends that the motions Judge erred in denying the motion to sever the conspiracy and murder counts under Rule 14 because of the prejudice resulting from the introduction of evidence of appellant's involvement in a drug conspiracy. *fn9 He maintains that the evidence of the conspiracy was not separate and distinct from the murder and related charges, and that the motions Judge misinterpreted applicable authority on the identity exception under Drew. *fn10 Appellant argues that while the evidence of the crimes at the Glassmanor apartment tended to prove the identity of Carrington's killer insofar as it implicated William Johnson," it did not likewise connect appellant to the killing because he was not as clearly linked to the entry. He concedes that evidence of the murder would have been admissible at a conspiracy trial, but be contends that the evidence of the offenses at the Glassmanor apartment would not have been admissible as proof of appellant's involvement in Carrington's killing since "the conspiracy count little more than a pretext for evading the Drew requirement." *fn12 Appellant argues that the Glassmanor apartment offenses evidence served only to bolster the government's case against him for murder through propensity inferences, noting the trial Judge's observation that the whole trial was "permeated with the Maryland evidence." Hence, appellant contends that because he suffered compelling prejudice from the joinder of the offenses, reversal is warranted.
Strong policy reasons exist in favor of joint trials where offenses have been properly joined under Super. Ct. Crim. R. 8 (a). See Sousa v. United States, 400 A.2d 1036, 1040 (D.C.), cert. denied, 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484 (1979); see also Arnold v. United States, 511 A.2d 399, 404 (D.C. 1986) (citations omitted). Indeed, severance is only necessary "when a defendant cannot receive a fair trial." Baxter v. United States, 352 A.2d 383, 385 (D.C. 1976). Under Rule 14, offenses should be severed:
"unless (1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others."
Cox v. United States, 498 A.2d 231, 235 (D.C. 1985) (quoting Bridges v. United States, 381 A.2d 1073, 1075 (D.C. 1977), cert. denied, 439 U.S. 842, 58 L. Ed. 2d 141, 99 S. Ct. 135 (1978)). See also Coleman v. United States, 619 A.2d 40, 43-44 (D.C. 1993). The decision to sever is committed to the sound discretion of the trial Judge and will be reversed "only upon a showing of the 'most compelling prejudice.'" West v. United States, 599 A.2d 788, 791 (D.C. 1991) (quoting In re S.G., 581 A.2d 771, 776 (D.C. 1990)). See Gooch v. United States, 609 A.2d 259, 264 (D.C. 1992); Winestock v. United States, 429 A.2d 519, 526-27 (D.C. 1981). Moreover, the court has recognized that "conspiracy cases are sui generis with respect to the admission of evidence," with "wide latitude" being accorded to the trial court. Holmes v. United States, 580 A.2d 1259, 1268 (D.C. 1990) (citation omitted). For several reasons, we conclude that the trial Judge properly denied appellant's motion for severance.
First, the similarities in the Glassmanor offenses and the murder rendered highly likely the possibility that they were committed by the same person or persons. Evidence that the fruits of one crime have been used to carry out a subsequent crime clearly may cause the crimes to be sufficiently "connected together" to warrant their being tried together. See Blunt v. United States, 131 U.S. App. D.C. 306, 311, 404 F.2d 1283, 1288 (1968) (citation omitted), cert. denied, 394 U.S. 909, 22 L. Ed. 2d 221, 89 S. Ct. 1021 (1969); United States v. Leonard, 144 U.S. App. D.C. 164, 166, 445 F.2d 234, 236 (1971) (citation omitted). *fn13 In Blunt, supra, 131 U.S. App. D.C. at 308, 404 F.2d at 1285, where a checkbook was stolen and then used to commit frauds, forgeries, and utterings, the counts were all tried together. The United States Court of Appeals for the District of Columbia Circuit upheld the joinder, reasoning that "the theft of the checkbook used hours later to commit the fraud and the forgeries is 'connected together' with these latter offenses within the meaning of [Rule 8]." Id. Similarly, in Leonard, supra, 144 U.S. App. D.C. at 166, 445 F.2d at 236, the same court rejected the defendant's Rule 14 prejudice challenge to the joint trial of charges for burglary and subsequent fraudulent use of a credit card stolen in the initial burglary.
The motions Judge could reasonably find that the evidence of the break-in of the Glassmanor apartment was clearly "connected together" with the murder of Tyrone Carrington. Appellant concedes in his brief on appeal that "the available evidence did link the shooting of Tyrone Carrington to the entry at Glassmanor Drive . . . ." The government offered proof that whoever killed Carrington obviously had knowledge of the intricacies of his drug business. The persons who killed Carrington, the only partner who had keys to the apartment where the partnership assets were stored, took his keyring. Within fifty minutes of the discovery of Carrington's body, his keys were used to enter the apartment for the purpose of taking only the partnership assets that were kept there. Given the unforced entry, a reasonable inference was that whoever killed Carrington and stole his keyring, used the keys to get into the Glassmanor apartment in order to steal the drugs, money, and gun. Once in the apartment, whoever broke in was familiar enough with the operation to know that those items were stored in the bedroom closet, as evidenced by the fact that little else was disturbed in the apartment. Further, the same gun used to kill Carrington was also fired three times in the Glassmanor apartment. As in Leonard, supra, both crimes were similar in their "inside job" characteristics and "the facts impelled the Conclusion that the burglary was perpetrated by someone who knew precisely where various items in the house were kept." 144 U.S. App. D.C. at 165, 445 F.2d at 235 (footnote omitted).
Second, under the Drew analysis, evidence of the conspiracy and murder charges would have been mutually admissible at separate trials. Evidence of the drug conspiracy and crimes at the Glassmanor apartment was admissible to show appellant's motive to kill and, inferentially, his identity as one of Carrington's killers. The court has stated that "other crimes evidence may be admitted to show the defendant's motive, even though motive is not an element of the offense charged or a contested issue, where identity is a contested issue and evidence of motive may help to prove identity." Robinson v. United States, 623 A.2d 1234, 1239 (D.C. 1993) (citing Hazel v. United States, 599 A.2d 38, 41-42 (D.C. 1991), cert. denied, 121 L. Ed. 2d 286, 113 S. Ct. 374 (1992); Green v. United States, 580 A.2d 1325, 1328 (D.C. 1990)). See also Hill v. United States, 600 A.2d 58, 61 (D.C. 1991). When motive evidence is offered to show identity, the court must consider two factors -- the extent to which the suggested motive is peculiar to the defendant, and whether the motive attributed to the defendant particularly concerns the victim of the crime charged. Robinson, supra, 623 A.2d at 1239.
In the instant case, the suggested motive was unique to appellant and his codefendant. The government's theory was that Carrington, the reluctant partner and supplier who had expressed a desire to get out of the drug business, had been murdered by his two partners. According to the government's evidence, appellant and Johnson were pleased with their profitable drug operation and did not want to see it come to an end. On the other hand, Carrington wanted out, and he was trying to put together sufficient capital to go into the real estate business. Appellant thought Carrington was siphoning off partnership assets. To this extent, the details concerning the drug business, which formed the basis of the conspiracy charge, were admissible to demonstrate why appellant, as one of the three partners, would have a motive to kill Carrington, the partner who wanted out. See Daniels v. United States, 613 A.2d 342, 344, 348 (D.C. 1992) (evidence of defendants' drug operation properly admitted at murder trial where such evidence established their motive to kill competitor in drug sales); Yelverton v. United States, 606 A.2d 181, 182-83 (D.C. 1992) (evidence of drug debt owed to defendant by victim properly admitted to show defendant's motive and identity).
Furthermore, evidence of the subsequent theft of the drugs, money, and guns was admissible as further evidence of appellant's motive, which was probative of identity by inference that whoever killed Carrington had also stolen his keys in order to gain entry into the apartment to recover the partnership assets. The evidence of the careful and deliberate raiding of the Glassmanor apartment also uniquely linked the two partners -- appellant and Johnson -- to the crimes because whoever removed the drugs, money, and guns apparently knew exactly where to find them. In addition, a pistol that had been stolen from the apartment that night, see supra note 3, was found on Johnson one week after the murder when he was arrested while sitting in appellant's truck. Although the evidence connecting Johnson to the Glassmanor apartment break-in was stronger, the evidence that a telephone call was made to the apartment on appellant's cellular truck telephone very shortly after Carrington was murdered connected appellant to the break-in, given his business relationship with Johnson and Carrington.
Finally, the motive attributed to appellant is particularly related to Carrington, the decedent. Clearly the conspiracy evidence stemming from the drug operation was probative on this point. The personal enmity between appellant and Carrington was mutual and related to their drug business. Appellant not only thought that Carrington was siphoning off partnership assets for himself, but he was aware that Carrington had tried to get appellant's former best friend, Johnson, to kill appellant. Twelve days after Johnson told appellant about this, Carrington was murdered. See United States v. Bobbitt, 146 U.S. App. D.C. 224, 228, 450 F.2d 685, 689 (1971) ("the prior relationship between the parties is obviously material in determining what motive the defendant might have had to shoot decedent," particularly where there has been "bad blood" between them); see also Young v. United States, 515 A.2d 1090, 1095 (D.C. 1986). Similarly, the evidence of the Glassmanor apartment offenses was admissible to demonstrate a motive to kill Carrington. Unlike the situation in Robinson, supra, 623 A.2d at 1240, where there was no connection established between the other crimes that the government sought to introduce and the victim, in the instant case there was a clear link between the Glassmanor apartment offenses and Carrington. The apartment belonged to Carrington's girlfriend and Carrington was the only partner with keys to it. Whoever killed Carrington presumably took his keys, since they were not recovered from his car at the scene of his murder and the entry into the Glassmanor apartment was unforced. A telephone call was made from appellant's car phone to the apartment within ten minutes of Carrington's murder. One of the guns used to kill Carrington was subsequently fired three times in the Glassmanor apartment. Given the reasonable inference that the break-in was one of the immediate objects of Carrington's murder, the Glassmanor apartment offenses evidence would have been admissible at a separate murder trial under the motive exception. Cf. Minick v. United States, 506 A.2d 1115 (D.C.), cert. denied, 479 U.S. 836, 93 L. Ed. 2d 76, 107 S. Ct. 133 (1986).
Appellant also contends that the trial Judge erred by denying the motion for a mistrial based on prejudicial prosecutorial remarks during opening and closing arguments to the jury with regard to the presence of the two young boys in Ms. Brown's apartment on the night of the break-in at the Glassmanor apartment. *fn14 Although the danger of prejudice presented by the prosecutor's opening statement was considerable, the trial Judge managed to salvage the situation in a manner that eliminated further prejudice.
Prosecutor's Opening Statement. At a pretrial hearing, the motions Judge ruled that the fact that the two boys were murdered the night that Carrington was murdered should not come into evidence because it was too prejudicial. *fn15 The motions Judge explained:
Well, the scope of my ruling is that the two killings in the Glass Manor Apartments are not to come into evidence at this trial. That's my ruling.
I thought, I thought that the Government should be able to bring in essentially the other facts that tie the killing of Tyrone Carrington into what happened at the Glass Manor Apartments. . . . The Government can just introduce the fact that .45 slugs traceable to the .45 that was on the scene in Tyrone Carrington's murder were also found on the scene of the Glass Manor Apartments, just not explaining where on the scene they were found.
During his opening argument, the prosecutor made several statements that appellant claims cumulatively operated to circumvent this ruling by producing the inescapable Conclusion that the boys had been murdered.
First, appellant points to the fact that the prosecutor placed the boys in the apartment at the time of the break-in. The prosecutor first mentioned the boys when he described Crystal Brown's activities the day of Carrington's murder and the break-in. *fn16 The prosecutor then described how the three of them left Crystal Brown's grandmother's house and went to a Kenilworth Avenue pay phone where Ms. Brown called Carrington's beeper. *fn17 He then explained how Ms. Brown and the boys ended up at the Glassmanor Drive apartment, and he described how Ms. Brown left the apartment that evening with the boys still inside, warning them not to open the door to anyone. *fn18 Second, appellant contends that the prosecutor's statement pertaining to the stipulation that the same .45 caliber gun that was fired at the scene of Carrington's murder was also fired three times inside Crystal Brown's apartment that same evening increased the likelihood that the jury would conclude that the boys were also murdered that night. *fn19 Third, appellant contends that the prosecutor's explanation of the circumstances, that Ms. Brown's screaming brought the police to the Glassmanor Drive apartment, contributed to create the inescapable Conclusion by the jury that the boys had been murdered. *fn20
According to appellant, he was "intolerably" prejudiced by these three statements -- the placing of the two boys in the apartment, the mention of the three bullets being recovered from the apartment, and the statement that it had been Crystal Brown's screams after entering the apartment that prompted a neighbor to call the police -- in view of the obvious absence of the boys as witnesses at trial. He maintains that by making these statements, the prosecutor effectively called to the jurors' attention the very fact that the motions Judge had ruled was to be excluded, namely that the two boys had been murdered that night in Ms. Brown's apartment.
The government responds that the prosecutor adhered to the motions Judge's ruling. The motion Judge's explanation of his ruling made clear that the government was not prohibited from bringing "the other facts that tie the killing of Tyrone Carrington into what happened at the Apartments," by showing that Carrington's killer or killers must have been familiar with the workings of his drug business. The government, however, proposes too narrow a view of the motions Judge's ruling. The fact that the prosecutor did not expressly refer to the murder of the two boys, standing alone, was not enough to ensure compliance with the motions Judge's ruling. While the prosecutor's care to avoid mentioning that the two boys had been murdered may have arguably been compliance with the letter of the ruling, it was not in keeping with its clear spirit. As the trial Judge acknowledged, "it's going to be a little hard for them [the jury] not to draw the Conclusion that those boys are not here because they are in fact dead." The motions Judge's ruling was based on the extremely prejudicial nature of evidence that the same person or persons who had killed Carrington had also shot his son and his girlfriend's teenage brother, and the absence of any real prejudice to the government's case by omission of the boys' murders. While other facts about appellant's connection to Ms. Brown's Glassmanor apartment were not barred, it would seem extraordinary, as the trial Judge suggested, to suppose that the motions Judge intended for the government to be able to put in evidence everything -- the boys' presence, Ms. Brown's instructions to them, the three shots, Ms. Brown's -- screaming except the fact that the two boys were found murdered. *fn21
While the prosecutor's opening remarks did not flagrantly exceed the technical bounds of the Judge's ruling, there was no reason to mention the two boys at all. *fn22 Indeed, the prosecutor suggested a concern, after the fact, that the uncertainty about the two boys could work against the government's case. *fn23 Of course, this was a problem of the government's own making and, thus, is of little consequence in our evaluation of prejudice to appellant. Cf. Parker v. United States, supra note 13, 586 A.2d at 725-26. We conclude, however, that appellant was not substantially prejudiced by the prosecutor's remarks during opening statement. *fn24 See McGrier, supra, 597 A.2d at 41.
First, the trial Judge struck a careful balance between excluding the explosively prejudicial evidence relating to the Glassmanor apartment offenses and admitting only those parts that supported the government's theory that Carrington's murder and the break-in were effected by the same persons, thereby ensuring adherence to the spirit of the motions Judge's ruling. Making a "solomonic decision," the trial Judge ruled that the prosecutor would be permitted to present evidence that Ms. Brown left the boys in her apartment with instructions on the night Carrington was murdered, but that the prosecutor could not make any reference to the fact that Ms. Brown had screamed when she had arrived home that night. In fact, this is all the evidence the jury heard.
Second, the Judge instructed the prosecutor to make certain that the government's witnesses did not make any reference to the murder of the two boys, including Ms. Brown's screams. Accordingly, when Ms. Brown's neighbor testified, he referred only to a "disturbance," which prompted him to call the police, rather than to hearing Ms. Brown's screams. When Ms. Brown was asked why she was testifying, the trial Judge summoned counsel to the bench to ensure that she did not refer to the murder of her brother and Carrington's son.
In assessing prejudice, moreover, it is of some significance that defense counsel, who was alert to the possibility of prejudice, did not initially ask for a mistrial upon hearing the prosecutor's opening statement to the jury. Defense counsel waited until the opening statement was completed to make his objection so as not to draw further attention to the issue, and he also asked that the prosecutor's opening statement not be highlighted with the instruction that the prosecutor was requesting. In exchange for assurance that the prosecutor would not "deliver" on the promises made in his opening statement regarding Ms. Brown's screams, defense counsel agreed not to make a missing witness argument or argument that the prosecutor had failed to prove some points mentioned in his opening argument. Hence, the evidence and argument after the prosecutor's opening argument did not indicate that the two boys had died, and that was the goal which the trial Judge viewed as crucial. It was only after the trial Judge had ruled that the prosecutor would be permitted to introduce evidence that the two boys were in the apartment and that Ms. Brown had instructed them not to let anyone inside, that defense counsel expressed concern about prejudice to the defense. At that point, he moved for a mistrial, which the Judge denied, stating that "I think we can keep it clear, clear as possible." The Judge also gave the standard instructions that the arguments of counsel were not evidence and that the jury was to decide the case on the basis of the evidence presented at trial.
Under all the circumstances, we find no abuse of discretion by the trial Judge in denying the motion for a mistrial. Lee v. United States, 562 A.2d 1202, 1204 (D.C. 1989). The trial court's ruling was neither unreasonable nor irrational, but rather a carefully crafted solution arising out of an unfore seen situation that fairly accommodated both sides. While the prosecutor should not have blurted out in his opening statement assertions of forthcoming proof to which defense counsel had objected during prior Discussions with the motions Judge, defense counsel should have alerted the trial Judge (who was not the motions Judge and therefore was unaware of defense counsel's previous concern) before the opening argument began of his desire to have settled the matter of what evidence the prosecutor could introduce at trial. The evidence heard by the jury suggested possible explanations other than the death of the two boys. In view of the absence of further argument to suggest such a sinister result, the trial Judge could reasonably conclude that appellant would not be substantially prejudiced.
Prosecutor's Closing Argument. Appellant also contends that the prosecutor's closing included an impermissible comment on appellant's decision not to testify. *fn25 See Griffin v. California, 380 U.S. 609, 614, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); Peoples v. United States, 329 A.2d 446, 450 (D.C. 1974). Reading the prosecutor's comments in context, see McGrier, supra, 597 A.2d at 41; Coleman v. United States, 515 A.2d 439, 450 (D.C. 1986), cert. denied, 481 U.S. 1006, 95 L. Ed. 2d 205, 107 S. Ct. 1631 (1987), we find appellant's argument unpersuasive.
The trial Judge found that the prosecutor had made this statement in response to defense counsel's suggestion in his closing argument to the jury that it was possible that appellant, unaware of Carrington's death, was alone in his car looking for Carrington when he made the telephone call to Crystal Brown's apartment. As the government states in its brief on appeal, "the intent [of the prosecutor's statement] was to properly rebut a theory advanced by opposing counsel by summarizing the relevant evidence and suggesting that that evidence leads inexorably to a contrary Conclusion." Also, the nature of the government's proof on this point distinguishes it from those cases cited by appellant in which there has been prosecutorial misconduct.
In each case cited by appellant, the government presented direct evidence whereby the defendant was the only person who could rebut that testimony because only he and the witness were present when the events took place. *fn26 By contrast, the instant case did not involve a situation in which a prosecutorial labeling of testimony as "uncontradicted" infringed upon appellant's Fifth Amendment privilege not to testify, by effectively forcing him to abandon his right not to testify or to allow testimony that only he can rebut to be characterized as "uncontradicted." See Flannery, supra, 451 F.2d at 882. The only eyewitness evidence was that appellant was on Langston Lane the night that Carrington was murdered. The rest of the government's evidence was circumstantial. Consequently, both prosecution and defense were asking the jury to infer differing Conclusions from the circumstantial evidence -- the prosecution asking the jury to believe that appellant made the telephone call after shooting Carrington in preparation for the break-in of Ms. Brown's apartment, the defense asking the jury to infer that appellant was alone in his car and innocently telephoned Ms. Brown's apartment in search of Carrington. These circumstances do not pose the kind of dilemma presented in the cases on which appellant relies. Rather, the prosecution was pitting inference against inference, not "uncontradicted" eyewitness testimony against defense inference. Sifting through opposing inferences is the quintessential jury function. Hence, the prosecutor's statement that his scenario was the only "logical explanation" was not improper.
Accordingly, we affirm the judgments of conviction. *fn27