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11/10/93 RICHARD L. CLARK v. UNITED STATES

November 10, 1993

RICHARD L. CLARK, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)

Before Ferren and King, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Senior Judge Mack.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: A jury convicted appellant Richard Clark of three counts of assault with intent to commit robbery while armed, one count of mayhem while armed, one count of possession of a firearm during a crime of violence, and one count of carrying a pistol without a license. See D.C. Code §§ 22-501, -506, -3202, -3204 (1989 & 1992 Supp.). Appellant challenges his convictions, alleging that the trial court erred in (1) failing to grant a mistrial after government witnesses implicated appellant in "other crimes"; (2) excluding a photo array proffered by the defense; and (3) failing to instruct the jury properly on the elements of mayhem. We conclude that none of these alleged errors requires reversal of appellant's convictions.

Appellant also argues that his convictions on two of the three assault counts should be vacated because his alleged conduct, though directed toward three persons, only constituted a single assaultive act. See Joiner v. United States, 585 A.2d 176, 178 (D.C. 1991). Because the government correctly does not contest this claim, *fn1 we remand this case to the trial court to vacate two of the assault convictions and to resentence appellant.

I.

Appellant's convictions are attributable to a shooting and attempted robbery that took place in front of 2641 Birney Place, S.E., on the evening of January 3, 1990. According to the government's evidence, the shooting victim, Corrine Fereno, had agreed to drive her boyfriend, Robert Cogswell, to Birney Place in order to purchase PCP from Kevin Carter. En route they picked up Jerry Tudge, a friend of Cogswell's. Cogswell sat in the front passenger seat, Tudge sat in the rear, and Fereno drove. Once they arrived at 2641 Birney, they asked a woman on the street to contact Carter. Carter emerged from 2641 Birney, briefly discussed the sale with Cogswell, and went back into his apartment. Just as Carter returned from the apartment building, appellant approached the car from the front passenger side, drew a pistol, and stuck it through the partially opened passenger side window threatening to shoot Fereno and demanding that Fereno, Cogswell, and Tudge give him their money. Cogswell grabbed appellant's arm and told Fereno to drive away. Appellant managed to free his arm, however, and shot Fereno in the chest, paralyzing her from the waist down. Cogswell then drove the car, from the passenger seat, to the nearest police station. Cogswell, Tudge, Fereno, and Carter all testified to essentially the same version of these events. *fn2

Cogswell, Fereno, and Carter identified appellant at trial as the shooter. In addition, Carter identified a photo of appellant as the shooter, and both Cogswell and Fereno picked out appellant's photograph from a photo array. Cogswell identified appellant's photo without hesitation. Fereno had some difficulty identifying her assailant when she initially saw the photos one by one; she said that two of the first three photos -- neither of which portrayed appellant -- might have been the shooter. When she viewed the photos all together, however, Fereno picked out appellant, saying "I can't be absolutely positive, I think this is the guy." The defense presented no witnesses.

II.

Appellant contends that the trial court erred in failing to declare a mistrial after government witnesses made statements that allegedly constituted "other crimes" evidence subject to the exclusionary rules of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964). Specifically, appellant cites three remarks by Kevin Carter. First, Carter said that when he gave appellant's name to police, Detective Hayes "knew exactly who I was talking about." Second, Carter said that he "guessed" another detective "went into the files" to retrieve appellant's photo. Third, on cross-examination by defense counsel, Carter stated that Detective Hayes "has arrested so many people on the block and by Little Richard [appellant's street name] had been incarcerated I just assumed that maybe he knew his last name." Finally, appellant cites Fereno's testimony that the photo array police showed her included "front and side views."

Assuming, for the sake of argument, that these four statements constituted "other crimes" evidence, we conclude that they did not result in prejudice so great as to render the trial court's refusal to grant a mistrial an abuse of discretion. See Beale v. United States, 465 A.2d 796, 799 (D.C. 1983) (decision on whether a mistrial should be declared has always been committed to the sound discretion of the trial court and as such, on appeal, a decision should be reversed only in extreme situations threatening a miscarriage of Justice), cert. denied, 465 U.S. 1030, 79 L. Ed. 2d 694, 104 S. Ct. 1293 (1984).

We have recognized that "the risk from the admissibility of a prior arrest of the defendant is that 'the jury may infer from the prior criminal conviction that the defendant is a bad and that he [or she] therefore probably committed the crime for which he [or she] is on trial."' Bennett v. United States, 597 A.2d 24, 27 (D.C. 1991) (quoting Fields v. United States, 396 A.2d 522, 527 (D.C. 1978)). The danger of such an improper inference is much less, however, where the evidence of "other crimes" is largely speculative and thus weak, as it was in this case. The three statements given by Carter and Fereno during the government's direct examination implicated appellant in prior criminal acts so indirectly, if at all, that "the jury would have had to engage in speculation in order to make any improper use of them. (Michael) Sweet v. United States, 449 A.2d 315, 319 (D.C. 1982). See also Sellman v. United States, 386 A.2d 303, 307 (D.C. 1978) ("we will not reverse where improperly admitted evidence requires the jury to speculate [in order to reach the Conclusion] that the defendant has committed other crimes"). Neither Fereno's statement that the photo array contained "front and side views," nor Carter's remark that he "guessed" a detective had retrieved appellant's photo from the files, necessarily suggested that appellant had been arrested previously. See Shuman v. United States, 243 A.2d 900, 901 (D.C. 1968) (testimony that detective had called to say that police might have defendant's photo provided "little reason to speculate that the jury must necessarily have inferred . . . that appellant had a prior criminal record," where photo was not otherwise identified or admitted in evidence); Packard v. United States, 77 A.2d 19, 21 (D.C. 1950) (statement by police officer that he did not know defendants but had pictures of them was "altogether too vague and tenuous a ground on which to predicate a reversal," since appellate court had "no way of knowing what meaning the jury drew from the officer's statement"). Thus, on numerous occasions this court has found that the mere mention of pretrial identification procedures involving police photographs did not, in itself, so prejudice defendant as to require reversal. *fn3 Similarly, Carter's statement that Detective Hayes knew appellant did not necessarily implicate appellant in any criminal activity. See Bean v. United States, 576 A.2d 187, 188 n.2 (D.C. 1990) (no merit to appellant's claim that police officer's testimony that he was able to identify defendant because of previous "official" encounter constituted "other crime" evidence).

Carter's statement that appellant had previously been incarcerated is more problematic, because it squarely -- albeit briefly -- set before the jury the information that appellant had previously been arrested, or perhaps even convicted. We note, however, that insofar as there was no evidence as to what crime may have resulted in appellant's supposed incarceration, the risk of an improper inference of guilt by the jury was less than in the situation where "the crime charged and the prior arrest involve the same offense." Bennett, 597 A.2d at 27 (citation omitted). Moreover, a reference to a defendant's prior arrest or imprisonment does not necessarily require a mistrial. See Goins v. United States, 617 A.2d 956 (D.C. 1992) (no abuse of discretion in refusal of mistrial after detective testified unexpectedly that defendant had a criminal record); (Michael Ronald) Sweet v. United States, 438 A.2d 447, 453 (D.C. 1981) (trial court did not abuse discretion in failing to declare mistrial where co-defendant testified that appellant had been in jail); Austin v. United States, 433 A.2d 1081, 1085 n.5 (D.C. 1981) (mistrial unwarranted despite testimony that appellant was going "to meet his parole officer"); Hardy v. United States, 119 U.S. App. D.C. 364, 365, 343 F.2d 233, 234 (1964) (per curiam) (no abuse of discretion in trial court's denial of mistrial, despite witness's statement that he had done "time in the penitentiary" with appellant), cert. denied, 380 U.S. 984, 14 L. Ed. 2d 276, 85 S. Ct. 1353 (1965).

In further determining the degree of prejudice to appellant from these statements, we

must assess the gravity of the misconduct, the relative strength of the government's case, the centrality of the issue affected, and any mitigating actions taken by the court, all the while giving due deference to the decision of the trial Judge, who had the advantage of being present ...


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