Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Trial Judge)
Before Steadman and Farrell, Associate Judges, and Newman, Senior Judge. Opinion for the court by Associate Judge Farrell. Separate statement by Associate Judge Farrell. Dissenting opinion by Senior Judge Newman.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellant was found guilty by a jury of multiple armed offenses, including three counts of armed robbery. The crimes involved the robbery and assault of three individuals by appellant and two other persons. We do not recite the facts of the crimes further as they are immaterial to the lone issue necessitating this published opinion. That issue arises from the failure of the prosecutor to notify appellant until the Tuesday evening before the start of trial on Thursday morning of the government's intention to introduce as Drew *fn1 evidence appellant's asserted failure to appear for his first scheduled trial. Appellant contends that the trial Judge abused his discretion in not excluding the evidence because of the untimeliness of this disclosure, or at least in not granting him a continuance to attempt to secure witnesses to rebut the proffered evidence of his "consciousness of guilt." We find no abuse of discretion on the facts of this case, and affirm. *fn2
The prosecutor filed with the trial court on January 31, 1992, a written Notice of Government's Intent to Use Drew Evidence, serving appellant with a copy by mail. The notice stated that the government would seek to introduce as proof of consciousness of guilt of the charged crimes appellant's failure to appear for trial as scheduled on October 31, 1991. The service copy of the notice bore a postmark of February 3, 1992. Appellant contended below, and the government does not dispute, that he received the notice in the mail on Tuesday evening, February 4. Jury selection began in appellant's case on Thursday, February 6. In a preliminary Discussion of pretrial motions that morning, the prosecutor adverted to the Drew motion; appellant's counsel did not mention it. The rest of the day was devoted to jury selection. The next morning, Friday, the court took up the government's motion, and the prosecutor argued the admissibility of appellant's failure to appear under a succession of decisions of this court beginning with Grant v. United States, 402 A.2d 405 (D.C. 1979). Appellant's counsel did not seriously dispute the relevance of the evidence, but claimed that it would be unfair to let the prosecution introduce it because the government had not formally charged the failure to appear as a BRA (Bail Reform Act) violation *fn3 and had given him no earlier notice of its intent to prove the conduct:
Your Honor, . . . we received [the notice] late evening. I don't think that's a reasonable notice, given the fact that this case was set . . . for trial on Thursday. What they're essentially doing is trying the BRA [Bail Reform Act or failure to appear violation] within this case. The problem we have is that we can't prepare for it.
Mr. Ford was here that day [i.e., October 31, 1991]. He indicated to me at the time when he was picked up and brought in on the bench warrant, he indicates that he was here. He told the Judge that he was here on that date. He has witnesses who will be prepared to testify that he came to Superior Court and came into courtroom. Now I haven't had an opportunity to do that because I'm preparing for this specific trial.
If I had been given notice, reasonable notice, I would have been able to prepare to defend him against this charge. The government has had ample opportunity to indict that BRA and we would have been on notice that it was indicted and that we had it prepared for trial. What they're attempting to do is to try this BRA and use it in their own sense without giving us any opportunity to prepare to rebut it.
The parties then discussed with the Judge whether, in the absence of a formal rule of procedure or evidence governing the matter, the government was required to give advance notice to the defense of its intention to use Drew evidence. *fn4 Appellant did not amend his request that the evidence be excluded. The prosecutor, however, argued that the most appellant could legitimately ask for in the circumstances was a continuance to attempt to counter the evidence:
If counsel is requesting a continuance in order to prepare for that[,] that seems to be the only remedy that he could possibly ask for because he's been given notice before trial and that would be certainly his remedy. And the question is whether he's asking for a continuance in order to prepare for that or not. [Emphasis added.]
The Judge disagreed that the court's options were so limited, but perceived no reason to exclude the evidence in this case:
Were the Court to be of a view that this is improper, the Court, I believe, would be within its right simply to not allow the presentation of the evidence. All right. The government -- the Court is -- the court has been informed of the government's intent to use this evidence and it will be allowed to do so. Anything else?
[The Prosecutor]: Not at this time, ...