Before Schwelb, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. John H. Bayly, Jr., Trial Judge)
Submitted September 14, 2000
The main issue in this appeal is whether the trial judge abused his discretion when he dismissed a juror for threatening a fellow juror and disrupting deliberations, and when he thereafter denied a mistrial and permitted deliberations to continue. The eleven remaining members of the jury found appellant Eniola A. Shotikare guilty on all counts. We hold that the trial judge exercised his discretion properly in excusing the disruptive juror and in allowing the remaining jurors to reach a verdict.
We also hold that the trial judge did not abuse his discretion in denying Shotikare's motion for severance of counts. Although the charges against Shotikare arose from separate incidents, the judge correctly concluded that the evidence of each joined crime would be admissible in separate trials of the others on the issue of identity.
Perceiving no error, we affirm Shotikare's convictions.
Shotikare was indicted along with his accomplice Babajide Ifelowo on two counts of robbery, one count of armed robbery of a senior citizen, and one count of assault with intent to commit robbery while armed. The two co-defendants were tried separately, albeit by the same trial judge, and each was convicted on all counts. This court recently affirmed Ifelowo's convictions in a published opinion. See Ifelowo v. United States, No. 98-CF-211 (D.C. August 2, 2001).
The crimes in question are described in detail in Ifelowo, slip op. at 2-8, and it is unnecessary to repeat their description here. In brief, the government presented evidence of three similar criminal incidents that took place at the same time of night within a span of nine days in the same general area of the city. In these incidents, two robbers - Shotikare and Ifelowo - drove up, confronted vulnerable pedestrians, threatened them with violence, robbed them and drove off. The victims or other eyewitnesses positively identified Shotikare as one of the robbers in each incident, and Ifelowo as the other robber in the second and third incidents. The robbers drove the same distinctive car on each occasion - a car that, the government proved, belonged to Shotikare's girlfriend. The crimes shared other similarities as well. For instance, witnesses to the first and third incidents observed that one or both of the robbers had a foreign accent, and that the license plate of their car was covered so that it could not be read. There were no major disparities among the three incidents to contradict the impression that they were related and were committed by the same persons.
Finding that the offenses were sufficiently similar that evidence of each would be admissible in a separate trial of the others to prove the identity of the perpetrators, the trial judge denied motions filed by Shotikare and Ifelowo pursuant to Super. Ct. Crim. R. 14 for severance of counts. In the case of Ifelowo, we have upheld that ruling, stating that "despite the differences among the three robberies, the combination of consistent features with respect to them satisfies us that the trial court did not abuse its discretion by concluding that there is a reasonable probability that the same persons committed all three robberies, and by denying Ifelowo's motion to sever the robbery counts." Id., slip op. at 18; see also slip op. at 21 (Glickman, J., concurring) ("Dissimilarities were minor; overall, the three incidents were strikingly similar and evidently related to each other.").
Our decision in Ifelowo controls the resolution of the same issue here. Before he ruled on the severance motion, the trial judge took care to ascertain that Shotikare's identification was in genuine dispute with respect to each offense. Hence "identity was a material issue on which the evidence [of each offense] legitimately could be received." Coleman v. United States, 619 A.2d 40, 44 (D.C. 1993). Shotikare argues that the three criminal incidents were too dissimilar to be mutually admissible in separate trials to prove his identity, *fn1 but as in Ifelowo, we do not agree with that contention. While the robbery incidents were not "identical in every detail," there were "enough points of similarity in the combination of circumstances to make it reasonably probable that the same person committed all of the offenses." Id. Indeed, while the existence of the following feature is not essential to sustaining joinder, the three incidents shared at least one "unique characteristic," Coleman, supra, that brands them all as the handiwork of the same person - namely, in each case the robbers escaped in the same distinctive vehicle. *fn2
Shotikare did also argue that the joinder of charges in a single trial was unfairly prejudicial because he would be unable to testify as to one of the incidents and still remain silent as to the others. Upon a sufficient showing of such prejudice, severance of counts may be required even where, as here, the criterion of mutual admissibility of the evidence in separate trials is met. See Cross v. United States, 118 U.S. App. D.C. 324, 326, 335 F.2d 987, 989 (1964). But "it is essential that the defendant present enough information - regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other - to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of `economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying." Roy v. United States, 652 A.2d 1098, 1108 (D.C. 1995) (quoting Baker v. United States, 131 U.S. App. D.C. 7, 25-26, 401 F.2d 958, 976-77 (1968)) (distinguishing Cross when appellant failed to make a sufficient proffer). Shotikare failed to make the requisite "convincing showing that he ha[d] both important testimony to give concerning one count and strong need to refrain from testifying in the other." Id. Shotikare failed to proffer, and it is not otherwise apparent from the record, what his testimony would have been, or why he needed to refrain from testifying on other counts.
As in Ifelowo, therefore, we conclude that the trial judge in this case did not err in denying severance of counts. The charges against ...