Before Glickman and Washington, Associate Judges, and Nebeker,
The opinion of the court was delivered by: Nebeker, Senior Judge
Appeal from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Trial Judge)
This is an appeal from convictions of all twenty-seven counts of an indictment arising from a drug-related triple murder and a subsequent murder of a potential prosecution witness. *fn1 Appellant Darryl D. Crutchfield raises twenty-six issues. *fn2 Some amount to attacks on all convictions - challenges to the trial court's admission of out-of-court statements made by appellant's girlfriend before he slew her, limitations on cross-examination of a government witness, and three aspects of the prosecution's closing argument. Others challenge specific convictions on various grounds - most notably the obstruction of justice and burglary charges. After a factual overview, we first address those arguments aimed at all convictions. Then, we focus on those arguments targeting specific convictions. Finding no error warranting reversal of any conviction, we affirm.
The killings of Edwin Knight, his brother Emory Knight, and Russell Jackson arose out of a debt of money and crack cocaine that appellant claimed was owed to him by victim Edwin Knight. On the day of the triple murder, December 18, 1996, appellant, Ms. Jamyra Simpson, and Ms. Takiesha *fn4 Wiseman went to the Knights' home in a gold or "champagne color" Nissan Maxima belonging to appellant's mother. Appellant told the two women of the debt and said "no one would get hurt if [Simpson] just did what he asked [her] to do." Appellant told Simpson to go inside and ask Edwin to come outside. Simpson was frightened, but went to the house as appellant and Wiseman drove off and parked the car down the block. Appellant left Wiseman in the car and proceeded back to the Knights' house.
Rather than bringing him outside to meet with appellant, Simpson left with Edwin Knight to go to a restaurant, but they returned to the house a short time later because he had forgotten his wallet. While the two were in front of the house, appellant appeared with a Tech 9 machine gun in his hand. He ordered the two into the house. Once inside, appellant asked if anyone else was there. Edwin Knight revealed that his brother, Emory Knight, was also present. Appellant and Edwin Knight went upstairs leaving Simpson on the first floor. When they returned, Emory Knight was with them. No words were spoken by them. All four then went into the first floor bedroom. The two brothers sat on the bed and Simpson stood in the doorway. Appellant asked "where was his shit" and Edwin Knight replied that he did not "have it all right now." Appellant directed Edwin Knight to open a safe near the bed. When he did, it appeared to contain crack cocaine, marijuana, and money. When the items were handed to appellant, he exclaimed, "That's not all my shit, I know you got more."
About that time Russell Jackson knocked on the front door. Appellant ordered him into the bedroom at gun point, and then ordered the three men onto the bed and directed them to stack themselves three high. As appellant stood in front of the bed, Simpson backed away and began praying. Appellant "began to shoot everybody" on the bed. Simpson, after witnessing these events, ran from the house, caught a cab and went home. As she fled down the street, she saw the Nissan parked at a nearby corner.
The shooting was heard by Malik Hopkins who was visiting a neighbor who lived on Knight's block. Hopkins then heard someone running very fast down the street and a car door slam. He went to a window and saw a gold Nissan Maxima back up quickly and then "zoom" away.
Meanwhile Edwin Knight, though shot, called the police. Upon their arrival, officers noted that he appeared "lost" as he sat on the bed. Asked who had shot him, Edwin Knight whispered, "Myra," gave police a telephone number, and pointed to an address book containing Jamyra Simpson's whispered telephone number. While being questioned later in his hospital bed, Edwin Knight told police officers that a man was with Simpson during the shooting.
Many bullets, fragments and shell casings were recovered from the bed area. Emory Knight and Jackson died of their wounds soon after being shot. Edwin Knight died some weeks later in the hospital. Bullets and fragments were recovered from the bodies of Jackson and Emory. The casings and bullets were matched to a machine gun that was subsequently recovered from among appellant's possessions. Bullets matching the murder weapon were also found in Edwin's hospital bed as he lay unconscious, apparently having worked their way out of his wounds.
The day after the shooting Wiseman called Simpson and told her that after appellant left the Knights' house and returned to the car he said "that was his high, that's how he gets off, on blowing his clip on niggers [sic]." The next day appellant and Wiseman appeared uninvited at Simpson's home. There appellant told Simpson, that "he didn't mean for it to happen like that and . . . as long as [Simpson did not] talk to [the] police everything [was] going to be okay." In referring to a news account that Edwin had survived the shooting, appellant said, "he was going to get whoever it was [who] didn't die."
Three days after the shooting, appellant and Wiseman went unannounced to Simpson's mother's house. Appellant's expressed purpose was to take Simpson to "where he hung [out] at and where his mother live[d] so that [Simpson] had no reason to be scared of him." The three drove off. At one point, appellant stopped, got out of the car, and spoke with someone who went into a house and returned with the gun that appellant had used on December 18.
Ms. Simpson was arrested on December 28, by Maryland police and subsequently charged in the District of Columbia with the three murders. Upon her arrest, she first denied knowing of the three murders, but then gave an incomplete written account of them to both Maryland police and FBI agents. Simpson entered into a plea agreement and pleaded guilty to conspiracy to commit burglary, and the murder charges were dismissed. As a government witness, she acknowledged on cross-examination the foregoing plea. On redirect examination, she explained that she had told Maryland police of appellant's involvement in the murders prior to making the plea agreement.
B. The Murder-Based Obstruction Count
After appellant shot the three men, he ran to the gold Nissan Maxima in which Wiseman had been waiting and made the inculpatory statement to her about "blowing his clip." Sharon Foxworth, a friend of Wiseman, noticed that soon after the murder she was "quiet, drawn to herself . . . with a worried look on her face." Foxworth also testified that Wiseman said "me and my friend killed somebody" but then tried to appear to be joking. After Simpson's transfer to the custody of the District of Columbia, Simpson called Wiseman and told her that she should speak to a Detective Bell. Wiseman seemed scared and replied, "what [was she] talking about."
According to Foxworth, Wiseman seemed particularly tense and scared from December 28, 1996 to January 8, 1997. During one conversation Wiseman told Foxworth she was "on vacation;" when asked if she was with appellant, she replied, "me and my Boo, we're okay." Upon being told that Detective Bell was looking for her, Wiseman replied, "whatever anybody tell[s you] about [me], [I] didn't do anything." In a January 8, 1997 conversation, Wiseman told Foxworth that she was coming home to get her daughter for a "court date," but she never did so. Two days later, Wiseman called a relative who worked at the Superior Court to inquire as to "what was going on with the case of Jamyra."
During December, appellant resided primarily at his mother's home near the Maryland border and the Eastover Shopping Center. When appellant's mother told him that the police were looking for him and had searched the house, appellant left the home.
On January 11, 1997, the badly burned body of Takiesha Wiseman was found in a large field near the Eastover, Maryland shopping center. She had been shot twice in the back of the head at very short range. Two .380 bullets and cartridge casings were recovered from and around the body. Despite the burning, the body was identified by the medical examiner by fingerprints and a photograph.
Appellant slept at the home of a friend, Diana Hewitt, shortly after leaving his mother's home. When Hewitt asked why he was staying with her, appellant responded, "whatever [you] don't know won't hurt [you]." On February 4, appellant was arrested at Hewitt's home. Since the triple murder, he had stopped shaving his head, and had grown facial hair. The machine gun used in the triple murder and the .380 caliber gun used to kill Wiseman were recovered among other belongings of appellant during a search of Hewitt's home at the time of appellant's arrest.
Appellant argues that the trial court abused its discretion when "it restricted the defense cross-examination of Jamyra Simpson." Specifically, appellant complains that the trial court improperly prevented cross-examination on the following subjects: (1) alleged prior armed robberies of drug dealers by Simpson; (2) Simpson's prior dealings with a police officer and the bias that might have resulted from the officer's presence at the scene of the triple murder; (3) alleged cellular telephone conversations between Simpson and appellant; and (4) Simpson's alleged registration of a car in the days after the triple murder.
As appellant acknowledges, the trial court has considerable discretion to impose reasonable limits on cross-examination. See Scull v. United States, 564 A.2d 1161, 1164 (D.C. 1989); cf. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (right to cross-examine is not without limits). "[T]he trial court may in its discretion limit cross-examination `into matters having little relevance or probative value to the issues raised at trial.'" Payne v. United States, 516 A.2d 484, 498 (D.C. 1986) (quoting Springer v. United States, 388 A.2d 846, 855 (D.C. 1978)). In reviewing the trial court's determinations for abuse of discretion, we consider whether meaningful cross-examination was precluded by the trial court's rulings. See Flores v. United States, 698 A.2d 474, 479 (D.C. 1997).
Because our review of the record reveals that none of the trial court's restrictions precluded meaningful cross-examination, we conclude that the trial court did not err. We deal with each of appellant's contentions below.
1. Simpson's Prior Uncharged Robberies of Drug Dealers
In Newman v. United States, relied on by appellant, we held that the defense could question a witness about a crime committed by that witness which bore similarity to the charge against the defendant both to show the witness's motive to lie and to imply that the witness might have actually committed the charged offense. Newman v. United States, 705 A.2d 246, 254-57 (D.C. 1997) (relying on Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc), and its explication of the relevance of "reverse-Drew" evidence, Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964)). However, Newman turned on a number of similarities between the crimes, including a similar modus operandi, similar treatment of victims, a very short time-two weeks-between the two criminal events, and proffered testimony that affirmatively indicated that the defendant was not at the scene of the charged crime. See 705 A.2d at 256-57. The record before us reflects that the prior robberies in which Simpson was allegedly implicated had occurred more than three years before the triple murder. Moreover, beyond the fact that the victims were believed to be drug dealers, defense counsel proffered no similarities between those earlier robberies and the triple homicide. Because appellant's proffer was comprised of nothing beyond prior bad acts highly attenuated from his charged offenses, the trial court did not err in excluding the proposed cross-examination.
2. Simpson's Prior Dealings with Police
Appellant also sought to cross-examine Simpson for bias stemming from her arrest earlier in 1996 on charges related to gun possession. Those charges were eventually dropped after a police officer amended the charges on a police report, thus creating confusion as to the proper charges. Appellant alleges that, because the same officer was on the scene of the triple murder when Edwin Knight gave the police Simpson's name, Simpson may have falsified testimony in return for continued favorable treatment in the triple murder investigation. The trial court ruled that, because appellant had failed to proffer any evidence of any ongoing relationship between Simpson and the officer or of how she might have benefitted from her earlier contact with him, no bias had been shown and the proposed cross-examination should not be permitted.
"[A] trial court does not abuse its discretion by precluding cross-examination where the connection between the facts cited by defense counsel and the proposed line of questioning [is] too speculative to support the questions." McGriff v. United States, 705 A.2d 282, 285 (D.C. 1997) (internal quotations omitted). Our review of defense counsel's proffer confirms that any suggestion of Simpson's bias on this point was unsupported speculation. Therefore, we conclude that the trial court acted without error in preventing this line of questioning.
3. Simpson's Cellular Telephone Conversations with Appellant
Appellant argues that the trial court abused its discretion by foreclosing defense counsel's cross-examination of Simpson as to the conversations that she may have had with appellant on his cellular telephone. Upon the government's objection, the trial court ruled that the questions were outside the scope of direct examination.
Because the direct examination of Simpson had not gone into her communication with appellant via his cellular telephone, the trial court did not err in limiting the scope of cross-examination to those areas actually covered by the direct examination. See Guzman v. United States, 769 A.2d 785, 790 (D.C. 2001); Chambers v. United States, 564 A.2d 26, 30 (D.C. 1989), overruled in part on other grounds by Berroa v. United States, 763 A.2d 93, 96 & n.6 (D.C. 2000). Further, we note that defense counsel's stated goal of this line of questioning was to establish "how frequently [Simpson] talked to [appellant]," and that the trial court explicitly permitted the defense to cross-examine Simpson about the frequency of her communications with appellant.
4. Prohibition of Impeachment of Simpson via Motor Vehicle Registration
On cross-examination, Simpson denied ever owning or registering a blue Chevrolet automobile. Defense counsel attempted to impeach Simpson by introducing into evidence a Department of Motor Vehicle (DMV) registration document in her name which had been registered on the day after the triple murder. After hearing testimony from a DMV investigator, the trial court sustained the prosecution's objection on the ground that DMV procedures would have permitted another person to register the car under Simpson's name.
Determinations of relevance are committed to the sound discretion of the trial court. See Dockery v. United States, 746 A.2d 303, 307 (D.C. 2000). Even taking as valid appellant's contention that it would be relevant if Simpson registered a car the day after the triple murder and lied about it on the stand, the fact that the registration document could have been executed by anyone provides a valid basis for excluding such evidence. Therefore, the trial court did not abuse its discretion in preventing admission of the automobile registration form for impeachment purposes.
B. Prosecution's Closing Argument
Appellant attacks three aspects of the prosecution's closing argument at trial: (a) appeals to jurors' sympathy and to send a message; (b) references to jurors' civic duty; and (c) interjections of prosecutor's personal opinion, all of which are discussed in more detail below. With the exception of one instance, see infra Part B.5, defense counsel failed to object to the purported improprieties. Therefore, we may only consider whether the prosecution's alleged missteps amounted to plain error affecting substantial rights. See Brown v. United States, 766 A.2d 530, 541-42 (D.C. 2001). "In determining whether there was plain error, we consider `whether the judge compromised the fundamental fairness of the trial, and permitted a clear miscarriage of justice, by not intervening, sua sponte, when the prosecutor made [the challenged] remarks. . . .'" Reyes v. United States, 758 A.2d 35, 39-40 (D.C. 2000) (citing McGriff, supra, 705 A.2d at 288); see also McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991) ("When there has been no objection at trial, reversal of a conviction based on improper prosecutorial argument is appropriate only in a `particularly egregious' case."(quoting United States v. Young, 470 U.S. 1, 15 (1985))). Thus, appellant's burden here is a heavy one which will only be borne under extreme circumstances.
Based on the more detailed analysis that follows, see infra Part B.4, we conclude that, given the considerable strength of the evidence against appellant, the judge's instructions to the jury, and the relative mildness and ambiguity of the prosecutor's challenged statements, even in the aggregate those statements did not bring about a "miscarriage of justice." McGrier, supra, 597 A.2d at 41.
1. Appeals to Jurors' Sympathy and to Send a Message
We have held that closing argument may "not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response . . . rather than the logical analysis of the evidence in light of the applicable law." Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985), quoted in Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989). This is not such a case. We therefore hold that the following excerpts, ...