Appeals from the Superior Court of the District of Columbia (F-4634-98 & F-9907-97) (Hon. Henry F. Greene, Trial Judge)
Before Wagner, Chief Judge, and Farrell and Washington, associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
On June 30, 1998, appellants, Michael McCullough and MacArthur Williams, were found guilty by a jury of obstruction of justice, in violation of D.C. Code § 22-722 (a)(4) (1996), currently D.C. Code § 22-722 (a)(4) (2001); bstruction of justice, in violation of D.C. Code § 22-722 (a)(2) (1996), currently D.C. Code § 22-722 (a)(2) (2001); conspiracy to commit murder and obstruction of justice, in violation of D.C. Code §§ 22-105a, -722, -2401, -3202, -3204 (1996), currently D.C. Code § 22-1805a, -722, -2101, -4502, -4504 (2001); first-degree murder while armed (premeditated), in violation of D.C. Code §§ 22-2401, -3202 (1996), currently D.C. Code § 22-2101, -4502 (2001); possession of a firearm during the commission of a crime of violence or dangerous offense (PFCOV), in violation of D.C. Code § 22-3204 (b) (1996), currently D.C. Code § 22-4504 (b) (2001); and carrying a pistol without a license (CPWL), in violation of D.C. Code § 22-3204 (a) (1996), currently D.C. Code § 22-4504 (a) (2001). McCullough and Williams argue that: 1) the trial court abused its discretion by denying McCullough's motion for severance; 2) the trial court improperly precluded the appellants from cross-examining Mack Williams for bias and introducing third-party perpetrator testimony; 3) the evidence was insufficient to sustain their convictions; 4) the trial court improperly denied McCullough's request for a multiple conspiracy jury instruction; and 5) Williams' convictions for first-degree murder, obstruction of justice and conspiracy should have been merged. We affirm.*fn1
We need only to briefly review the circumstances surrounding these charges. On May 17, 1997, Jose Brown was beaten and strangled in a parking lot in Northwest, Washington, D.C. During the investigation of Brown's murder, investigators received information from Sharon Jackson that although she did not witness the beating, she had seen two individuals, Elliott Wallace and Andrew Tillman, in the area where the victim was found. Wallace and Tillman were subsequently arrested. McCullough and Williams learned that Jackson had snitched on Wallace and Tillman. After confirming that Jackson had indeed gone to the police, appellants and others decided that the best thing to do was to kill Jackson. Williams had even told his father, Mack Williams, that Jackson was to be killed before the end of the week.
On December 1, 1997, Jackson was killed in front of an apartment building located on 1527 Park Road, N.W., Washington, D.C. She was the victim of four gunshot wounds, two to the back of her head and two to her back. After the shooting, Mack Williams, appellant Williams' father, heard Williams' voice in the area of the shooting urging someone to hurry as he fled and then saw his son leave through the backdoor of the apartment building, get into a car with another person, and leave the area. Another witness also testified that he saw Williams leaving the scene. Testimony at trial showed that McCullough was also involved in the shooting. Jackson was killed prior to investigators identifying additional accomplices and before she had testified in front of the grand jury. McCullough and Williams were later arrested.
McCullough argues that the trial court committed reversible error by denying his motion for severance from his co-defendant, Williams.
Generally, when individuals have been charged together, there is a strong presumption that they should be tried together. A severance may be granted, however, if trying the individuals together "prejudices any party." A denial of severance will only be overturned for an abuse of discretion. In assessing a request for severance, the trial court should weigh the potential prejudice "against the considerations of judicial economy and expeditious proceedings." To show an abuse of discretion, the appellant must show not only prejudice, but manifest prejudice.
Mercer v. United States, 724 A.2d 1176, 1193 (D.C. 1999) (internal citations omitted).
On appeal, McCullough asserts that he was convicted due to "insidious guilt by association." Specifically, McCullough alleges that introduction of evidence that Williams had previously been seen with a gun, which McCullough argues is probative only to the charges against Williams, was prejudicial to him. Prior to trial, McCullough filed a pretrial motion to sever both counts and defendants, pursuant to Super. Ct. Crim. R. 8 (b) and 14, claiming that it was "quite likely" that McCullough's co-defendant would present inconsistent defenses. The motion was denied. However, at no time did McCullough claim that his case should be severed on the grounds that Williams had been seen with a gun at some time prior to the shooting. Instead, when the trial court made it clear that this evidence was admitted only to show access to a weapon that could have been the murder weapon, McCullough did not renew his severance motion. Because McCullough did not move for severance on his newly raised "guilt by association" ground, nor did he object to the admissibility of the gun evidence on that ground during trial, we review for plain error. See Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992). Under the plain error standard of review, the appellant bears the burden of first establishing error, a deviation from the legal rule, and second, demonstrating that the error was so plain that the judge was derelict in countenancing it. See United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Frady, 456 U.S. 152, 163 n.14 (1982).
Here, because the trial court properly allowed the gun to be admitted into evidence for a limited (and permissible) purpose, to show that the appellants had the means to commit the crime, there is no evidence that McCullough met his burden of demonstrating any error at all. See Sanders v. United States, 809 A.2d 584, 590 (D.C. 2002); Coleman v. United States, 379 A.2d 710, 712 (D.C. 1977). Furthermore, even if the evidence were only probative of the charges against Williams, there is no evidence that McCullough's substantial rights were affected. The trial court gave limiting instructions to the jury that they should think of the proceedings as two separate trials and that they were to consider the evidence against McCullough and Williams separately. It is well settled in this jurisdiction that jurors are presumed to follow instructions, McClellan v. United States, 706 A.2d 542, 553 (D.C. 1997), and since McCullough ...