Appeals from the Superior Court of the District of Columbia (F-10817-95 & F-10818-95). (Hon. Wendell P. Gardner, Jr., Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before TERRY and RUIZ, Associate Judges, and STEADMAN, Senior Judge.*fn1
Opinion concurring in part and dissenting in part by Senior Judge STEADMAN at p. 29.
A jury convicted Gregory V. Williams and Herbert Smalls, Jr. of several weapons offenses after officers with the Metropolitan Police Department discovered in the course of a traffic stop a semiautomatic handgun lodged under the vehicle's front seat where Williams and Smalls both were sitting. In these consolidated appeals, each appellant raises a single issue. Williams contends that the government failed to introduce evidence of constructive possession sufficient to prove his guilt beyond a reasonable doubt. Smalls claims that the trial court abused its discretion by denying his motion to sever their trials, which was predicated on co-defendant Williams's offer to provide exculpatory testimony on Smalls's behalf, provided that, in so doing, he would be given immunity or protected against waiving his Fifth Amendment privilege against compulsory self-incrimination. We conclude that Smalls's contention is meritorious and therefore reverse his conviction and remand for a new trial; Williams's conviction is affirmed.
While waiting at a traffic light at the intersection of First and Atlantic Streets, S.E., on the evening of December 27, 1995, Metropolitan Police Department Officers Dennis Spalding and Andre Kimvilakani observed four persons in a 1978 Pontiac Bonneville with its high beam headlights illuminated. Two men were seated in the front and two women in the back seat of the vehicle. Officer Spalding suspected that the car might have been stolen because he knew that the headlights on many early model General Motors vehicles incidentally shine with continual high beams when the steering column is "punched" for purposes of hot-wiring the ignition. The officers decided to conduct a traffic stop.
Shortly after the signal turned green in his favor, the driver of the Pontiac made a right turn onto Atlantic Street. When the officers activated the emergency lights on their patrol car, Officer Spalding noticed the front seat passenger -- later identified as Smalls -- "lean to his left far enough that his left shoulder dipped below the top of the front seat," and then sit upright again. Officer Kimvilakani noted that Smalls's "left shoulder for some reason kept dipping, dipping down towards the center." Williams, who was both the driver and owner of the car, pulled over to the curb in response to the officers' emergency lights. When Officer Spalding approached the driver's window and asked for Williams's license and registration, Williams leaned over to the glove compartment, which permitted Officer Spalding to see with his flashlight "the butt handle of a semiautomatic handgun protruding out from under the front seat on top of the transmission hub between the driver and passenger." The barrel of the handgun sat "right on top of the hub, sticking out an inch or two from the front of the seat" and within reach of both Williams and Smalls.
Before Williams could retrieve his registration from the glove box, Officer Spalding ordered him to place his hands on the steering wheel and Smalls to place his hands on the dashboard. Both did so. As Officer Spalding began to open the door, Williams removed "his right hand [from] the steering wheel and reached down to the area where the gun was." Believing that Williams was attempting to push the handgun farther under the seat, Officer Spalding ordered Williams to return his hand to the wheel. Williams appeared to comply. As Officer Spalding attempted to open the door a second time, however, Williams again moved his right hand toward the handgun. This prompted Officer Spalding to draw his weapon and inform Williams that if he did not return his hand to the steering wheel, Spalding would shoot. Williams acquiesced, but, as soon as Officer Spalding resumed opening the door, Williams removed his right hand from the steering wheel for a third time and slowly "picked up a bag of some type of chips that [was on] the seat between him and [Smalls] and moved it towards where the weapon was." Officer Spalding believed that Williams was trying to conceal the handgun. He stepped back from the car and again pointed his weapon, instructing Williams yet again to return his hands to the steering wheel. At no time did Officer Spalding or Officer Kimvilakani see Smalls make a movement towards the handgun after the car had been stopped. Having received a signal from Officer Spalding indicating that there was a gun in the car, Officer Kimvilakani arrested all four occupants of the car.
After a grand jury charged Williams and Smalls of carrying a pistol without a license,*fn2 possession of an unregistered firearm,*fn3 and unlawful possession of ammunition,*fn4 Smalls filed a pre-trial motion under Criminal Rule 14 to sever his trial from that of co-defendant Williams, claiming that, if the trials were severed, he would call Williams as a witness and Williams would exculpate him by testifying that he had not seen Smalls with a gun on the day of the traffic stop.*fn5 See Super. Ct. Crim. R. 14. During oral argument on the motion, Smalls's counsel elaborated on the basis for severance by explaining that the exculpatory testimony that Mr. Williams would provide, Your Honor, would be that when Mr. Smalls leaned forward, he saw Mr. Smalls lean forward, and that at that time he did not see Mr. Smalls with a gun.
Further, he would also testify that he had an opportunity to observe Mr. Smalls when he entered the car, and also did not see Mr. Smalls with a gun at any time. So that, in and of itself, would be exculpatory for my client.
I would add further that Mr. Williams does not plan to testify at this trial or his trial or a joint trial between both parties. And, as a result, my client would be prejudiced if not -- if I am not allowed to call him as a witness on behalf of my client.
Williams's counsel confirmed these representations. The government opposed the motion, arguing that Smalls had not made the necessary showing for severance largely because the proffered testimony was not sufficiently exculpatory and because Smalls could not oblige the court to try Williams's case first, which was an express condition on Williams's offer to testify.
The trial judge agreed with the government that Smalls's asserted need for Williams's testimony could not dictate the court's docket. The judge stated that if I sever them [the cases], I decide which one is tried first, no matter who has got what privilege. And, there is nothing -- and there is no law or no rule that says I can't. And, that is not -- won't be an abuse of discretion or anything else. I decide which case I try first. That is not something you [Smalls] have control over. So, I don't see how his [Williams's] privilege is affected one way or the other. That is just the luck of the draw, if I happen to try one first and the other one second. I could just as easily do it vice-versa . . . .
The trial judge was of the view that if Williams secured "anything short of [an] acquittal, he [would have] problems in [that] any testimony he may . . . [have] give[n] [could be] used against him later if in fact his case [was] reversed and . . . remanded for some reason." The court seemingly did not consider the possibility -- or perhaps did not wish to countenance the costs -- of continuing Smalls's trial until after final resolution of any appeal that Williams might take, determining instead that Williams would testify for Smalls only if Williams both went to trial first and was acquitted. The court observed that such a singularly successful sequence of events "is a very speculative scenario to base severance of these cases on," and "that there is too much left to doubt for me to separate the cases in the hopes that your client [Williams] -- try him first, in the hopes that he gets an acquittal."*fn6 The judge accordingly denied severance, reasoning that it would not serve the efficient administration of justice because it "troubles too many contingencies in the mix . . . ."*fn7
At the joint trial, the government prosecuted its case on a theory of shared constructive possession,*fn8 and the jury found both appellants guilty of all charges.*fn9 Smalls filed a motion (and supplemental motion) for a new trial, arguing the same severance issue. Attached to the supplemental motion was an affidavit in which Williams, swore the following:
I hereby declare, under penalty of perjury, that on the night of December 27, 1995, that Herbert Smalls, Jr., was in my clear view, both when he entered my vehicle, and during the period when the vehicle was being stopped by police. He did not put any pistol on the transmission tunnel of my automobile, nor did I see him with a pistol at any time that evening, or for that matter, at any other time. While I almost certainly would have observed it had he handled a pistol at any time he was in my car that evening, I can state categorically that he did not produce a pistol upon entering the vehicle or during the period from the time I turned onto Atlantic Street S.E. until the pistol was noticed by Officer Spalding.
The government opposed the motion by reminding the judge that the court denied the [pre-trial] motion [for severance of defendants] for a number of reasons. Perhaps most importantly, the court determined that mere severance of the trials would not solve the issue, if Mr. Williams were not willing to waive his Fifth Amendment privilege (which he was not). Mr. Smalls did not have the right to have the cases heard in a specific order, and if his trial preceded Mr. Williams's trial, Mr. Williams still would not testify. Moreover, even if Mr. Williams's trial occurred first, because his Fifth Amendment privilege would apply until the appellate court confirmed his conviction, it was still unlikely that he would testify at Mr. Smalls's trial.
With regard to the new affidavit, the government observed, inter alia, that "Williams does not state that he would testify for . . . Smalls at a new trial."*fn10 The trial court denied Smalls's motion ...