Appeal from the Superior Court of the District of Columbia Criminal Division (F-1711-03) (Hon. Maurice A. Ross, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and KRAMER, Associate Judges, and BELSON, Senior Judge.
Appellant Rahveed Comford was convicted after a jury trial of carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition. He claims the trial judge erred by allowing the government to introduce evidence of his purported admission that he possessed the weapon. We hold that appellant failed to preserve his objection to this evidence, and that its introduction was not plain error.
On the evening of March 21, 2003, Sharif Holt borrowed his mother's car and picked up appellant and a second passenger, Gregory Stratford, to go to a party in Southeast Washington. At approximately 1:30 the following morning, a Metropolitan Police Officer stopped the car for running a stop sign and not having its headlights on. The officer called for police backup after appellant, who was sitting alone in the back seat, opened the rear door and began to throw up. All three occupants of the vehicle appeared to be intoxicated. Upon seeing an open bottle of vodka, the police arrested them for underage possession of alcohol.
In a search of the car incident to the arrests, the police found a handgun underneath appellant's sweatshirt on the backseat. There were seven bullets in the weapon. When an officer picked up the sweatshirt, an eighth, matching bullet fell out of it to the ground. According to one of the arresting officers who testified at trial, Holt became "extremely upset, crying on the scene," after the gun was discovered, while Stratford (the front passenger seat) was "nonchalant." Appellant, who remained "non-cooperative with any information,"*fn1 was the only person charged with possessing the firearm and ammunition.
Before the government called Holt to the stand at trial, defense counsel raised a "preliminary matter" regarding his testimony. Counsel explained that Holt's grand jury testimony, which the prosecutor had just turned over to the defense, indicated appellant had made statements to Holt that, 3 arguably, should have been disclosed earlier under Criminal Rule 16.*fn2 The prosecutor denied the existence of any "custodial statements" by appellant. Rather, the prosecutor proffered, "Sharif Holt, the driver of the car, asked Mr. Comford how the gun got in his car, several times, and Mr. Comford refused to answer." Thus, the prosecutor concluded, appellant made no statement at all. Defense counsel disagreed and represented that Holt told the grand jury appellant "dodged the question," implying "something was said and we don't know what." No further information was provided to the trial judge during this colloquy regarding the circumstances under which Holt questioned appellant about the gun or how appellant responded.
Defense counsel suggested the government be sanctioned for not fulfilling its discovery obligations under Criminal Rule 16. In addition, counsel asked for an in limine ruling precluding the government from eliciting any testimony about appellant's failure to answer Holt as evidence of consciousness of guilt. Citing Federal Rule of Evidence 403, counsel asserted without explanation that such testimony would be irrelevant and "highly" prejudicial.
The trial judge commented that Holt's question was not a statement "submitted for the truth of the matter asserted," and appellant's ensuing silence was merely his conduct -- it was "just what happened." Further, the judge stated, appellant's silence was "relevant" and "probative in the context of the case," and appellant had identified no specific danger of unfair prejudice. Consequently, the judge rejected appellant's requests for discovery sanctions and exclusion of Holt's anticipated testimony pursuant to Rule 403.
When Holt later took the stand, additional facts emerged regarding his inquiry of appellant. The relevant portion of the prosecutor's direct examination of Holt proceeded as follows:
Q: Do you know how that gun got in the car that night?
Q: Did you ever have occasion to ask Mr. Comford how that gun got in the car?
A: After I was sitting on the curb in handcuffs, I did have ...