Appeal from the Superior Court of the District of Columbia (F-6540-03) (Hon. Wendell P. Gardner, Jr., Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before RUIZ, Associate Judge, and BELSON and TERRY, Senior Judges.*fn1
After a jury trial, appellant was convicted of aggravated assault while armed (AAWA) and five related firearms offenses.*fn2 On appeal, he contends that the trial court abused its discretion when it allowed the government to introduce evidence of suspected marijuana that was found on his person and in the console of the car he was driving at the time of his arrest, even though he was not charged with possession of marijuana. Second, he challenges the trial court's ruling that allowed the government to cross-examine a defense witness about that witness' pending criminal case and detention status. Third, appellant contends that the trial court committed reversible error in instructing the jury on the definition of "serious bodily injury," an element of aggravated assault while armed. Finally, appellant asserts that there was insufficient evidence to convict him on all counts. Although we do find error in two respects, we conclude that one of these errors was harmless and that the other can be remedied by reversing the convictions on two counts and remanding the case for partial resentencing. In all other respects we affirm the judgment of conviction.
On September 4, 2003, at approximately 3:00 p.m., Officer Mark Harrison of the Metropolitan Police was on duty in the 600 block of Atlantic Street, S.E., when he heard a gunshot. He went to investigate and found Reginald Bailey in a nearby alley, limping and in extreme pain, with blood coming from his boot. Mr. Bailey told Officer Harrison that a man named "Little Tony" shot him and then drove away in a black Honda with tinted windows. Officer Harrison also heard Mr. Bailey tell his brother, who arrived a few minutes later, that Little Tony shot him.*fn3 Eight days later, Mr. Bailey identified appellant as the person who shot him from an array of photographs shown to him by another member of the Metropolitan Police, Detective Philip Moore.*fn4
Several weeks after the shooting, Mr. Bailey saw appellant driving the same black Honda, wrote down its license number, and notified Detective Moore. On October 21, a few days later, while on patrol in a police cruiser with two other officers, Officer Lance Andriani saw appellant driving the black Honda. He and his fellow officers stopped the car because they knew there was an outstanding arrest warrant for appellant. When they searched the Honda, the officers found a loaded .40 caliber Smith & Wesson pistol in the covered center console beside the driver's seat. In the console, next to the gun, were sixty-one small plastic ziplock bags containing a green weed substance. Four additional plastic bags containing a green weed substance, similar in size and color, were recovered from appellant's pocket. A police department firearms expert, Jonathan Pope, compared the bullet taken from Mr. Bailey's foot with the gun recovered from the car and determined that the bullet was fired from that gun.
Appellant presented one witness in his defense, William Murdock. Mr. Murdock testified that he was a friend of appellant. On the day of the shooting, he said, he was standing right next to appellant, about fifty feet away from Mr. Bailey, when Bailey was shot. He stated that appellant did not shoot Mr. Bailey, but he did not see who did. On cross-examination, Mr. Murdock admitted that he had been incarcerated for almost two weeks in a pending criminal case in federal court. He also revealed that he was not on good terms with Mr. Bailey and had talked with appellant virtually every day since the date of the shooting.
Appellant contends that the trial court erred when it admitted evidence about the ziplock bags of suspected marijuana which the police recovered from his person and from the black Honda's console, next to the gun, more than six weeks after the shooting of Mr. Bailey.*fn5 He argues that this evidence was more prejudicial than probative because it could only portray him to the jury as a drug dealer. Moreover, he contends, the suspected drugs were not admissible because there was no evidence to connect the drugs to the shooting. The government maintains in response that it had to introduce the ziplock bags that were found on appellant's person and in the console of the black Honda, along with the gun, in order to prove that appellant was in constructive possession of the gun several weeks after the shooting. We find the government's argument more persuasive.
"A decision on the admissibility of evidence . . . is committed to the sound discretion of the trial court, and we will not disturb its ruling absent an abuse of discretion." Smith v. United States, 665 A.2d 962, 967 (D.C. 1995) (citations omitted). "Ordinarily, any evidence which is logically probative of some fact in issue is admissible . . . unless it conflicts with some settled exclusionary rule." Martin v. United States, 606 A.2d 120, 128 (D.C. 1991) (citations omitted). One such rule concerns evidence of other crimes, which is generally inadmissible to prove that the defendant committed the crime or crimes for which he is on trial. Drew v. United States, 118 U.S. App. D.C. 11, 15, 331 F.2d 85, 89 (1964). However, "in cases where evidence of incidental, uncharged criminal conduct is inextricably intertwined with evidence of the charged offense, evidence of the uncharged criminal conduct is directly admissible without the necessity of a cautionary Drew instruction." Toliver v. United States, 468 A.2d 958, 961 (D.C. 1983). For evidence to be properly admitted under Toliver, it must be "relevant to explain the immediate circumstances surrounding the offense charged." Id. at 960.*fn6
In Johnson v. United States, 683 A.2d 1087, 1101 (D.C. 1996) (en banc), cert. denied, 520 U.S. 1148 (1997), this court upheld the trial court's admission of expert testimony which showed that a gun with which the defendant shot the victim in the District of Columbia was the same gun that was used shortly thereafter to kill two children in the victim's apartment in nearby Maryland. We noted that other crimes evidence was admissible not only when it qualified for an exception under Drew, but also when it was relevant and, as in Toliver, constituted "direct proof of the crime charged." Id. at 1101. Under the latter theory, the evidence may still "be excluded if its probative value is substantially outweighed by the danger of [the] unfair prejudice it poses." Id. We concluded, however, that the trial court had not abused its discretion when it ruled that the danger of unfair prejudice did not outweigh the probative value of the ballistics evidence. We held accordingly that the ballistics evidence was properly admitted, even though the jury was thereby made aware of the brutal killing of two innocent children. Id. at 1095.
In the instant case, Drew is not applicable because the evidence of the ziplocks containing material appearing to be marijuana does not fall under the prohibitions of Drew.*fn7 "Specifically, Drew does not apply where such evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context." Johnson, 683 A.2d at 1098. The ziplock bags directly connected appellant to the gun that was found in the console of the car he was driving at the time of his arrest.*fn8 That gun was later linked to the shooting of Mr. Bailey through ballistics evidence which confirmed that the bullet taken from Mr. Bailey's foot was fired from the gun found in the console of the car.*fn9 Thus we conclude that the trial court committed no error in its reliance on Johnson and its determination that the degree of prejudice that appellant might face if the jury concluded that he also possessed drugs was minimal,*fn10 especially when compared with the potential prejudice suffered by the ...