Appeal from the Superior Court of the District of Columbia (CF1-15546-06) (Hon. Neal E. Kravitz, Trial Judge)
(Amended March 10, 2011)*fn1
Thomas D. Engle, with whom Sharon L. Burka was on the brief, for appellant. Jonathan P. Hooks, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Suzanne Grealy Curt and S. Vinet Bryant, Assistant United States Attorneys,were on the brief, for appellee.
Before WASHINGTON, Chief Judge, KRAMER, Associate Judge, and FERREN, Senior Judge.
KRAMER, Associate Judge: Vincent Workman appeals his convictions for first-degree murder while armed, possession of a firearm during a crime of violence (PFCV) and two counts of carrying a pistol without a license (CPWL). D.C. Code §§ 22-2101 to-4502-4504 (b)-4504 (a). Workman argues that the trial court erred by declining to sever one of the CPWL counts from the other counts, and by declining to adopt his proposed language for a jury instruction regarding motive. We find no error and affirm.
Workman was charged and convicted based on two separate incidents. The first occurred on February 6, 2006, when Workman was alleged to have murdered an acquaintance. Workman was charged with first-degree murder, PFCV and CPWL for his actions on February 6. Later, on March 10, 2006, Workman was arrested. Prior to his arrest, Workman was alleged to have been in possession of a pistol that he left on the rear floorboard of a car. He was charged with CPWL for his actions on March
10. The government alleged that the pistol Workman possessed in March was the murder weapon in February.
Prior to trial, Workman moved to sever the March CPWL count from the other counts to avoid prejudice.Workman argued that joinder was prejudicial because the evidence of the February murder count and the associated weapons charges would be inadmissible at a trial for the March CPWL count. In addition, without making a specific proffer, Workman argued that he might wish to testify regarding the charges stemming from one day and not the other. Finding that the evidence in the two trials would be mutually admissible, and that Workman had not made a proffer sufficient to show prejudice, the trial judge denied the motion.
At trial, the government did not present any evidence of motive. The
court proposed instructing the jury that though motive was not an
element the government was required to prove, the jury could consider
the presence or absence of motive when assessing whether or not the
government had proven its case beyond a reasonable doubt.*fn2
Workman requested that the court instruct the jury that it
could "consider the absence of a motive as support for the defendant's
innocence."*fn3 The trial court declined to give Workman's suggested language.
The jury convicted Workman on all counts, and he now assigns error to both the trial court's denial of his motion to sever, and the court's giving the motive instruction.
Superior Court Criminal Rule 14 permits a trial court to sever properly joined offenses to avoid prejudice "as justice requires." Super. Ct. Crim. R. 14. To warrant severance, a defendant must show "the most compelling prejudice . . . from which the court would be unable to afford protection if both offenses were tried together." Parker v. United States, 751 A.2d 943, 947 (D.C. 2000) (internal quotation omitted). The decision whether or not to grant a motion for severance is committed to the discretion of the trial court. Arnold v. United States, 511 A.2d 399, 404 (D.C. 1986). We "will overturn the trial court's decision to deny a motion for severance only when the appellant makes a clear showing that the trial court has abused its broad discretion." Cox v. United States, 498 A.2d 231, 235 (D.C. 1985). "In order to establish the trial court's abuse of its broad discretion in denying the severance, the appellant must show the most compelling prejudice, from which the court would be unable to afford protection if both offenses were tried together." Bailey v. United States, 10 A.3d 637, 642 (D.C. 2010) (citation and quotation marks omitted). "'The most compelling prejudice' does not encompass all prejudice, for there is the possibility of ...