Appeal from the Superior Court of the District of Columbia (CF2-6011-07) (Hon. Brian Holeman, Trial Judge)
Before RUIZ and THOMPSON, Associate Judges, and FERREN, Senior Judge.
Appellant was convicted on one count each of fleeing from a law enforcement officer*fn2 and reckless driving.*fn3 He received consecutive prison sentences of 28 months for the flight conviction and three months for reckless driving, to be followed by three years of supervised release. He contends that (1) the District of Columbia lacked authority to prosecute the flight charge; (2) the trial court committed reversible error by denying his motion for a mistrial and allowing the trial to proceed once the jury had heard that appellant was under surveillance for criminal activity not at issue in this case; and (3) the convictions merge under the double jeopardy clause of the Fifth Amendment, requiring that one be vacated. We reject the first two contentions, agree with the third, and thus remand for vacation of one of appellant's two convictions.
At trial, Officer Mike Derian from the Metropolitan Police Department testified that at 3:00 a.m. on February 25, 2007, he and his partner, Officer Justin Linville, "were conducting a surveillance operation." Officer Derian saw a man, whom he identified as appellant, leave a building near the corner of 21st and G Streets, N.E., enter a Lexus coupe parked nearby, and drive away. Derian radioed his partner, who picked him up, and the two followed appellant. At this point in the testimony defense counsel objected, arguing that the officers had been "staking out" appellant and that the government had not advised counsel, during discovery, that his client had been under surveillance. The government replied that Officer Derian had never said he was investigating appellant, and that the surveillance had nothing to do with the charged offenses. Counsel moved for a mistrial, which the court denied as premature, indicating that counsel could cross-examine the officer about any implication that the officers had been investigating appellant.
Thereafter, Officer Derian testified that, upon seeing appellant "roll through" a stop sign, the officers turned on their squad car's emergency equipment and appellant sped away. After a high-speed chase during which appellant drove through several stop signs and a red light -- forcing other cars to stop to avoid a collision -- the officers broke off their pursuit because of a concern for public safety. Officer Derian added that, although it was 3:00 a.m. when he first saw appellant get into the Lexus, he could see appellant clearly because of the street lights nearby. Officer Linville also testified, offering essentially the same testimony as that of his partner.
On November 6, 2009, less than two weeks before oral argument in this court, appellant filed a motion for summary disposition citing In re Crawley, 978 A.2d 608 (D.C. 2009), for the proposition that the District of Columbia Office of the Attorney General (OAG) lacked authority to prosecute him on the flight charge. His motion notes his indictment at the instance of the United States Attorney's Office (USAO), and argues that the USAO alone has authority to prosecute this felony in the District of Columbia. The District replies that the USAO properly "handed over" its prosecutorial authority to the OAG, citing a District statute that authorizes the USAO to consent to OAG prosecution of an offense, ordinarily charged by the United States, when joined with an offense properly brought by the District of Columbia.*fn4
Appellant did not raise this argument at trial, and thus we review for plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993); Super Ct. Crim. R. 52 (b) (2006). We find none. Appellant contends that the OAG's flight prosecution is "fatally defective for jurisdictional reasons," an argument we have rejected by calling the issue "procedural[,] . . . without effect upon the court's jurisdiction." In re Marshall, 467 A.2d 979, 980 (D.C. 1983) (per curiam). But assume, for the sake of argument, that there was "error" that is "plain." Appellant cannot establish the third requirement under plain error review: that his "substantial rights" were affected. Olano, 507 U.S. at 732. More specifically, he cannot show that, but for the error -- that is, if instead of the OAG the USAO had been the prosecutor -- there is a reasonable probability that the result of the trial would have been different. See Thomas v. United States, 914 A.2d 1, 21 (D.C. 2006) (citing United States
v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004)). As the District notes in its response, "the evidence at trial would have been the same, regardless of which prosecuting authority handled the case." Appellant's argument accordingly fails.
Appellant relies, next, on an "other crimes" argument, claiming trial court error in denying his motions for a mistrial.*fn5 He contends that the officers' testimony that they were conducting a surveillance operation when they observed and chased appellant prejudiced him unduly by suggesting -- without regard to the events at issue -- that appellant was a man of bad, indeed criminal, character. See Robinson v. United States, 623 A.2d 1234, 1238 (D.C. 1993) (citing, among others, Drew v. United States, 331 F.2d 85, 89-90, 118 U.S. App. D.C. 11, 15-16 (1964)). The trial court rejected this argument, ruling that information about the surveillance had been too limited to cause undue prejudice and intimating that counsel himself, not the government, had been responsible for highlighting the issue. The record supports the trial court here.
Although not discussed as such at trial, we are satisfied that the limited surveillance evidence of record is not traditional Drew, "other crimes" evidence but, rather, comes within the well-established teaching of ...