Eddie Williams v. United States , 2015 D.C. App. LEXIS 8 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CF-1837
EDDIE WILLIAMS, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-4178-12)
(Hon. Florence Y. Pan, Trial Judge)
(Submitted February 5, 2014 Decided January 15, 2015)
Ian A. Williams was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman,
Veronica M. Sanchez, and David B. Goodhand, Assistant United States Attorneys,
were on the brief, for appellee.
Before THOMPSON and EASTERLY, Associate Judges, and RUIZ, Senior
Judge.
RUIZ, Senior Judge: On July 5, 2012, appellant Eddie Williams was charged
by superseding indictment with assault with a dangerous weapon (ADW),1
1
D.C. Code §§ 22-402, -3611 (2012 Repl.).
2
possession of a firearm during a crime of violence (PFCV),2 threats to injure
another person (felony threats),3 and commission of a felony while on release.4
The first three charges were tried by a jury, which convicted appellant of felony
threats and acquitted him of ADW5 and PFCV. The court convicted him of
committing a felony while on release. Appellant challenges the trial court’s ruling
admitting evidence that he had previously threatened the complaining witness on
multiple occasions, once while armed. He also contends that the trial court
improperly admonished a witness to ―tell the truth‖ in the jury’s presence, and
impermissibly based appellant’s sentence in part on finding that appellant was
armed when he threatened the complaining witness, even though the jury acquitted
him of the weapons offenses. We conclude that appellant did not suffer substantial
prejudice as a result of the asserted errors, and affirm the convictions.
2
D.C. Code § 22-4504 (b) (2012 Repl.).
3
D.C. Code § 22-1810 (2012 Repl.).
4
D.C. Code § 23-1328 (a)(1) (2012 Repl.).
5
The jury hung on the lesser-included offense of simple assault.
3
I.
All charges arise from a single incident on October 11, 2011, when appellant
approached a neighbor, D.J., and threatened to shoot him. D.J. and a friend who
witnessed the encounter testified that they saw appellant reach into the waist or
pocket of his jeans to reveal what looked like the handle of a gun. As the jury
learned, this was not the first hostile interaction between appellant and D.J. They
had met about one year before, right after D.J. had moved to the 37th Street, S.E.
neighborhood, when appellant put a gun to D.J.’s head and told him to ―give me all
your shit.‖ D.J. said at trial that the weapon appellant put to his head, which he
saw from the ―corner of [his] eye,‖ looked ―like a toy gun,‖ like a ―gray or black‖
9-mm gun. When D.J. resisted, appellant tried to ―jack‖6 him and asked him to go
to the ―cut,‖ an invitation that D.J. refused because he did not want appellant ―to
shoot‖ him. D.J. also testified that after that initial encounter appellant would call
him ―bitch ass‖ and taunt him on ―a weekly or monthly basis‖ about D.J.’s former
neighborhood, as ―everybody‖ did.
6
D.J. explained that ―jack‖ means ―like they trying to get me like play with
me like.‖
4
II.
On appeal, appellant contends that the jury should not have been allowed to
hear evidence that: (1) he had once assaulted and made many taunting remarks to
D.J. during the course of the year prior to the October 11, 2011, incident that
underlay the charges, and (2) he was armed with what looked like a gray or black
9-mm gun a year before the charged offenses. The court admitted evidence of
appellant’s past taunts and armed assault against D.J. as relevant to the felony
threats count because it showed the relationship between the parties and explained
why D.J. would have believed that appellant was reaching for a gun. The trial
court ruled that evidence that appellant had brandished a weapon at D.J. in the past
was also relevant to the ADW and PFCV counts, insofar as it provided reason to
think that appellant owned the weapon used to commit the charged offenses. The
trial judge considered that ―the probative value is clearly far greater than any
prejudicial effect.‖
We review the trial court’s evidentiary rulings for abuse of discretion. See
(Markus) Johnson v. United States, 960 A.2d 281, 294 (D.C. 2008). We apply a
five-step analysis in reviewing whether the trial court has properly exercised
discretion. Id. at 295 (citing (James) Johnson v. United States, 398 A.2d 354, 363-
5
67 (D.C. 1979)). Part of the abuse of discretion standard includes an inquiry into
whether substantial prejudice has ensued as a result of the trial court’s
discretionary action. Id.It is a longstanding rule in this jurisdiction that in order to safeguard the
presumption of innocence, evidence of a defendant’s past bad acts is inadmissible
to prove disposition to commit the charged crimes. See, e.g., Harris v. United
States, 366 A.2d 461, 463 (D.C. 1976) (citing Drew v. United States, 331 F.2d 85,
89 (D.C. Cir. 1964)). Such evidence is admissible only if offered for a substantial,
legitimate purpose, such as proving motive, intent, common plan, identity, or
absence of mistake or accident, id. at 463 n.5 (quoting Drew, 331 F.2d at 90), and
only if the issue is genuine, disputed, and material in the case. See Campbell v.
United States, 450 A.2d 428, 430 (D.C. 1982) (citing Willcher v. United States,
408 A.2d 67, 75-76 (D.C. 1979)). However, evidence of the defendant’s past bad
acts does not come within the general rule of exclusion if it is ―(1) direct and
substantial proof of the charged crime, (2) closely intertwined with the evidence of
the charged crime, or (3) necessary to place the charged crime in understandable
context.‖ (William) Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996)
(en banc). Evidence of past acts that place the charged crime in context are those
that are ―so closely related to the charged offense in time or place that they are
6
necessary to complete the story of the crime by . . . placing it in context of nearby
and nearly contemporaneous happenings.‖ Id. (quoting Holmes v. United States,
580 A.2d 1259, 1266 (D.C. 1990)); see Wilson v. United States, 690 A.2d 468, 469
(D.C. 1997) (defendant’s threats to kill the decedent days before decedent was
killed were admissible because ―relatively contemporaneous‖ with the charged
offense). As with any other relevant evidence, the trial court must exclude
otherwise admissible evidence of the defendant’s past bad acts if its probative
value is ―substantially outweighed‖ by the risk of unfair prejudice. (William)
Johnson, 683 A.2d at 1100-01.
A. Evidence of appellant’s past threats toward D.J.
The offense of threats requires proof of three elements: (1) the defendant
uttered words to another person, (2) those words were ―of such a nature as to
convey fear of serious bodily harm or injury‖ to the ordinary hearer, and (3) the
―defendant intended to utter the words that constituted the threat.‖ Carrell v.
United States, 80 A.3d 163, 171 (D.C. 2013); United States v. Baish, 460 A.2d 38,
41 (D.C. 1983) (recognizing that the elements for misdemeanor threats under D.C.
Code § 22-407 and felony threats are the same), abrogated on other grounds by
Carrell, 80 A.3d at 171. In weighing whether the evidence suffices to satisfy the
7
second element, the jury must posit an ordinary hearer ―aware of all the
surrounding circumstances,‖ including the relationship between the defendant and
the person to whom facially threatening language is directed, to determine whether
the defendant’s words, uttered within the framework of that relationship, would
convey fear of serious bodily harm. See Gray v. United States, 100 A.3d 129, 134,
135-36 (D.C. 2014); In re S.W., 45 A.3d 151, 154, 157 (D.C. 2012) (noting that
evidence is generally sufficient for a threats conviction when threatening
statements are made in the context of a ―volatile or hostile relationship‖).
At issue in this appeal is whether the government’s presentation of evidence
about the past hostile relationship between appellant and D.J. in support of the
charged ADW and felony threats ran afoul of our longstanding prohibition on the
admission of evidence of a defendant’s past bad acts to prove propensity. Here,
because one of the past bad acts in evidence was similar to the charged offense—
armed assault and threats—the risk that the jury would draw an improper inference
of propensity was ―at its greatest.‖ Fields v. United States, 396 A.2d 522, 527
(D.C. 1978).7
7
Instead, the trial judge thought the reverse, noting that, ―this is a case in
which he’s alleged to have assaulted somebody with a gun so it’s the same type of
conduct and so I think the prejudicial effect is not so great as to substantially
outweigh the probative value.‖
8
Evidence about the hostile relationship between appellant and D.J. was
relevant to determining whether the defendant’s words charged as threats would
have conveyed a fear of serious bodily harm to an ordinary hearer in D.J.’s
circumstances. Some evidence of the repeated taunting—especially the more
recent instances—was clearly probative and admissible to show appellant’s
hostility. But the same cannot be said of the prior armed assault. The passage of
time—about a year—reduced its probative value. The risk of prejudice from
evidence of the prior armed assault, when viewed in light of its reduced probative
value and the availability of other less prejudicial evidence (the repeated taunting)
to show appellant’s hostility, weighed heavily against admission of the year-old
armed assault. Nor was it admissible as ―intertwined‖ with the charged offenses.
Parker v. United States, 586 A.2d 720, 725 (D.C. 1991) (defendant’s physical
abuse of complaining witness seven months before the charged offense was too
temporally removed to be part of the ―surrounding circumstances‖ of the offense).
The trial court, by misapprehending the risk of prejudice, see note 7 supra,
erred in its exercise of discretion. See (James) Johnson, 398 A.2d at 365 (noting
that failure to consider a relevant factor or reliance on an improper factor is error).
This initial error in the court’s analysis necessarily infected its subsequent
weighing of probative value and potential prejudice. We conclude, nonetheless,
9
that there was no ―abuse‖ of discretion because appellant was not substantially
prejudiced. Id. at 367. First, the court gave a limiting instruction which told the
jury it could use evidence of the past attempted armed robbery only to provide
context for the charged offenses and to show the relationship between appellant
and the complainant, but not for any other purpose.8 Second, it appears that the
jury did not give undue consideration to the prior armed assault in light of its
acquittal on the armed offenses (ADW and PFCV). See (Renaldo) Lucas v. United
States, 102 A.3d 270, 281-82 (D.C. 2014) (emphasizing importance of proper
limiting instruction in evaluating prejudicial impact of prior crimes evidence).
Thus, we can be confident that the jury’s verdict finding appellant guilty of threats
was not substantially swayed by any error.
8
Other crimes evidence:
You have heard evidence that Eddie Williams allegedly
attempted to rob [D.J.] on a previous occasion. It is up to
you as a threshold matter to decide whether to accept that
evidence. This evidence was admitted for the limited
purpose of providing context for the charged offenses
and for showing the relationship between Mr. Williams
and Mr. [J.]. In addition, there is some evidence that a
gun may have been used during the alleged attempted
robbery. It is up to you to decide if a gun was used. If
you find that a gun was used on the prior occasion, you
may infer but are not required to infer that the same gun
was used during the charged offenses if those offenses
occurred. You may not use this evidence for any other
purpose.
10
B. Evidence of prior gun possession
Evidence that the defendant has possessed the weapon used to commit the
charged offense is relevant evidence of guilt, and is therefore admissible provided
that the connection between the weapon and the offense is not ―conjectural and
remote.‖ Busey v. United States, 747 A.2d 1153, 1165 (D.C. 2000) (quoting
Burleson v. United States, 306 A.2d 659, 662 (D.C. 1973)). Thus, ballistics
evidence that the weapon used in the charged offense was also used by defendant
in another shooting eight days earlier is admissible as direct evidence that
defendant possessed that weapon. See Jenkins v. United States, 80 A.3d 978, 998-
99 (D.C. 2013). Evidence that the defendant’s weapon met the same general
description as the one used in the charged offense may also be admissible under
this well-established rule. See Daniels v. United States, 2 A.3d 250, 254, 262
(D.C. 2010) (testimony of several witnesses that the defendant had been seen many
times with a black gun and a silver gun was properly admitted when there was
testimony that the murder weapon was black and other testimony that it was
silver). Admissibility turns on consideration of temporal proximity and the
closeness of the description of the weapon known to be (or have been) in the
defendant’s possession with the one used in the charged offense. Evidence
connecting the defendant with the weapon used in the offense that puts the weapon
11
in the defendant’s possession close in time to the offense is admissible. See, e.g.,
Jones v. United States, 27 A.3d 1130, 1134 (D.C. 2011) (one month after);
Muschette v. United States, 936 A.2d 791, 797 (D.C. 2007) (several weeks before).
But courts do not abuse discretion in admitting evidence that the defendant had the
weapon at a time further removed from the offense if there is strong evidence that
the weapon was the same type as the one used in the charged offense. See
McConnaughey v. United States, 804 A.2d 334, 338-39 (D.C. 2002) (eleven
months between two sightings of defendant with a chrome-colored .32 caliber
automatic weapon and offense in which .32 caliber bullets were fired from semi-
automatic pistol); (Phillip H.) Johnson v. United States, 701 A.2d 1085, 1092
(D.C. 1997) (picture of defendant taken more than a year before charged offense
admissible where .38 or .32 caliber revolver shown in picture was of design
abandoned in 1940s and would have produced bullets with no rifling marks like
.38 caliber bullets recovered from murder victim).
In this case, the connection between the weapon purportedly used in the
charged October 11, 2011, assault and the weapon that, according to D.J., appellant
had used one year earlier in an attempt to rob him, was tenuous. D.J. and another
witness to the charged offense saw only what ―looked like‖ the black handle of a
gun in appellant’s waistband or pocket that they did not describe in any further
12
detail, whereas a year earlier D.J. saw, out of the corner of his eye, appellant
brandishing a ―black or grey‖ gun that appeared to be a 9-mm handgun. The
considerable temporal remove between the two events coupled with the tenuous
similarities between the descriptions of the weapons lessened the probative value
of the evidence, while the risk of prejudice was significant for the reasons we have
discussed. These considerations weighed heavily against admission of evidence of
appellant’s prior armed assault on D.J. with a 9-mm gun.9
We consider whether appellant was substantially prejudiced by admission of
the evidence and again conclude that he was not. The weaknesses in the evidence
connecting the two weapons were pointed out to the jury in closing argument, and
the trial court gave a proper limiting instruction. See note 8, supra. In light of the
jury’s acquittal of the ADW and PFCV charges, we are confident that the jury did
not consider the evidence of his prior gun possession for an improper purpose and
thus that appellant did not suffer substantial prejudice.
9
The trial court recognized that ―the details about this gun are less clear, as
those in the case law,‖ but concluded that ―there’s a reasonable probability that it’s
the same gun. There is no indication that it is not the same gun.‖ This statement
does not support admission of a defendant’s gun possession a year earlier.
13
III.
Appellant contends the trial court plainly erred in reminding D.J. that he was
under oath and directing him to answer counsel’s questions truthfully. He argues
that by doing so in front of the jury, the trial court impliedly discredited D.J.’s
exculpatory testimony, lent judicial weight to the government’s case, and deprived
him of an impartial judge, constituting structural error.
We begin by recounting what occurred at trial. D.J. was a reluctant and at
times uncooperative witness. At one point, the prosecutor asked D.J. what he had
seen when appellant ―reached into his pants pocket.‖ D.J. responded that he
thought he saw ―like a handle‖ but could not say of what, and then said it was
―probably like a belt or something like that. I don’t know. . . . I can’t explain.‖
The prosecutor asked D.J. to ―think back‖ to when he told the grand jury that he
saw a ―handle‖ and asked again, ―what do you mean by handle?‖ The following
colloquy ensued in the jury’s presence, without objection from the defense:
[Government]: . . . I want you to think back. You
used the word handle. What do you
mean by handle?
[Defense]: Objection.
14
[Court]: Overruled. You’re under oath, sir.
Answer the question.
[Witness]: Am I under oath?
[Court]: You’re under oath. You swore to tell
the truth.
[Witness]: Okay.
[Court]: You have to tell the truth.
...
[Witness]: I think it’s like a – I think it’s like a
handle, like a handle.
[Government]: Okay. Of what? What did you think
it was?
[Witness]: I don’t know. It could have been
anything. But I think it was a handle.
I don’t know. . . . It was like he was
holding on a door knob or something
like that. That’s why I say handle.
The government then impeached D.J. with his statements to the grand jury that the
handle he saw was the handle of a gun.
Appellant does not maintain that trial judges are generally precluded from
admonishing a witness to testify truthfully. What appellant contends is that to do
so in the jury’s presence while the witness is testifying ―is tantamount to telling the
witness that the judge does not believe the witness.‖
15
This court has never decided whether it is an abuse of discretion to remind
witnesses of their oaths or to admonish them to tell the truth during their testimony
in front of a jury.10 Other courts have found such statements to be within the
court’s discretion and even part of its obligation. See United States v. Hinson, 585
F.3d 1328, 1340 (10th Cir. 2009) (―It is entirely proper—and oftentimes it is
imperative—that a witness be cautioned about the consequences of an oath.‖
(quoting United States v. Vosper, 493 F.2d 433, 436 (5th Cir. 1974))). However,
instructing a witness to answer truthfully carries the implication that the judge
thinks the witness might not be doing so. In a jury trial, the assessment of a
witness’s credibility is a function reserved exclusively to the jury, and encroaching
on that function implicates the defendant’s right to a jury trial.
10
We have addressed a related question about the propriety of jury
instructions that indicate to the jury that the judge thinks one or more of the
witnesses are lying. In Kinard v. United States, 416 A.2d 1232, 1235 (D.C. 1980),
we rejected the ―falsus in uno‖ instruction as inappropriate for use in the District of
Columbia court system. That instruction told jurors, in part, that they could
disregard a perjurer’s testimony. We noted that ―one of the serious objections [to
the instruction] is that the jury readily may get the implication that the trial judge
considers that one or more of the witnesses have willfully testified falsely.‖ Id.(quoting Knihal v. State, 36 N.W.2d 109, 113-14 (Neb. 1949)). The instruction
furthermore ―constitutes the expression of the judge as to the credibility of the
witnesses and the weight to be given to their testimony.‖ Id. Here, we are
considering not the appropriateness of an instruction but of an admonishment of a
particular witness during his testimony. But the concern that the judge may not
influence the jury’s assessment of the witness is the same.
16
In conducting plain error review, we must first determine whether it should
have been obvious to the trial judge that she should not have reminded the witness
of the oath and to ―tell the truth.‖ See Lowery v. United States, 3 A.3d 1169, 1173
(D.C. 2010). Even though it is well established that courts must scrupulously
avoid conveying to the jury that they believe a witness is lying or telling the truth,
we have not previously addressed the issue in terms of a facially neutral reminder
of the juror’s oath. Therefore, the error, if any, would not have been obvious to the
judge. Cf. Arthur v. United States, 986 A.2d 398, 412-13 (D.C. 2009) (holding that
in light of established legal principle that judge may not interfere in defendant’s
decision whether to testify, the manner in which trial judge addressed defendant
was obviously erroneous where judge did not simply inform the defendant of his
rights but ―impos[ed] considerable pressure‖ on defendant). Viewing the court’s
admonition in context, we think that in this case the court more likely conveyed
that the witness was being uncooperative and reluctant to answer questions—
something that would already have been apparent to the jury. That impression
would have been confirmed by a comparison between the witness’s in-court
testimony and the witness’s more forthright testimony before the grand jury. We,
17
therefore, conclude that appellant has not shown there was plain error warranting
reversal of his convictions.11
IV.
Finally, appellant challenges the court’s decision to base his sentence in part
on the court’s finding that he was armed during the charged offense despite the
jury’s acquittal on the weapons charges, ADW and PFCV.12 We reject this
challenge. The court enjoys broad discretion in sentencing and can rely on ―all the
evidence presented at trial, including evidence of charges on which appellant was
acquitted,‖ provided that sentencing is not based on ―misinformation of a
constitutional magnitude.‖ Greene v. United States, 571 A.2d 218, 220-21 (D.C.
1990) (quoting United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985)).
There is no claim that the trial judge’s finding that appellant was armed was based
on misinformation of any kind; rather, the trial court assessed the evidence that
11
Appellant’s contention that the error was ―structural‖ in nature does not
alter our application of plain error review. See (Jose) Lucas v. United States, 20
A.3d 737, 741 (D.C. 2011).
12
The government argues that this objection was not raised at trial.
However, we note that appellant’s counsel asked the court at sentencing to impose
a lesser sentence in part ―. . . given the nature of the conduct, what the jury found,
[and] that there was no gun involved—.‖ This comment sufficed to preserve the
issue appellant now raises on appeal.
18
was presented at trial in a different manner and under a lesser standard than the
jury.13 The statutes appellant was found guilty of violating carry sentencing ranges
of up to twenty years (for felony threats) and between one and five years (for
committing a felony while on release).14 The trial court’s sentences of twenty-four
months for felony threats and twelve months for committing a felony while on
release were within those ranges. ―Generally, a sentence within statutory limits is
not subject to review.‖ Smith v. United States, 837 A.2d 87, 100 (D.C. 2003)
(citing Walden v. United States, 366 A.2d 1075, 1076 (D.C. 1976)).
For the foregoing reasons, we affirm the judgment of conviction.
So ordered.
13
The trial court was aware of the jury’s acquittal on the PFCV and ADW
charges and clearly stated that she found by a preponderance of the evidence that
appellant was armed while he committed the offense despite the jury’s acquittal on
that charge.
14
See D.C. Code §§ 22-1810, 23-1328 (a)(1) (2012 Repl.).