59 A.3d 1239
D.C.2013Background
- Fadero was convicted of felony assault on a police officer while armed (APOWA) and related charges for the February 12, 2011 incident.
- He also was convicted for unlawful possession of marijuana and related offenses from a search incident to his February 25, 2011 arrest.
- The offenses from February 12 and February 25 were joined for a single trial, and Fadero moved to sever them; the trial court denied the motion.
- Two redacted radio transmissions between Officer O’Gorman and a dispatcher were admitted, with hearsay redactions implemented.
- The jury was instructed on the elements of APOWA, including the bodily-injury standard at issue.
- The court remanded to vacate the ADW conviction, which merged into the APOWA conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was joinder proper under Rule 8(a)? | Joinder merges unrelated incidents from Feb 12 and Feb 25. | Joinder was proper because evidence overlapped and furthered trial economy. | Yes; offenses were connected and properly joined. |
| Did the court abuse its discretion by denying severance under Rule 14? | Severance needed to avoid prejudice from cumulation. | Joinder did not create substantial prejudice; defenses remained distinct. | No abuse; no compelling prejudice requiring severance. |
| Were the redacted radio runs admitted in error affecting substantial rights? | Redacted statements were prejudicial hearsay improperly admitted. | Any admitted statements did not prejudice substantial rights. | No reversible error; any plain error did not affect substantial rights. |
| Was the APOWA instruction on 'significant bodily injury' correct? | Definition should track a higher threshold from aggravated assault. | Definition should align with the felony assault statute's 'significant bodily injury'. | Correct; definition aligned with the felony assault statute. |
| Was there sufficient evidence for APOWA, ADW (and related offenses), and fleeing after injury? | Evidence did not support all elements, especially for APOWA. | Evidence supported APOWA and related offenses; ADW merges with APOWA. | Sufficient evidence for APOWA and fleeing; ADW merged and vacated. |
Key Cases Cited
- Ball v. United States, 26 A.3d 764 (D.C.2011) (joinder and severance framework; overlap of proof not required reciprocal admissibility)
- Gooch v. United States, 609 A.2d 259 (D.C.1992) (reciprocal admissibility not test for Rule 8(a) joinder)
- Nicholson v. United States, 368 A.2d 561 (D.C.1977) (photo array procedures and identification reliability)
- In re R.S., 6 A.3d 854 (D.C.2010) (definition of significant bodily injury; framework for injury standards)
- In re R.S., 6 A.3d 858 (D.C.2010) (application of bodily-injury standards within assault statutes)
- Perry v. United States, 36 A.3d 799 (D.C.2011) (interpretation of statutory terms consistent across related offenses)