*2 MACK, Before FERREN and STEADMAN, Judges. Associate
PER CURIAM: Roper, Appellant, Jack A. robbery, D.C. indictment with armed (1981 -3202 &
Code §§ carrying Supp.), (1981). (CDW), He D.C.Code § acquitted on jury was tried before guilty robbery charge found but appeal, Roper asserts of CDW. On be reversed be- should his CDW conviction impermissibly charges were cause two Super.Ct.Crim.R. violation replace ask evening Under of this for time circumstances agree. chain. government called the stand
The Sergeant Metropoli- Vincent Tolson of the I. Department. Sergeant tan Police Tolson governmеnt introduced evidence day, testified that next December tending forcibly show *3 1987, he went to the Reeves at 2000 Center gold complaining stolen a chain from the Street, get a At 14th N.W. to shoe shine. witness, Dyneesha Johnson. Johnson testi- a.m., approximately he the 9:00 entered evening fied of December appeared and what to men’s room noticed 1987, Roper, someone she had known for a handle of nine millimeter semiau- be the years, arranged few called her and to come protruding pocket from pistol tomatic the Although her to house. could not re- she the of a tan coat on floor of one of the Roper member the exact time that had the Sergeant Tolson looked under stalls. arrived, it Johnson estimated stall saw feet of inside. and someone Johnson, p.m. According 10:00 or 10:30 He left the men’s room and radioed then Roper parked his car across the street from re- for assistance. uniformed officers Two horn; and Johnson’s home honked sponded, police ar- and the three officers house, her over Johnson left walked to the appellant They the stall. re- rested inside car, got and in. Johnson stated that the gun jacket pocket.1 BB covered a from approximately two for talked five-to-ten in his behalf at Appellant testified own sitting Roper minutes while in the car. voluntar- trial. He stated that Johnson had give gold then asked her to him the neck- her ily lent him chain when she discovered wearing. initially she lace Johnson broken, that his own necklace wаs but that then, said, thought joking, he was she but he traded chain cocaine. later for her, pulled gun, it Roper pointed out a mother discovered When and her Johnson again demanded the necklace. John- missing, appellant testi- that the chain was complied, this point son testified that at she fied, angry. they very Concerned became removing handing Rop- the ehain and made Johnson had about threats Constance back her er. She then went into house and him, gun pocket placed he BB in his her Roрer told mother that had taken the stated, day, protection.2 for the next he mother, Johnson, necklace. Her Constance trial, filed a motion appellant she looked out the window Prior to testified that indictment, pursu- running street, up the sever the counts in the Roper and saw leav- 8(a) 14.3 The Super.Ct.Crim.R. ing his car Constance Johnson fur- ant to behind. appellant phoned trial court denied this motion. ther stated that later that trial, 8(a) governs joinder of of gun initial At 3.Rule 1. Johnson identified recovered single appellant appellant from as similar to the one where there is fenses in an indictment allegedly (in to rob her. She had used testified there are two or cases where gun square, defendants, in the had been the dark, used of Rule the narrower dictates more large and "medium or size.” She was 8(b) regardless govern, of whether the issue however, impeached, previous statement offenses). joinder joinder or of defendants gun police made had been small. she (D.C. Ray 472 A.2d v. United 1984). 8(a) provides as Rule follоws: Appellant gave explanation a similar of his may be or more Two police the BB reason separate same indictment or information arrested him at the Reeves Center. officers who charged, if the offenses count for each offense however, statement, suppressed by the This misdemeanors, both, or whether felonies or court taken in of Miranda trial violation are or are of the same or similar character Arizona, L.Ed.2d 384 U.S. S.Ct. or on act or transaction based on the same (1966), thus could be admitted connected or more acts or transactions two impeachment if he took witness constituting parts together common or of a York, v. New 401 U.S. stand. See Harris plan. or scheme (1971). Appellant has S.Ct. 28 L.Ed.2d contrast, governs where severed, situations Rule argued charges he joined properly Rule trial, under the offenses are CDW have testified at the joinder potential prejudice from where the but not have been used thus statement could great sufficiently is none- thаt severance against him. of crimes.”4 Winestock
II.
addition,
(D.C.1981).
429 A.2d
8(a),
multiple
Under Rule
has
means
posited
one court
“similar”
together only
tried
the of
be
“
resembling
‘[njearly corresponding;
same or
charac
fenses
similar
alike; having a
many respects;
somewhat
ter;
(2) are
on the same
or trans
based
act
”
v. Wer
United States
general
likeness.’
action;
more acts
are based
two or
ner,
(2d Cir.1980)
(quot
together
con
or transactions
connected
ing
Dictio
New International
stituting
parts of a cоmmon
Webster’s
scheme
nary
supra
(2d ed.)).
plan.
Empirically,
note 3. Whether offenses
have,
rule,
properly
permitted
join-
under
is a
can
Rule 8
courts
as a
law,
question of
and our
sim
review
the “same or
der of offenses
Joyner
matter
is thus
novo.
de
provision only where there is a sub
ilar”
(D.C.1988); Ray,
540 A.2d
degree
similarity among the
stantial
supra
charged.5
find no such substan
crimes
*4
similarity
in the
present
tial
instant
government
argument
The
rests its
indeed,
how,
and,
using any
we fail to
properly
in this case were
definition,
the two offenses аt
reasonable
8(a)
joined solely
provision
of Rule
same
issue here could
construed as “the
be
joinder
allows for
of offenses “of the
which
or similar.”
interpret-
same or similar character.”
In
provision,
re-
ing
largely
courts have
robbery is
in this
Armed
defined
lied on common-sense
definitions of
...
jurisdiction
“by force or violence
as
Thus,
or
term “same
similar.”
we
ac
tak[ing]
person
from the
or immediate
suggested that offenses are of
or
the same
possession
anything of val
tual
of another
similar character
in the
counts
general
dangerous
dead-
“allege
indictment
the same
kinds
while armed
a
or
ue”
with
Werner,
justified.
supra,
Ray,
type");
supra,
F.2d at
theless
731
1989); Thompson, supra,
Ray, supra,
420;
arate
of the
A.2d at
trial
other.”9
472
546
States,
Byrd,
supra
accord
Graves
859;
A.2d
A.2d
at
note
99; Settles,
supra
(D.C.1986);
(3)
the evidence must be
551 A.2d at
note
prove this issue for a
logically
A.2d at 354.
relevant
power
other than its
to demonstrate
reason
determining
In
whether evidence
Landrum, supra,
propensity,
criminal
аlleged
armed
would be
1326; Ali, supra,
L.Ed.2d 962 generally J. ¶ 404[10], Weinstein, at 404-74 to MACK, Evidence Judge, concurring: Associate (1989). -75 join opinion. I I fully the court’s that I would add also believe explicitly This court has never evidence is not rele- we, Nor reached lаtter issue. prove vant to carried a dan- today, until had occasion decide the re gerous beyond power gener- acquittal question lated of whether propensity ate an and so fails inference jointly necessarily one or two tried offenses requirement meet the third for admissi- that the offense of which the defen means bility. at 731. See ante acquitted dant was have been offense, long standing the other “It is in our admissible trial on a principle precludes any improper of onе is inadmissi- and thus Rule 8 law crime *7 recog disposition to to commit joinder prove from harmless. We ble States, guilt beyond a reasonable is crime....” v. United nize that doubt Drew higher proof App.D.C. than is clear and U.S. F.2d a standard of evidence, thus, (emphasis original). “pro- This convincing it is not in in so-called consistent, designed a pensity in find that is to insure that theory, to there is rule” only he is that convicted because convincing clear and evidence an indi defendant is charged guilty crime and not be- a crime where the individ vidual committed using engaged he in other crimi- acquitted has been the reason- cause have ual not, provisions the of Rule It should clear that we in this 12. case, only im- examining where the offenses were acquittal’s pro- decide that an effect on the properly joined initially, that this priety joinder in this of the initial case. See if defendant cannot be held harmless the generally 8 MOORE’S FEDERAL PRACTICE , acquitted (2d of one of the crimes. 1989) (discussing retroactive ed. ¶ 8.06[3] misjoinder), ap- Similarly, therein. of what and cases cited Had we do not reach the issue guilty impact, acquittal our pellant any, of both in this would have on been found if an case, changed analysis a trial court abused its would the fact that of whether has not have denying Rule 14. properly in severance under could not have been discretion these two offenses probative of the defendant’s activity, Thompson as nal see admissible (D.C.1988); problem pointing In out the with A.2d Unit intent. Myers, 550 F.2d argument, ed States v. concluded: this (5th Cir.1977) (“a defendant be tried must the is no connection between There real did, is”). he for who for what he allegation the that other than to thought rule is thus to be fundamental spring from the defendant’s they both presumption guaranteed the of innocence marijuana and to sell predisposition criminal defendants. all Landrum Indeed, logically draw one cannot P.C.P. (D.C. the two incidents connection between a 1989); Thompson, supra, 546 A.2d assuming first because without Campbell No- to sell in Thompson predisposed was (D.C.1982). predisposed he so vember remained Herе, government the that evi- contends Here, April piggy-backs intent in robbery dence of the armed be rele- predisposition. vant in the trial to intent or CDW show (citation omitted).1 Id. at supra, in Thompson, motive. We noted government the present In the cases, many difficult that in “it is a statute notes that violation CDW the impossible to differentiate between carrying requires purpose that “the predisposition to do to intent an act and a dan- deadly use as instrument it,” explained that do A.2d at as- weapon,” ante gerous prior can be- evidence of crimes “[w]here BB appellant’s alleged use of the serts that respect probative come with to intent robbery evening gun to commit a be- has predisposition after inference intend tends to show that did fore drawn, argument been for admission gun weapon. as a For to use weakest, at its for the distinction between to appellant’s be relevant armed and predisposition intent then becomes gun day, in purpose carrying the next ephemеral.” Thompson, Id. at however, requires precisely the-inference (having passenger the defendant been the predisposition that admonished twenty-seven packets in a car which is, against in that because Thompson: marijuana P.C.P.-laced were found beneath BB a gun intended seat) Roper to use passenger charged pos- with he intend- weapon on one occasion that session of with in- a controlled substance distribute, government weapon the BB as a on a and the as- еd to use tent nothing subsequent This can be had occasion.2 serted evidence marijuana propensity argument.3 previously and P.C.P. was but a sold 2. 1. There peatedly to the ample, Thompson out crimes evidence dant’s tent, mission narcotics possession to distribute. than drugs Indeed, gleaned nine hours earlier? night [T]he 421-22. any for apartment as relevant before. What individual inference of are, reason App.D.C. his or her from what defendants a controlled substance with theory prosecutor more Thеre, jury: may be why course, cites who likely personal predisposition. he has the court He used he had the guns did he simply possessed relevant cases argued F.2d 1062 found person dealing use. this use States v. in which upheld defendant’s in this such for an unlaw- See 546 A.2d in the defen gun gun intent theory (1986), As weapons for Payne, an ex *8 illegal intent other with for ad re- 3. minded rule," must I note weapon. The be. He what fore, hours ful He admits Dyneesha Johnson. sha Johnson. weapon. [HJis looks like Secondly, “be alert to purpose, and should unlawful mаnner. to rob he did intent with this ****** [******] modes of evasion before already counsel that courts n apt Thompson Isn’t it it. He was dangerous as to the to rob Dyneesha use sophisticated as well as next weapon "view with had used strange, somebody, day gun weapon was shown going to Johnson. carrying He had used it to he’s found with that was used lo and for nine it in robbery. He’s jaundiced use it a behold, rob propensity dangerous hours be- simple- if need Dynee- point. just this rob eye I can see proper purpose Because no for alleged
which evidence of the armed rob- introduced,
bery could have I been reason,
hold that for this as for as well court, opinion
those set forth for the Drew, the evidence would have inadmissible for separate trial being so, agree
CDW. This I
misjoinder was not harmless. WRIGHT, Appellant,
Robert STATES, Appellee.
UNITED
No. 82-733. Appeals.
District of Columbia Court
Argued Nov. 1988. Sept.
Decided Gorfkle, appointed L.
Judith court, appellant. Fine, Atty., A.
Glenn Asst. U.S. Atty., Jay B. Stephens, whom Farrell, Atty. Michael at the W. Asst. U.S. brief, filed, the brief was were on time appellee. FERREN, Before NEWMAN and GALLAGHER, Judges, Associate Judge. Senior GALLAGHER, Judge: Senior degree first appellant of juryA convicted armed, 22- burglary while D.C. Code §§ (1981), 1801(a) (Supp.1988), three 22-3202 robbery, 22-2901 of armed id. counts §§ armed, 22-3202, (1981), rape while id. (1981), 22-3202, sodomy, id. 22-2801 §§ (1981), forgery, id. § § Appellant uttering, id. 22-1401. § rape while arm- the convictions for contests sodomy contending that the trial ed predisposition." primarily purportedly as relevant defendant’s offered wholly reality bearing *9 546 A.2d at other issue but in some