*1 fact). question Evidently, dent is a appel- in favor of
jury resolved the conflict
lee.
Viewing light in a most the evidence appellee, the trial court
favorable judg- denying appellant’s
err in motion for notwithstanding Appel- verdict.
ment
lee, broker, ready, willing secured as. agreed purchase buyer who and able
appellant’s pursuant the sell- business provisions Under the
er’s terms. agreement juris- law of
listing
diction, appellee’s right her commission time, buyer demon- at this when the
vested willing ready, able he was
strated purchase the date of settle-
effect the Timber- was defeated
ment. sale the deal at
lake’s refusal to consummate listing agree- forth in the terms set province It was the
ment. disputes the factual
resolve agreement, appel-
ambiguities proffered no basis to disturb those
lant has
findings. judgment appeal
Accordingly,
AFFIRMED. Q. WESLEY, Jr., Appellant,
John STATES, Appellee.
UNITED BOONE,
Angelo Appellant, STATES, Appellee.
UNITED 84-1704, 84-1734.
Nos. Appeals. of Columbia Court
District 7, 1987.
Argued Dec. 6, 1988.
Decided Oct.
I
light
considered
government, shows
most
favorable
that on the afternoon of November
Young, his
George Murphy, Sandra
friend,
fiancee,
Mulky,
de-
Gregory
go
grocery
during the
cided to
store
Washington
break in the
Reds-
half-time
D.C.,
Olshonsky, Washington,
Michael A.
watching
game they
kins football
were
court,
appellant Wes-
appointed by the
for
driving
Murphy
As
television.
ley.
Street, N.W.,
P
he
three of them west on
friend,
Hawkins,
another
Leonard
saw
Gardner, Public Defender Ser-
Jamie S.
standing
Mar-
under a bus shelter between
vice,
Klein and Jennifer
with whom James
Streets, N.W.,
keep
out of
ion and 7th
Service,
Defender
Wash-
Lyman,
P.
Public
got
Murphy stopped his car and
the rain.
D.C.,
brief,
appel-
ington,
were on the
a short
out to talk to Hawkins. After
Boone.
lant
conversation,
pool
men
the two
decided to
Justice,
Booth, Atty., Dept, of
Thomas E.
buy
drugs.
money
their
diGenova,
Atty.,
Joseph
whom
E.
U.S.
there,
they
standing
Murphy
While
were
filed,
the time the brief was
and Michael
pull money
pocket,
out of his
started to
Abrecht,
Mary
Asst.
W. Farrell
Ellen
display
him
but Hawkins cautioned
not to
it
D.C.,
Attys., Washington,
on the
neighborhood.
suggest-
He
openly in that
brief,
appellee.
across the vacant lot
ed that
walk
stop to an abandoned bar-
next to the bus
bershop,
count their mon-
BELSON,
where
FERREN,
Before
barbershop, which
ey
private.
This
TERRY,
Judges.
Associate
Street,
locked and boarded
faced 7th
only access into the
up
the front. The
BELSON,
Judge:
Associate
through
doorway
building was
back
convictions,
challenge
Appellants
their
long-
was no
alley. The door itself
near an
robbery,
jury,
of two counts of armed
place.
er in
22-2901,
(1981
-3202
& 1987
D.C.Code §§
proceeded to
and Hawkins
Murphy
As
arising
Supp.),
out of an incident that oc-
barbershop, Mulky got out of the car
curred in an abandoned
on 7th
Mulky went
inside
them.
and followed
Street,
Appellant Wesley
N.W.
contends
stepped
briefly, then
out-
others
with the
the trial court abused its discretion
side,
near the comer of
stayed
allowing
to cross-examine
away,
five feet
building, approximately
extensively
him
about his admitted
pro-
in order to
to the door
his back
dealings prior
Go-appellant
to the incident.
From
the two men.
protection for
vide
First,
appeal.
Boone raises three issues on
located, Mulky could see
he was
where
that the evidence was insuffi-
maintains
Murphy and
inside.
Murphy
Hawkins
doorway,
cient to establish that he aided and abetted Hawkins, standing just inside the
committing
counting
money.
Sec-
Wesley in
the offenses.
their
started
ond,
court abused
he asserts that the trial
later,
south
a car drove
minutes
A few
denying
his motions
its discretion
Street,
Street,
left on P
then turned
on 7th
jury heard
after the
mistrial and severance
Murphy’s
from
stopped not far
where
testimony suggesting his own involvement
Angelo Boone
Wesley and
car.
John
drug dealings,
generally and
both
the va-
directly across
alighted and walked
prosecu-
barbershop.
Wesley. Finally, he contends that
back door
lot to the
cant
argument and
on 6th
closing
turned north
torial misconduct
off and
The car drove
earlier, Hawkins
Twenty minutes
of his convic-
warrants reversal
Street.
rebuttal
as a
he knew
Wesley, whom
error,
had seen
Finding no
we affirm.
tions.
time,
dealer,
Boone,
through
By
he knew
sidewalk outside the house.
whom
brother, standing
gone
with some
younger
either
inside or was
back
just
on 7th
others under
shelter
Street
standing
doorway. Wesley
asked
north of the
testify
he intended to
Hawkins whether
replied
against him. Hawkins
approached
As
and Boone
yet
decided.
barbershop, they exchanged greetings with
*3
stayed to talk with
Mulky outside. Boone
The defense evidence consisted of Wes-
know,
he
Wes-
Mulky,
did not
while
whom
ley’s testimony
Wesley
on his own behalf.
ley
From
into the
his
walked
the
gone
testified that he had
barber-
door,
position just
inside the
Hawkins
Hawkins,
shop
Murphy
not to rob
and
but
standing
see
on
embank-
Boone outside
drugs
selling,
to “stash”
he was
so
away.
ment
ten feet
about
that no one
them. He admitted
would steal
barbershop, Wesley
inside
Once
the
examination that
in November
on direct
demanded,
pulled
gun
Murphy
and
by selling
he
supporting
himself
Murphy
up.”
response,
it
hol-
“Give
day
that on
inci-
narcotics and
the
the
lered,
doing?
you
“Hold it. What are
drugs
selling
he
been
on 7th
dent
Mulky
up.” Murphy’s shout aroused
Hold
stated,
objection,
He
without
Street.
Realiz-
from his conversation with Boone.
he was
to the
Boone knew
barber-
ing
provided
protection
he had
the
shop
drugs. Wesley
his
hide
claimed
intended,
go
he
turned to
inside
Mulky
barbershop,
that when he walked into the
Wesley holding
barbershop, but saw
$2,000
person drugs and
cash
he had on his
gun
Immediately, Mulky
Murphy.
He
he
drug
from
sales.
asserted that as
Murphy’s
get
car to
started back toward
entered,
him,
gun on
Murphy drew a
which
help, leaving
standing
five feet
He
discharged
pushed
away.
he
it
from
door.
fled,
drugs
possession
of his
then
still
money
Murphy
unaware that
and
barbershop, Murphy, reluctant
Inside the
been shot.
give up
money,
his
let a
fall to
$20 bill
Murphy
over
ground.
leaned
As
testify or introduce
Boone did not
Then,
pick
up,
after
Wesley
it
kicked him.
other evidence.
Wesley
had,
handed
he
Murphy
$68
Wesley
Murphy
groin
shot
at close
II
Next,
Haw-
range.
Wesley put
gun
money.
argues
Wesley
demanded his
the trial
kins’ stomach and
hesitation,
ques
gave Wesley
allowing
Hawkins
Without
erred
holding.
drug
extensively
he was
deal
him
about
$63
tion
Wesley
direct
ings.
had testified on
After
During
robbery
Murphy,
that he was a
dealer
examination
stayed near
door of the
he
the incident
had been
day
on the
shooting.
He
moved to
until after
then
engaged,
prosecutor cross-examined
so
away,
position
alley
in an
about 40 feet
drugs
concerning
he had
types
him
to come out of
where he waited
places where
day;
the times and
sold that
building.
Wesley emerged,
When
them;
prices he had
selling
he had been
standing.
ran
to where Boone
sources; and his sales
asking; his
been
alley, then
together
fled
down the
two men
including
of the barber
techniques,
his use
north on Marion Street.
turned
hide
shop from time to time
day,
to Boone’s
Hawkins went
Later
bring
“runners” to
employment
ask him about
house to
in customers.
Wesley dur-
having
denied
object most
Wesley’s
counsel failed
knowing
Wes-
denied
were asked.
questions
walked
ley’s
As Hawkins
whereabouts.
Once,
specific questions
objecting to
after
however,
calling
away,
he heard
sources,
object-
his counsel
Haw-
about
direction of Boone’s house.
from the
testimony,” appar-
line of
“this whole
Wesley on the
ed to
returned
talk
kins
referring
concerning Wesley suggests,
prose-
that the
ently
questions
to the
objec-
questioning
sources. The court overruled
too
Al-
cutor’s
extensive.
tion, although
spe-
it sustained some of the
ar-
though
questions
covered several
concerning
objections
cific
his sources’
eas,
tes-
they all related to
broad
physical descriptions.
After
names
addition,
timony on direct examination.
Wesley had testified
his use of the
questions
intended to discredit
were
barbershop to stash his
his counsel Wesley’s testimony by showing that his
again
general objection
voiced
poor
day
sales
in fact so
inquiry,”
line of
did not move to
“whole
Murphy
that he had decided to rob
strike,
stating
only that
supplement
Hawkins to
his income.
sought
to the facts sur-
was irrelevant
questions
were the
confined
rounding
elicited sole-
the incident and was
scope Wesley’s
testimony,
direct
ly
“Mr.
has admitted he is
because
government’s
relevant to the
the-
also were
responded
The court
dealer.”
ory,
expressed
closing argu-
in its
which
*4
questions
Wesley’s
defense
went
grounds
Accordingly,
ments.
we find no
barbershop
that he used the
to stash his
reverse
convictions.
a fact
counsel
brought out on direct.
Ill
defendant who takes the stand
“[A]
We next turn to Boone’s claim
privi
his
cannot
claim the
own behalf
then
against him was insufficient
the evidence
lege against cross-examination on matters
judgment
for conviction. Boone moved for
reasonably
subject
matter of
related to
govern
acquittal at
the close of the
of
his direct examination.” McGautha v. Cal
again
at the con
ment’s case-in-chief
183, 215,
1454,
ifornia,
402
91
S.Ct.
clusion of all the evidence. Because
1471,
(1971). Thus,
abettor). Finally, there is circumstantial IV from which a could conclude that for a Boone moved mistrial. Twice guilty knowledge of the crime. court denied both motions. that, reasonably infer from One first motion was made after Hawkins he ten where continued stand feet acquaintance testified Boone, Mulky, away, like aware that Hawkins, Boone. who admitted he sold taking place because of and used stated that when he would through he what could see himself Boone, they exchange greet meet door, inside, open Mulky’s the shouts “ ‘Hi,’ ings ‘Bye,’ such ‘Who depart action to the door and then ” counsel reefer.’ moved ing quickly. Mulky, Unlike mistrial, arguing that Hawkins’ testimo Boone did not withdraw or disassociate connecting im- ny activity himself when the criminal was initiated. permissibly prejudicial to Boone. The trial Settles, supra, A.2d Cf at 358- . motion, concluding court denied the (finding Whitley Settles’ codefendant lia nothing statement amounted he ble because remark mari than casual about who had nothing himself from to disassociate juana between an admitted dealer activity, in criminal contrast to the defend acquaintance. Instead, Bailey). ant Boone first re motion entrance, second followed mained at the then moved off a codefendant on cross-examination and waited short distance until ran get Boone would building, finally from the fled Wesley, thereby indicating tacitly “here on the after- sale for him and there” *6 approved robbery paid the and was connected to crime. then was noon of the later drugs His false denial that he was with proceeds share or with some a of the Wesley Wesley vicinity or that was questions After on this for himself. six also, inferably shows house con answered without topic asked and were See v. United guilt. Clark sciousness of approached objection, counsel States, 1059, (D.C.1980). 418 A.2d 1061 a her motion for the bench and renewed This in circumstantial evidence of Boone’s response, ex- In severance. necessarily by Wesley’s tent is not refuted elicited to plained the evidence was that to that he and Boone went relationship between partnership show a illegal drugs, to stash rather concert, Boone, working in Wesley engage than to The armed ar- the Drew exceptions.1 She well within reasonably jury could infer that Boone un probative value the evi- gued that Wesley in the criminal dertook assist trial outweighed prejudice. The dence its activity just away feet that unfolded ten although the evidence that judge concluded through Wesley passed from him after prejudicial as not so prejudicial, was was doorway. judge ad- require The trial a mistrial. question prosecutor not to monished foregoing, judge prop- the trial Given drug deal- Boone’s further judgment erly denied Boone’s motion counsel, request Boone’s ings. At the acquittal. presented evidence give cautionary instruction overwhelming, did although not government, not identity. plan, v. Drew or or common scheme admissible 1. Evidence of "other crimes" not 11, 16, States, disposition, App. F.2d but D.C. 331 show a defendant’s criminal 118 to is admissible when relevant to and motive, intent, United probative 85, (1964). 90 accident, or absence of mistake 1028 time, give limiting determining instruction Boone’s intent whether was charge very end of at the Downing see Wesley’s plans, to further jury (D.C. United A.2d questions [given that those and answers 1981) J., (Ferren, concurring), a material by Wesley during Mr. his cross-examina- issue in the case because was drugs] tion which related to the sale of charged theory on a by you only are to be considered the evidence was sufficient respect Mr. Wesley, and not with re- ly probative to admissible have been as a spect con- to Mr. Boone. You must not exception, probative Drew long as the questions sider those and answers outweighed its preju ness of the evidence your respect deliberations with Mr. dice. Boone. Although judge may have de- appeal, argues that the trial On nied admission on that the basis by failing
judge abused discretion it is prejudicial, statements were too clear his case from and to sever declare light as a whole evidence to him. not a mistrial as He contends reasonably statements these have evidence sales for of his highly irrele- prejudicial unduly prejudicial was deemed vant, limiting instruction but also Boone. All of for both the witnesses dispel insufficient the harm caused defense, police prosecution and save government by Wesley’s testimony. The officers, testified to their use of assort- at trial evidence contended illegal drugs. ment of Hawkins Wes- working Boone had been ley further went and testified about their drugs selling their associa- relevant to jury illegal drugs. distribution and, at the time of the there- tion neighborhood repeatedly told that this fore, to Boone’s intent. Such fact, prime drugs. market as a Drew exception be admissible seeking to buy witnesses were probative outweighed preju- its value its robbed. this Bigelow United dice. A.2d context, danger there was little Jones v. United (D.C.1985); find swayed would have been (D.C.1984); A.2d alleged merely guilty because he was States, Willcker engaged transactions. have (D.C.1979). Although judge the trial effec- through limiting tively ruled instruction Furthermore, testimony did re admitted, the evidence anything could not have sur veal court can consider its relevance in assess- to which mised from other evidence argument that a mistrial was object. jurors, aware did not *7 required. day Boone was seen occasions that three testimony are satisfied that We Wesley, had who testified with day assisting him that that Boone day selling drugs and that Boone spent the in sales tended to establish that accompanying barbershop him to the between two men at the association readily have in his to stash barbershop was more than casual statements, ferred, disputed without presence at the with Boone’s assisting Wesley in that Boone testimony This Wesley was not fortuitous. impact dealing. principal explain significance helped of Boone’s activities adduced the evidence examination, testimony on direct earlier not on cross-examination from objection, given knew without cooperating with that Boone was to show bar- Wesley was the abandoned to dealing jury in al narcotics —the had this bershop drugs. to stash ample reason to conclude ready had working knowledge because he was closely how rather to show was —but work- The fact had been in the associated Boone and ing in concert could have been considered denied, 1030, 104 cert. robbery.2 Accordingly, (D.C.1983), hours before the (1984). judge trial have The would not abused L.Ed.2d 694 if he had the evi here not rise to that discretion concluded that situation level. States, supra, Downing probative See prejudicial, dence was than (cautionary and therefore had allowed the con A.2d 409 instruction was suffi Drews.3 exception dispel any prejudice may sider as cient have important linking ap closeness of this issue has an resulted from remark witness’ bearing crimes). Here, pellant re whether a mistrial was to other trial cautiously, quired. judge, proceeding very made full use of alternative measures to alleviate end, In the must we decide whether might occurred. prejudice that have judge in de- trial abused his discretion clining order a all mistrial under V presented circumstances to him. Finally, seeks reversal for several judge record discloses that alleged prosecutorial instances miscon acutely potential prejudice aware during closing arguments duct and rebut question, to Boone from the evidence in Only tal. one of them merits discussion. cognizant of for a mis- and was the need object Because Boone failed to the oth prejudice trial and severance the level of trial, we ers have reviewed them under great. particular became too This sever- Lyons standard, see plain error Unit ance was made after defense coun- motion (D.C.1986); ed 514 A.2d ask, permitted government sel with- Watts v. United 362 A.2d contemporaneous objection, ques- out six (en banc), (D.C.1976) clearly do which upon in tions that bore Boone’s role Wes- meet, and we will not discuss them. selling drugs. ley’s judge, The trial argument An that Boone made in the discussing thoroughly after the matter appeal and renews on is that an trial court counsel, questions by cut off further analogy prosecutor drew between area, disputed in the de- participation requests ferred to Boone’s counsel’s re- backup quarterback Holley, a former Bob (not garding limiting giving a instruction Washington Redskins football time, including one at the one in his team, and abet- misstated the law instruction), and limited the ting suggested not in evidence. facts government’s closing argument re- stated: gard, excluding reference even tes- timony Holley? He was objected. you to which Do remember Bob quarterback for the Redskins judge backup We conclude that the trial did not ago. couple years The Redskins went handling abuse his discretion the matter year. you And way Super he did. Bowl that as This court will reverse a know, Super won that “only denial of a mistrial the Redskins extreme situa- Holley on the bench threatening miscarriage justice.” Bob sat tions Bowl. single, play He didn’t Beale United entire time. states, stating that we are suggest, is incorrect We The dissent 2. do the dissent 3. inevitably holding judge necessarily "Boone was tarnished the admissi- abused the trial dealing ble that went on declining permit the his discretion consider, neighborhood, if he not shown even guilt, Wesley's respect to Boone’s *8 (footnote omitted), part to have been of it” regarding of and Boone’s his sale answers (Dissent 1033.) by "guilt of sort Instead, association.” 1033.) (Dissent at We hold sales. role in those evidence, admitted without we refer to judge would have acted the trial instead that objection, established close asso- which the had he ruled other within his discretion day drug-dealing ciation with the Wes- on prejudice way, of entailed that the amount and ley, actors, the the use or transactions all jury exposure of the to the in the officers, police testified other than who require court to question such the was not as and, well, day’s as role about their in the events mistrial. declare a neighborhood immediately of the the character surrounding the abandoned solitary game. day, ready, willing, down for that Joe Theis- and he was and able played every single day [sic], robbery, is assist in that and that what man[n] something happened Theisman[n], job you go his to the was. When back room, forget ring Holley waiting, jury He was and don’t his there. about sitting go he could in. Just on that also.
bench, being ready was he what object para- final Boone did these doing day. Later, graphs argument. of the rebuttal point, objected during charge jury, the general At this the to the the misstating aiding prosecutor jury the The instructed the on and law. court argument certainly abetting, specific about court observed that the with a instruction presence or not it the the scene intent: was not whether and prosecutor continued: law. by the of an Some conduct defendant does, of a Everything just sitting he there on affirmative character furtherance sidelines, design is assisting purpose common criminal or is team be- necessary. physical by presence cause is a member the team. Mere assisting place Everything he does is defendant at time and by just sitting is not team. Even if it is on the commission offense guilt. itself sufficient to establish sidelines— However, presence enough if is mere is objection. The court renewed primary and does actor. intended to aid a explained that it would instruct aiding abetting jurors begun later. After the their deliber- it on law of and ations, on aid- prosecutor on: asked reinstruction went abetting. repeated and team, Every of that and member ladies given during instruction gentlemen, Super rings, got their Bowl charge, including pres- instruction right. just people all who It wasn’t later, Twenty ence intent. minutes and It played. just stringers. the first wasn’t its verdict. returned team, It was the because it was a whole effort, just like It is a combined here. analogy argues football It combined effort. is combined effort aiding the law on and misstated Mr. Boone and Mr. He between presence his mere outside implying that Judge playing part. Alp- And as barbershop was sufficient to convict said, attorney] rin has [Boone’s or him intent assist without said, aiding there law of and is the abet- his conduct in furtherance evidence of ting, you and he instruct will the law ignores the fact that aiding abetting. and analogy, her developing principal There is a actor and a second “assisting” the Holley was stressed that abetting. “waiting actor law member and was “team” as a [to] every- And the actor doesn’t do second “combined ef go emphasized the in.” She thing principal He does. does team, com which she fort” of the Redskins point gun carry gun have to pared effort between something money. He does and take the statement Wesley, finished with the He in the furtherance of crime. “ready, willing, able to that Boone was something principal. does to assist robbery.” analogy, assist in that included completely parallel, Now, although not question, there no ladies and aiding and abet enough of the elements gentlemen, what Mr. did. about See United misleading. ting being to avoid question is no he did. There about what (5th Killian, 541 F.2d States v. ring for Super Bowl He deserves his Cir.1976) (“An analogy prose used day, just he did like Theis- what Joe argument parallel closing need not But, cutor in gentlemen, did. ladies man[n] detail”); minute room, charged every crime you go your jury back to Sawyer, 143 U.S. States see also United forget for- don’t Mr. Boone. Don’t *9 (1971) 299, 712, 443 F.2d App.D.C. that get that he also on team (“if drug applicable principles undisputed day, Boone made sales are same might ... then a statement counsel well there” for and had been “here and confusing”). than In ad- helpful be rather paid quarter or “a of either five dollars dition, judge twice instructed dope” point, each sale. At that counsel for presence that than mere re- motion for for Boone renewed an earlier quired, just before once the verdict was severance,1 argu- mistrial and asked for a The instructions clear delivered. were drug “other crimes” evidence that enough dispel any convic- notion that a admissible transactions would not be tion could be satis- and, separate in a trial against Boone presence. fied mere therefore, that the should not contends, Finally, first for the linking Boone be allowed to benefit from appeal, time the reference to the drug dealing. As the trial court Super rings suggested he had Bowl indicated, drug dealing case robbery, a proceeds shared in the “opened against Wesley because he had it fact We not decide not evidence. need But, up in his direct examination.” particular the lateness of this ob whether so, accordingly had not done the court jection application plain calls for that, sep- agreed in a counsel standard, prosecu for a error review of the Boone, ques- prosecutor’s arate trial of rings tor’s makes statements drug tions about Boone’s sales recogni referring clear she was irrelevant and thus inad- would have been Holley’s participation helping tion course, (assuming, missible win, team not benefits that way). “opened the door” in some degree analogy To the receive. specifically, court said to the More however, ambiguous, decline we prosecutor: imply prosecutor infer that the intended charge inside proceeds. that Boone had shared in the If the were a sale See Arnold v. United barbershop, you contending (D.C.1986) (citing Donnelly v. DeChris Boone aided and abetted toforo, L.Ed. 416 U.S. right. sale, absolutely you would be sum, (1974)). then, 2d 431 are satis we But, case is about. that is what this prosecutor fied mis engaged that the in no armed This case about an closing argument. in her conduct found this other The trial court foregoing, view of the convictions also, as the crimes evidence irrelevant appellants are both 1028, de- ante acknowledges, majority AFFIRMED. prejudicial. clared it sense, Mr. is between a In a FERREN, Judge, Associate place point in hard at this rock and a concurring part dissenting assume, putting that, is not I that he part: So, say that. on. Let’s witnesses join voting I to affirm convic- in chief case has rested its Government tions, I to Boone. but would reverse as him, co-defendant and then the against testify that Mr. joint in a decides to examination, Wesley On direct acknowl- wanted, sev- has moved never edged and had that he was dealer actually before me in this trial eral times selling drugs day on the of the rob- out, because And now comes sever. During Wesley’s cross-examina- beries. fact, events, I is the tion, that, series on the of this elicited give declined also reference. requested 1. Counsel had moved a mistrial allega- witness, Hawkins, no "there was instruction that complaining testified “Ford," my meaning ever involved client was tion that had had "conversations” with Boone, " sede, “Hi,’ any drugs.” The court told saying “Bye/ purchase, “Who no more than ” “a this was rather prosecutor, had said It was unclear who some reefer.’ “ought be care- dangerous area” and that she on the The court denied the motion what. ground only a casual ful.” that the *10 1032 States, 727, (D.C.), cert. de going if to A.2d
don’t know are believe it 486 729 nied, 852, 151, not, or is the out L.Ed. fact was 474 U.S. 106 S.Ct. 88 States, (1985); Toliver v. United doing things illegally there other 2d that 125 him, 958, v. day. (D.C.1983); 468 Green help That can’t it seems to me. A.2d 960 States, So, 1005, (D.C. United got preju- hurt it is A.2d It to him. 440 1007 1982). inapplica exception plainly dicial. That drug ble all the transactions because court, however, The trial “denied” the except, to a perhaps, issue the reference mistrial, motion “reserved” mo- supra 2, barbershop, stash at note severance, tion “instruct[ed] explain necessary were not the "circum pursue through prosecutor not to the cur- immediately surrounding stances the of witness, Wesley, questions Mr. rent con- Robinson, charged.” 486 A.2d at fense[s] cerning selling, drug any, Mr. Boone’s (emphasis original). govern 729 day.” The court offered Boone a also only argument, ment’s substantial there instruction, limiting which counsel declined fore, is harmless error and thus no abuse highlighting of a concern because prejudice of discretion: Boone was (Later, changed counsel the issue further. reversal, given insufficient warrant limiting her mind and asked for a instruc- impli relatively testimony small amount of tion at the time of the court’s sales, cating coupled Boone charge jury.) Finally, court to the limiting instruction at the end court’s prosecutor, closing ar- stressed that (Boone general charge gument jury, not mention instruction). limiting had waived an earlier Boone’s indeed not involvement with knew testimony even that “Boone agree I government. with the cannot going put I the stash barber- against of the case Given closeness shop.” emphasized The court then (the Boone on prosecutor: I am “You understand that the case “borderline” court called ruling making I would not be close”), I “very the inadmissible believe making being these tried if ... cases were prej sufficiently other crimes evidence course, meant, of separately.” The court to mandate a severance and thus udicial against protect irrele- had to See, e.g., Jones as to Boone. mistrial prejudicial other crimes evidence vant States, 750, (D.C. United A.2d 754 385 might against otherwise admissible be 1978) (murder reversed because conviction Wesley.2 use narcotics inadmissible homicide). government government unrelated Interestingly, its brief jury that trying convince the clearly was argue does not “other crimes” armed aided and abetted the against un- Boone had evidence was admissible his close association in Drew v. because of United exception robberies der found States, after 11, Wesley as a dealer on the U.S.App.D.C. 331 85 with 118 F.2d barbershop. The they went to the (1964). admissibility the noon theory argued Wesley’s and prosecutor a one-sentence advances —in “mo transactions established “surrounding Boone’s footnote —is the circumstanc- tive, there that area.”3 ... intent to be found in Robinson United exception es” learned, most, that protecting would have 2. The trial court also was against barbershop" testimony gone along bar- "stash in Boone, apparently, knowing Wesley admissible as to bershop to "stash” and, argu object there, because counsel had failed to ably, was a Boone himself not that narcotics helped explain die because drug dealer. immediately surrounding circumstances See Robi robberies and assault. argued specifically, 3. More 727, (D.C.), nsonv. A.2d 729 United against motion a mistrial denied, cert. 474 U.S. severance: (1985); Toliver v. United L.Ed.2d 125 able that we should be would seem to me It (D.C. 1983); A.2d Green with Wes- pursue the fact that 1982). (D.C. If that working in concert ley.... That admitted, testimony alone had been *11 agreed swayed court Boone s have been the tainted evidence The trial coun- however, sel, that announced motive the guilty. find not appellant to put for into the —to event, any majority wrong on the is drugs imply or there —did not motive intent analysis: of the Drew merits an intent the supply not to rob and therefore did basis ante at Wesley’s plans,” “to further drugs. under Drew for In- about evidence vague begs ques- that it the obviously is so deed, apparently the now effect, has to be majority tion. Drew exception applies, no for agrees that drug intent to further deal- argument appeal. saying on that an it has abandoned that circumstances, intent, ing was an under the Nonetheless, my in colleagues major- engage in As the armed (1) ity conclude the “other crimes” evidence court, government, rec- have been admissible under and now the have would “intent,” (2) Drew exception ognized, not analysis that will probative preju- than evidence more absolutely evidentiary work. no There was essentially many because so witness- dicial predicate linking Boone’s occasional es adverted to use that Boone was robberies; only sales with the there was (and implicated inevitably properly) thus in fortuitously con- appellants’ evidence of activity neighborhood. I such illicit of the fronting complainants place where they wrong respects. are in both believe to stash narcotics. had decided First, relying admissibility Second, does prejudice, majority as to evidence, my colleagues “other crimes” say, government argues, not that as the necessarily holding are that the trial court prejudice is insufficient for reversal ruling erred in that evidence inadmissi- holding assuming ble —a fail articulate other crimes evidence was event, and, any holding simply will improperly jury. only basis before the Despite acknowledging not “write.” colleagues my find the evidence on which ruling trial court’s evidence was probative prejudicial astonish- than is prejudicial” admissibility, “too the ma- effect, ing. They say, in Boone inevi- suggests jority that the trial “could tably by the admissible testi- was tarnished ante otherwise, have” ruled dealing mony went on about jury readily “could event neighborhood, if even he was inferred, disputed have without state- part it.4 That been a shown have ments, Wesley in that Boone had assisted guilt irrelevant kind of association is Ante at 1028. drug dealing.” I do not here, to least. place say no court, given how understand our stan- crimes The fact that other evidence review, ignore dard can what the trial no worse than others judge make Boone look heard —who watched witness demeanor—did say such evi- neighborhood does mean impact of the “other crimes” him look than make no worse dence would ruling then base this court’s what evidence. he would without readily “could have inferred” respectfully Accordingly, I dissent the tainted evidence had not been there. I and remand for reverse Boone. would is, there, prejudicial The fact evidence was its the trial court abused new trial because majority willing to and the is not base re- failing grant Boone’s discretion in legitimate ground affirmance on the quested severance. available: that no reasonable me, highly probative being It is afternoon. seem to It would because they go argu- barbershop, then ment, and our of that afternoon. association their course, continue work unchallenged unchallengeable ref- or concert. And that it deals with the fact two 4. me, But, prejudicial. it seems is somewhat erences Boone’s connection probative supra those are facts. And value implicate meaningfully him. See outweighs preju- of that association far notes 1 and 2. highly probative Boone’s dice. It is motive