Hunter v. United States

980 A.2d 1158, 2009 D.C. App. LEXIS 459, 2009 WL 2957797

Opinions

KRAMER, Associate Judge:

Appellant Darryl Hunter was charged by indictment with eight counts stemming from a shooting following a dispute with his estranged wife and his subsequent assaults of her mother and sister.¹ Hunter was acquitted of assault with a deadly weapon (ADW), carrying a pistol without a license (CPWL), and one count of simple assault, but was convicted of possession of an unregistered firearm (UF), unlawful possession of ammunition (UA), two counts of threatening to injure a person (felony threats), and one count of simple assault. Hunter appeals all of his convictions except the one count of simple assault. Specifically, Hunter argues that the trial court erred in excluding evidence of a third party’s convictions for armed drug trafficking- — evidence Hunter characterizes as “revers e-Drew or Winfield evidence” — and that the felony threat counts merge into one offense under the Double Jeopardy Clause. We affirm.

I. Factual Background

The events of October 6, 2004, accounted for four of the charges brought against Hunter — ADW, CPWL, UF, and UA. As noted above, Hunter was acquitted of the ADW and CPWL charges, but convicted of the UF and UA charges.

The government’s evidence with respect to October 6, 2004, came in primarily through LaTonya Parker, Hunter’s sister-in-law. LaTonya testified that on October 6 she was driving her minivan with her toddler and her sister Lynette as passengers when she saw Hunter, Lynette’s estranged husband, with his new girlfriend, Juanitra Cashwell, in Ms. Cashwell’s car. Lynette directed LaTonya to drive up next to Cashwell’s car and Lynette and Hunter got out of their respective vehicles and talked in the middle of the street. Lynette asked him for the remote control to the apartment complex where they had lived and the keys to the apartment they shared. Hunter gave her the remote control, but kept the keys. Hunter and Cash-well then drove away, as did LaTonya and Lynette. Shortly thereafter, however, Cashwell pulled over and Lynette told La-Tonya that she thought Hunter had something to say, so LaTonya pulled over also and double-parked beside Cashwell. Hunter jumped out of Cashwell’s car, walked into the middle of the street, lifted up his shirt to display a handgun in his waistband, then walked behind the van that LaTonya was driving, pointed the gun and fired one shot. LaTonya was able to see that the weapon was “silver and black.” She testified to seeing smoke come out of the barrel when Hunter raised the gun and fired at the back of the van, but the van was not hit.

The sisters immediately went home and told their mother, Annie Mae Parker, what had happened. Their mother called 911. When the police responded, both sisters reported the events to them. The police found no damage to the van, however, nor could they locate a spent cartridge at the scene of the shooting, but as Officer Meyers testified, an “expended shell would only be approximately ... a half inch or just more than a half inch long,” and the area where the police were searching was illuminated solely by street lights.

One week after the October 6 incident, Hunter went to retrieve his belongings from the apartment he shared with Lynette only to find that the locks had been changed. Hunter then went to Annie Mae Parker’s home and began pounding on the door. Annie Mae let him in, and he began “screaming and hollering obscenities.” LaTonya Parker testified that Hunter shouted, “I will bust you in your face. I will blow your f* *king head off,” toward Annie Mae. Annie Mae testified that she believed Hunter was going to hit her. Hunter then began arguing with LaTonya. He struck her in the face and began to leave the premises. Annie Mae testified that he said, “I’m going home get my sh*t, and when I come back, I’m blowing somebody away.” LaTonya testified that he said, “I’m going to kill all of you mother f* *kers.” On cross-examination, LaTonya testified that he “threatened to kill me, my mother, and my children.”

Lynette, however, recanted at trial what she had told the police on October 6, as well as her grand jury testimony, both of which had corresponded with LaTonya’s version, and testified that because she was angry to see Hunter with Cashwell, she had made up the entire shooting incident. She also testified that she had known there was a silver and black gun in Cash-well’s apartment because Cashwell had shown it to her at a time preceding the events of October 6, and that had provided the basis for the description of the gun that she gave to the police.

Cashwell, who was also called as a witness by the government, testified that Hunter had kept his belongings in her hall closet (as well as in her living room). The government showed her a picture of a gun that had been found in a makeup case in that closet during a search warrant executed at her apartment. She testified that Hunter had been in her apartment earlier on the day the police executed the warrant. On cross-examination, the defense brought out that Willie Mouling, Cash-well’s former boyfriend, had been living in her apartment until he was arrested and incarcerated in March 2004 (about eight months before the events at issue here), and that his belongings had been left there in the same closet. The gun that was recovered was a black and silver semiautomatic .9 mm caliber pistol.

The defense attempted to introduce Mouling’s unrelated convictions for drug trafficking while armed and possession of a weapon by a felon apparently so that the jury might infer from these convictions that Hunter was not guilty of the charges arising from the events of October 6. Specifically, Hunter sought to introduce evidence to suggest that the gun found by the police in a makeup case during the execution of a search warrant at Cashwell’s apartment on October 21 belonged to Mouling, not to him.

The trial court first indicated that the defense could be raised if it could be proven “competently,” but not merely through cross-examination or putting on evidence of Mouling’s convictions for drug trafficking while armed and possession of a handgun by a felon. The court’s concern was that the evidence would be “back-door character testimony about someone else’s propensity for violence,” but the court indicated that direct evidence from a witness who had seen Mouling with the weapon would be permissible. Indeed, Hunter’s counsel attempted to elicit such testimony from Ms. Cashwell, but her description of the gun in the closet differed from that provided to the police by LaTonya and Lynette. Specifically, Cashwell testified that the gun she had seen in her apartment was “smokey — like gray or a dark color,” not silver — -substantially undermining the defense effort to establish that the gun used by Hunter on October 6 was Mouling’s, not his. In the end, the trial court ruled that simply putting on evidence of the existence of Mouling’s convictions would have no real probative value, especially since the gun Mouling had been convicted of possessing in connection with the drug trafficking charge had been recovered and seized, and thus would not have been available for LaTonya to identify in court.²

II. The Threats Convictions

Hunter contends that his two felony threat convictions should merge because they are based on the same conduct, namely one threat to two individuals. The Double Jeopardy Clause of the Fifth Amendment prohibits “multiple punishments for the same offense.” Lennon v. United States, 736 A.2d 208, 209 (D.C.1999) (citation omitted). Hunter contends that the government tried his case on the theory that he committed two counts of felony threats when he uttered a single threat directed collectively at Annie Mae Parker and her daughter, LaTonya. We review claims of violation of the Double Jeopardy Clause and the merger of convictions de novo, Joiner-Die v. United States, 899 A.2d 762, 766 (D.C.2006), employing a “fact-based” analysis to determine whether two violations of the same statute merge. Ellison v. United States, 919 A.2d 612, 615 (D.C.2007). If there was only one threat, the two convictions should merge, but “[t]he Fifth Amendment does not prohibit separate and cumulative punishment for separate criminal acts.” Owens v. United States, 497 A.2d 1086, 1094-95 (D.C.1985), cert. denied, 474 U.S. 1085, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986).

Hunter argues that the government presented evidence of only one threat addressed to two individuals, and that the conduct described by Annie Mae and La-Tonya Parker amount to the same conduct. He argues that we should follow our holding in Smith v. United States, 295 A.2d 60 (D.C.1972). In Smith, the defendant threatened two men, a father and son, who pursued him after catching him breaking into the father’s car. Smith patted his pocket and told the men he had a gun. They broke off their pursuit, fearing for their safety. Id. We vacated one of Smith’s threat convictions, holding that there was only one threat, and that “[t]he statute evidences no clear intent to transform this one act into as many offenses as there [were] individuals threatened.” Id. at 61. We decline to follow Smith in this instance, as Hunter’s conduct represents two distinct threats to two individuals.

We are guided in our decision by our holding in Joiner v. United States, 585 A.2d 176 (D.C.1991). In Joiner, the appellant threatened two men who had identified him in a police lineup a few days earlier. He “pointed to each man, first touching [the first victim’s] nose and then striking [the other victim] above the eye, while uttering ‘I will remember this,’ ‘I will get you for this’ and ‘[I don’t] forget faces.’ ” Id. at 178. We reasoned that it was “clear from these facts that appellant distinctly singled out and focused on each of the two victims while uttering words and physically touching them, one after the other.” Id. at 179. We concluded, on that basis, that Joiner committed two separate offenses under the felony threats statute.

As was the case in Joiner, Hunter issued two distinct threats to two different victims. A defendant is guilty of threats if he utters words to another person, those words were of such a nature as to convey fear of serious bodily harm to the ordinary hearer, and the defendant intended to utter the words as a threat. Jenkins v. United States, 902 A.2d 79, 86 (D.C.2006). Here, Hunter uttered one threat directed to Annie Mae Parker when he told her, “I will bust you in your face. I will blow your f* *king head off.” He uttered a new, distinct threat when he directed his attention to LaTonya, striking her and uttering a second threat, directed to both victims collectively, as he left the premises. Since these threats took place sequentially, as opposed to being one act directed at an undifferentiated group of victims, the convictions do not merge.

III. Exclusion of Mouling’s Convictions

Hunter also asserts on appeal that the trial court erred by not admitting evidence of Mouling’s prior convictions for drug trafficking while armed and possession of a Ruger P90 pistol in March 2004 because “the defense theory was that the loaded Ruger P89 found in Ms. Cashwell’s hallway closet [during the execution of the search warrant for Cashwell’s apartment] belonged to Mr. Mouling,” and those convictions would help “demonstrate that Mr. Mouling had a reason to possess the [recovered P89] gun and a preference for Rugers.” He characterizes this as “reverse-Dreiv evidence.” In Bruce v. United States, 820 A.2d 540, 543 (D.C.2003), we explained that “[r]everse Drew evidence is ‘evidence of a recent, similar crime with a distinct modus operandi — which the defendant could be shown not to have committed’ and is ‘admissible as tending to prove that someone other than the defendant committed the crime charged.’ ” Id. at 543 (quoting Newman v. United States, 705 A.2d 246, 253 (D.C.1997)). Bruce contrasted revers e-Drew evidence with Win-field evidence, see Winfield v. United States, 676 A.2d 1 (D.C.1996) (en banc) (Winfield II), which “while similar, ‘tends to show that someone other than the defendant was the real culprit.... Winfield evidence may, but does not necessarily, reflect that someone other than the defendant had committed another crime like the one before the court.’ ” Bruce, supra, 820 A.2d at 543 (quoting Neuman, supra, 705 A.2d at 254). Admissibility under Win-field requires that there be “proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” Winfield, supra, 676 A.2d at 4. Since the evidence Hunter sought to introduce does not indicate any possibility that someone else committed the charged offense, that is, possession of an unregistered firearm and unlawful possession of ammunition on October 6, it was neither Winfield nor revers e-Drew evidence, and Hunter’s argument to the contrary must fail.

Contrary to the trial court’s findings, however, the evidence did have probative value; therefore, the trial court erred in denying the convictions’ admission on the ground that they had none. A trial court’s decision to admit or exclude evidence is reviewed only for abuse of discretion. Goines v. United States, 905 A.2d 795, 799 (D.C.2006); Mercer v. United States, 724 A.2d 1176, 1182 (D.C.1999). However, “the exercise of that discretion must ‘be founded upon correct legal principles.’ It is an abuse of discretion if the trial [court] rests [its] ‘conclusions on incorrect legal standards.’ ” Bell v. United States, 801 A.2d 117, 125 (D.C.2002) (citations omitted). “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence.” Foreman v. United States, 792 A.2d 1043, 1049 (D.C.2002) (emphasis added). “The ‘any tendency’ threshold of relevance is relatively easy to surmount; evidence certainly need not be unambiguous to have some probative value.” Comford v. United States, 947 A.2d 1181, 1187 (D.C.2008). Nonetheless, the admissibility of evidence is subject to the general rule that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Jones v. United States, 739 A.2d 348, 351 (D.C.1999).

Here, Hunter sought to introduce Moul-ing’s convictions as evidence that Mouling was a drug dealer who had a motive to have an additional gun hidden in the apartment where he had formerly lived. In light of the government’s emphasis, in its opening and closing arguments, that the P89 Ruger found in the closet bolstered LaTonya’s testimony about the ADW on October 6 because it supported an inference that Hunter had ready access to a gun, Mouling’s convictions for drug trafficking while armed with a P90 Ruger were relevant under the “any tendency” standard because they had at least some tendency, albeit slight, to prove that Hunter did not know about the gun or have ready access to it (presumably because Mouling had secretly hidden it there without Hunter’s realizing it, even though Hunter had also stored some of his belongings in the closet where the gun was found). Therefore, the trial court erred in finding that the convictions had no relevance.

Nonetheless, we hold that this error was harmless.³ Because the error complained of was preserved, to affirm the court must be able to conclude “with fair assurance, after pondering all that happened without stripping the erroneous actions from the whole, that the judgment was not substantially swayed by the error.” Rorie v. United States, 882 A.2d 763, 776 (D.C.2005) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We conclude that the judgment was not substantially swayed by the error in this case because (1) Hunter’s threat that he would “blow [Annie Mae’s] f* *king head off’ was strong evidence that he had access to a gun; (2) the fact that Mouling’s P90 Ruger had been recovered by police lessens the force of the argument that the P89 Ruger was also Mouling’s; (3) the fact that Cashwell had shown the closeted gun to Lynnette suggests that she might have shown it to Hunter also; (4) the court would have allowed testimony from someone who had seen Mouling with the P89 found in the closet; (5) the jury was never instructed on constructive possession, making it unlikely that the jury convicted Hunter based solely on the gun found in the closet; and (6) the trial court was justified in trying to prevent jury confusion by keeping out evidence of limited probative value. See Jones, supra, 739 A.2d at 351 (holding that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”). Moreover, ownership of the gun was not a dispositive fact; access to the gun was. Therefore, although the trial court erred in holding that Mouling’s convictions were irrelevant, that error was harmless, and we affirm Hunter’s convictions for UF, UA, and felony threats.⁴

For the foregoing reasons, the appellant’s convictions are

Affirmed,⁵

Opinion for the court by Associate Judge KRAMER.

1 . The charges were assault with a dangerous weapon, in violation of D.C.Code § 22-402; carrying a pistol without a license, in violation of D.C.Code § 22-4504(a); possession of an unregistered firearm, in violation of D.C.Code § 7-2502.01; unlawful possession of ammunition, in violation of D.C.Code § 7-2506.01; two counts of assault, in violation of D.C.Code § 22-404; and two counts of threatening to injure a person (felony threats), in violation of D.C.Code § 22-1810 (2001).

2 . The defense also argued that because the gun used in Mouling’s crimes was from the same manufacturer as the gun thought to have been used here (the defense theory being that both were Rugers), the gun really belonged to Mouling. The fact that the weapon that Hunter was accused of possessing (and using) on October 6 was not recovered at the time of this incident, however, makes that virtually impossible to prove without more evidence than was presented here.

3 . While the standard of review applicable to erroneously-excluded revers e-Drew evidence depends on whether the evidence went to "the heart of the defense theory,” Newman v. United States, 705 A.2d 246, 258 (D.C.1997) (noting that erroneously-excluded reverse-Drew evidence that went to the "heart of the defense theory” is reviewed for constitutional harmless error, while all other erroneously-excluded revers e-Drew evidence is reviewed for non-constitutional harmless error) (quotation marks omitted), this case does not involve erroneously-excluded reverse-Drew evidence. See II., supra. Therefore, we review for non-constitutional harmless error under Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), without regard to whether the erroneously-excluded evidence in this case went to the "heart of the defense theory.”

4 . Hunter's brief makes an oblique reference to the fact that the jury acquitted him of the charges of ADW and CPWL, while convicting him of the UF and UA charges. Without more, however, it is difficult to see what relevance that has to the issues presented here. The jury’s decision to acquit on those charges would appear to have been the result of a compromise verdict, which under the law of this jurisdiction is not to be disturbed. See Haynesworth v. United States, 473 A.2d 366, 368 (D.C.1984) ("Inconsistent criminal verdicts rendered by a jury should not be disturbed”). See also McClain v. United States, 871 A.2d 1185, 1193 (D.C.2005) (quoting Fisher v. United States, 749 A.2d 710, 713 (D.C.2000) (citing to Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)))("At least since 1932, the Supreme Court has made clear that courts are not to inquire into the thinking of a jury with respect to inconsistent verdicts in a single trial.”).

5 . Hunter also argues for the first time on appeal that his UF and UA convictions violate his Second Amendment rights. This argument also fails because (a) there was no evidence that Hunter possessed the weapon for self-defense purposes (indeed, Hunter's defense was that he never possessed the gun or ammunition at all), and (b) the licensing statutes Hunter challenges are not facially unconstitutional or invalid. See Howerton v. United States, 964 A.2d 1282, 1287, 1289 (D.C.2009) (“[A]s the Supreme Court reasoned in [District of Columbia v.] Heller, [128 S.Ct. 2783 (2008),] the Second Amendment protects 'bearing arms for a lawful purpose' by 'law-abiding, responsible citizens ... in defense of hearth and home.’ ... That does not mean, however, that any of the particular statutes at issue here is facially invalid. Notably, the Supreme Court in Heller did not declare invalid any of the individual statutes under which appellant ... was convicted. Moreover, to make a successful facial challenge to the statutes in issue here, appellant ‘must establish that no set of circumstances exists under which [they] would be valid.' It is not 'plain' that appellant can show that with respect to the statutes under which he was charged and convicted.” (citations omitted)).