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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 11-CF-1670, 11-CF-1671 and 12-CF-7
JAMARR MEDLEY ANTOINE RICHARDSON and LUCIOUS MCLEOD, APPELLANTS,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (CF3-25785-09, CF3-4288-10 and CF3-2027-11)
(Hon. Ann O‟Regan Keary, Trial Judge)
(Argued September 16, 2014 Decided December 18, 2014)
Mikel-Meredith Weidman, Public Defender Service, with whom James Klein, Jaclyn Frankfurt and Shilpa Satoskar, Public Defender Service, were on the brief, for appellant Medley. Antoine F. Richardson, pro se. Cory L. Carlyle for appellant McLeod. Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino and David Gorman, Assistant United States Attorneys, were on the brief for appellee. Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and REID, Senior Judge. 2
THOMPSON, Associate Judge: Following a joint jury trial, appellants Antoine
Richardson and Jamarr Medley were found guilty of assault with a dangerous
weapon (ADW), aggravated assault while armed (AAWA), and assault with
significant bodily injury (ASBI), and appellant Lucious McLeod was found guilty
of assault with intent to kill while armed (AWIKWA), AAWA, ASBI, and
obstruction of justice. Appellants raised several claims on appeal. Richardson
argues that the trials were misjoined under Super. Ct. Crim. R. 8 (b). Each
appellant argues that his trial should have been severed from the trial of the other
appellants. Medley and McLeod contend that statements made by appellant
Richardson during recorded jail calls should not have been admitted without
(further) redaction and also argue that some of their convictions merge.
Richardson and Medley argue that the victim did not suffer “serious bodily injury”
for purposes of the AAWA statute, and therefore that their AAWA convictions
should be reversed. In addition, Richardson assigns as error the trial court‟s (1)
admission of evidence that he previously assaulted another individual; (2) failure to
instruct the jury that Richardson‟s initial encounter with the victim was not part of
the charged conduct; and (3) refusal to provide a missing evidence instruction to
the jury. Richardson also raises an issue with respect to the Bureau of Prison‟s
payment schedule for the fines imposed as part of his sentence. For the reasons 3
that follow, we affirm but remand for the trial court to vacate the convictions that
merge with appellants‟ AAWA convictions.
I. Background
Appellants‟ convictions arose out of two assault incidents, involving the
same victim but transpiring a year apart from each other. Only Medley and
Richardson were charged with the first assault; only McLeod was charged with the
second assault. The jury heard the following evidence.
A. The November 10, 2009, Assault (Richardson and Medley)
Cordell Brown testified that on November 10, 2009, he was walking on B
Street, S.E., near its intersection with Bass Place, when appellant Richardson
approached him. According to Brown, Richardson asked him why he had
provided cocaine to Jeanetta Smith, a young woman with whom Richardson was
romantically involved. Although Brown denied having given cocaine to Smith,
Richardson responded by hitting Brown on the head with a pole. 4
Brown testified that he walked around a corner to escape Richardson, but
saw Richardson come around the corner, following him. When Brown approached
Richardson and said, “Man, you hit me,” Richardson again used the pole to hit
him. Brown and Richardson began grappling, with Brown pinning Richardson‟s
arms, pushing him against a wall, and head-butting him. Brown then felt
something hit his back. He turned and saw appellant Medley (and no one else)
directly behind him. Moments later, Brown felt something stab him in his side.
Cheryl Jones, Brown‟s girlfriend at the time, testified that she was in a first
floor apartment on Bass Place on November 10, 2009, when she heard Brown,
from outside, saying that a man had hit him for no reason. Jones came outside and
saw that Brown had a bleeding knot on his head. Brown told her that Richardson
had just hit him, and, a moment later, Jones saw Richardson come around the
corner. Brown then approached Richardson, and the two began fighting. Jones
saw Richardson hit Brown with a “black gate” and saw Medley hit Brown with a
chair. Richardson and Medley fled soon after.
B. Richardson’s calls from jail 5
Richardson was arrested on December 6, 2009, but Medley was not arrested
until May 7, 2010. While in jail, Richardson made a series of phone calls that were
recorded and which the government introduced at trial, with some redactions. In
one call, Richardson said that he needed McLeod to “get on top of” the situation
and to “talk to people.” A few seconds later, Richardson added that Medley
“need[ed] to do something” as well. In still another call, Richardson asked the
other speaker to find McLeod and tell him, “[Richardson] says he needs you on
this.”
C. Medley’s and McLeod’s repeated approaches to Brown and Jones
The jury heard from Jones, who confirmed her grand jury testimony, that,
shortly after the 2009 assault, Medley approached her twice, once in a laundromat
to ask her for Brown‟s location, and once to ask her to “make peace” and have
Brown drop the charges. Brown testified that, on one occasion after the November
2009 assault, he was at the Benco Shopping Center, a few blocks from the scene of
the assault, when he saw McLeod and Medley coming towards him.1 At seeing
Medley, Brown fled to the nearby Metro station. Jones testified similarly about the
1 During cross-examination, Brown clarified that McLeod and Medley were not approaching together. 6
event, adding that Medley specifically asked to speak with Brown during this
incident.
On another occasion after the November 2009 assault, McLeod approached
Brown and repeatedly said, “I know you ain‟t going to court[.]” Brown responded
by expressing his intention to testify against his assailants. On a third occasion,
McLeod offered Brown money to not go to court.
D. The November 1, 2010, Assault (McLeod)
On November 1, 2010, four weeks before the scheduled trial date for the
2009 assault, Brown was attacked again. According to Brown‟s testimony, he was
walking alone on Texas Avenue, heard someone call his name, turned around, and
saw appellant McLeod, whom he had known for several years as a friend of
Richardson‟s, immediately behind him. McLeod stabbed Brown in his left breast
and said, as Brown slumped to the ground, “I knew I would catch you by
yourself.” Brown testified that McLeod struck him several times before he was
able to escape down Texas Avenue. He remembered stopping to throw up blood,
and the next thing he knew, he was in an ambulance. 7
II. Analysis
A. Joinder
Richardson challenges the trial court‟s decision to join appellants‟ trials
under Super. Ct. Crim. R. 8 (b), a decision the court based on its finding that the
two assaults were part of the “same series of acts or transactions[.]” 2 Super. Ct.
Crim. R. 8 (b). Our case law establishes that separate offenses can constitute a
joinable “series of acts or transactions” where “one offense logically leads to
another[.]” Settles v. United States, 522 A.2d 348, 352 (D.C. 1987) (quoting Davis
v. United States, 367 A.2d 1254, 1262 (D.C. 1976)). An offense leads logically to
another when one crime is a “sequel” to the other. Bush v. United States, 516 A.2d
186, 192 (D.C. 1986). “Sequel” offenses include, inter alia, attempts to obstruct
justice, which make appropriate the joint trial of an underlying offense and
2 A trial court‟s decision to jointly try defendants presents a question of law and is subject to de novo review. Ball v. United States, 26 A.3d 764, 767 (D.C. 2011) (citing Ray v. United States, 472 A.2d 854, 857 (D.C. 1984)). “There is, traditionally, a presumption in favor of joinder . . . because joint trials „do conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.‟” Carpenter v. United States, 430 A.2d 496, 502 (D.C. 1981) (en banc) (citation omitted). 8
additional offenses committed by others in an attempt to hide the underlying
offense. See id.3
Here, trials for the 2009 and 2010 assaults were properly joined because
“joinder of defendants is proper under Rule 8 (b) „if they are alleged to have
participated in the . . . same series of acts or transactions[.]‟” Jackson, 329 A.2d at
787 (emphasis in original). The 2010 assault was motivated, according to the
government‟s theory of the case, by McLeod‟s desire to prevent Brown from
testifying against Richardson as to the 2009 assault, and the government so alleged
in the indictment. Further, the government introduced evidence at trial to
corroborate its theory, including evidence that Richardson and McLeod were
friends, that Richardson asserted in telephone calls made from jail that he needed
McLeod to “get on top of” the situation, and that McLeod repeatedly attempted to
talk Brown out of testifying before he resorted to violence. Thus, “while [the
government‟s theory] rest[ed] upon inference, the evidence show[ed] a sufficient
3 See also, e.g., Sams v. United States, 721 A.2d 945, 953-54 (D.C. 1998) (affirming joinder of assault charge with obstruction of justice charge when one of the assailants threatened a material witness); Taylor v. United States, 603 A.2d 451, 455-56 (D.C. 1992) (affirming joinder of defendants charged with assault and perjury, respectively, as the perjury was an attempted cover-up of the other offense); Jackson v. United States, 329 A.2d 782, 787 (D.C. 1974) (affirming joinder of two defendants when one was charged with murder and the other with intimidating a witness). 9
nexus between [Richardson and McLeod] to support the inclusion in the indictment
of a charge” that McLeod endeavored forcibly to obstruct justice by assaulting
Brown. Id.
B. Severance
Even in cases where joinder under Rule 8 (b) is appropriate, severance may
still be necessary under Rule 14, which protects parties from “manifest prejudice as
a result of being tried jointly.” Harrison v. United States, 76 A.3d 826, 834 (D.C.
2013) (quoting Hargraves v. United States, 62 A.3d 107, 115-16 (D.C. 2013))
(internal quotation marks omitted); Super. Ct. Crim. R. 14. A party seeking
reversal based on the trial court‟s refusal to sever properly joined offenses must
show the “most compelling prejudice.” Winestock v. United States, 429 A.2d 519,
527 (D.C. 1981) (quoting United States v. Rhodes, 569 F.2d 384, 390 (5th Cir.
1978)). “[S]ome amount of prejudice will be permitted in favor of judicial
economy and the concomitant expedition of cases.” Carpenter, 430 A.2d at 502.
The decision to sever properly joined offenses is committed to the discretion of the
trial court and will be reversed only when the appellant makes a “clear showing
that [the trial court] has abused its considerable discretion.” Sterling v. United
States, 691 A.2d 126, 135 (D.C. 1997). 10
1. Medley’s arguments
Medley argues that he suffered compelling prejudice from joinder because it
enabled the prosecutors, in their opening statement and closing argument, to
portray the two assaults as if they were part of “a protracted joint campaign” or
“uncharged conspiracy to obstruct justice,” and as if the 2010 stabbing that left
Brown “on the brink of death” — evidence of which “would not have been
admissible if Medley had been tried separately on . . . the 2009 assault” — was
“the product of coordination and cooperation among” the three defendants.
Medley contends that joinder “created an impression that [he] participated in his
codefendants‟ efforts to obstruct justice” and thus “significantly increased the
likelihood that the jury would find him guilty of the 2009 assault.” He argues that
the joinder, which permitted the jury to hear evidence that suggested his
connection with a plan to silence Brown, made it “more plausible that [he] was
participating in a violent assault at the behest of Richardson, rather than defending
his friend after he saw him pinned against a wall.”
Medley‟s arguments do not persuade us that he suffered manifest prejudice
from joinder. It is settled that “[t]he fact that a defendant would have had a better 11
chance of acquittal had he been tried alone is not, in and of itself, a basis for
holding that the denial of severance constitutes an abuse of discretion.” Sousa v.
United States, 400 A.2d 1036, 1042 (D.C. 1979) (internal quotation marks
omitted). We have found manifest prejudice, such as would require severance
under Rule 14, where one defendant is associated with a significantly more heinous
crime committed solely by co-defendants,4 where the evidence against one
defendant is de minimis compared to the evidence against another,5 where one
defendant makes an inculpatory statement that cannot be admitted against a co-
defendant,6 where refusal to sever prevents a defendant from testifying on a co-
defendant‟s behalf,7 or where defendants present conflicting defenses such that
there is “a danger or risk „that the jury will conclude guilt from the conflict
alone[.]‟”8 None of these circumstances was present in this case. The 2009 and
4 Sousa, 400 A.2d at 1041-42 (holding severance required when assault and weapon possession charges against one defendant where joined with murder charges against other defendants). 5 Bush, 516 A.2d at 192. 6 Morris v. United States, 548 A.2d 1383, 1387 (D.C. 1988); see also Ingram v. United States, 40 A.3d 887, 897 (D.C. 2012). 7 Williams v. United States, 884 A.2d 587, 593-94 (D.C. 2005). 8 Sams, 721 A.2d at 954 (quoting Tillman v. United States, 519 A.2d 166, 170 (D.C. 1986)); see also Dancy v. United States, 745 A.2d 259, 266 (D.C. 2000). 12
2010 assaults were similarly heinous, both resulting in Brown‟s hospitalization due
to multiple stab wounds. The evidence against Medley was not de minimis
compared to the evidence against Richardson and McLeod. The government
produced two eyewitnesses, Brown and Jones, to Medley‟s role in the 2009 attack,
just as it did with respect to Richardson‟s, and presented post-incident
consciousness-of-guilt evidence as to Medley (testimony about the numerous times
Medley approached Jones or Brown after the 2009 assault) just as it did as to
Richardson. The government would have been able to introduce such evidence
even if Medley had been tried separately. Jurors were instructed not to consider
Richardson‟s jail calls against Medley,9 and the calls‟ probative value after
redaction10 was of such limited utility (except as to Richardson‟s state of mind) that
we are satisfied Medley did not suffer manifest prejudice from the jury hearing
them. Further, the very severity of the injuries that Medley allegedly inflicted on
Brown — stab wounds that came close to the peritoneal cavity and that would have
been life-threatening had they gone a little deeper — made Medley‟s defense-of-
another claim suspect.
9 The jury is “presumed to have followed” the court‟s instruction. Catlett v. United States, 545 A.2d 1202, 1212 (D.C. 1988). 10 The trial court redacted Richardson‟s statements that he was “sitting here [in prison] taking the lick by [him]self . . . .” and that Medley was “dipping and dodging[,]” reasoning that those statements suggested Medley shared responsibility for the 2009 assault. 13
Medley also emphasizes that the trial court did not keep the evidence of the
two assaults “separate and distinct.” This is correct as a factual matter: Many of
the government witnesses, including Brown, Jones, and Dr. Cooper (who treated
Brown at the hospital after each assault), testified about both assaults; the
prosecutor elicited testimony about the incidents by going back and forth between
both assaults during the same examination; and the testimony was not presented in
strict chronological order. In short, the presentation of evidence fluctuated back
and forth between the two events in a manner we have previously found
unacceptable in matters joined under Super. Ct. Crim. R. 8 (a).11 Importantly,
however, the “separate and distinct” standard does not govern our review of
appellants‟ severance claims because joinder was pursuant to Rule 8 (b).
The requirement that properly joined offenses be tried in a “separate and
distinct” manner was originally articulated in United States v. Drew. 331 F.2d 85,
91 (D.C. Cir. 1964). As the D.C. Circuit explained, when offenses alleged to have
been committed at different times by a single defendant are joined for trial under
11 See Bright v. United States, 698 A.2d 450, 456-57 (D.C. 1997); Long v. United States, 687 A.2d 1331, 1339-40 (D.C. 1996); Arnold v. United States, 511 A.2d 399, 404-05 (D.C. 1986). Rule 8 (a) allows a prosecutor to try a single defendant for a multiple crimes allegedly committed at an assortment of times and places. See Bailey v. United States, 10 A.3d 637, 642-43 (D.C. 2010). 14
Rule 8 (a), “the defendant may be prejudiced [because] . . . the jury may cumulate
the evidence of the various crimes charged and find guilt when, if considered
separately, it would not so find.” Drew, 331 F.2d at 88 (emphasis added). But, the
Drew court reasoned, a defendant will not suffer prejudice from joinder when the
evidence is presented in a “simple and distinct” manner, because a properly
charged jury could “easily keep such evidence separate in their deliberations” and,
therefore “[substantially reduce] the danger of . . . cumulating the evidence[.]”
Drew, 331 F.2d at 91. This court has consistently applied this “simple and
distinct” requirement, which has come to be known as the “separate and distinct”
test,12 in Rule 8 (a) cases (including the cases on which Medley relied on pages 31
and 32 of his brief). See, e.g., Bailey, 10 A.3d at 643-44; McFerguson v. United
States, 870 A.2d 1199, 1202-03 (D.C. 2005); Taylor, 603 A.2d at 456-57. We
have not, however, required application of the “separate and distinct” test in
resolving claims, such as appellants‟ claims here, that are based on joinder under
Rule 8 (b).13 Nor is it appropriate to do so, since Rule 8 (b)‟s “same series of acts
12 See Long, 687 A.2d at 1340 n.5. 13 This is notwithstanding the reference in Sanders v. United States, 809 A.2d 584, 598 (D.C. 2002), to certain evidence having been kept separate and distinct in matters joined for trial under Rule 8 (b). 15
or transactions” criterion is antithetical to trying joined offenses in a “separate and
distinct” manner.14
2. Richardson’s and McLeod’s arguments
Richardson argues that severance was required because of “unfair prejudice
resulting from the brutal 2010 injuries,” as to which only McLeod was charged.
However, although Brown remained in the hospital longer (seven days) after the
2010 assault than he had after the 2009 attack, his injuries during the two assaults
were similarly serious. During the 2009 assault, he suffered a stellate (or
“starburst”-type) injury to the back of his head, a stab wound to his left, upper
back, a stab wound to his left flank, and lacerations to his forehead and chin. Upon
admission to the hospital after the 2010 assault, he was suffering from severe
respiratory distress due to two punctured lungs and five stab wounds. He was
given the same pain medication as was prescribed after the 2009 assault: Percocet,
morphine, and Motrin.
14 See Davis, 367 A.2d at 1261 (“The series of acts envisioned by the drafters of Rule 8 (b) is one in which the individual offenses are connected or interrelated in such a manner that proof of charges against one defendant would necessarily have to be introduced in proving the jointly-charged offenses . . . .”). 16
Richardson also asserts that he was prejudiced by joinder because the jury
heard what he argues were hearsay statements that McLeod made to Brown. We
agree with the government that McLeod‟s statements, “I know you ain‟t going to
court” and “I knew I would catch you by yourself[,]” were non-hearsay verbal acts
or evidence of McLeod‟s state of mind. Richardson‟s suggestion that the jury
might not have heard the statements had Richardson been tried separately
overlooks the point that statements McLeod made in an effort to convince Brown
not to testify still would have been admissible as consciousness-of-guilt evidence
against Richardson (in conjunction with the jail calls in which Richardson called
for McLeod to “talk to people”).
McLeod acknowledges that “some evidence of the 2009 assault may have
been admissible as background to the 2010 assault[.]” We are not persuaded by his
vague argument that he nevertheless was unfairly prejudiced by joinder because
much of the “duplicative” evidence about the 2009 assault would not have been
admissible had he been tried separately. McLeod also argues that absent joinder,
Richardson‟s “hearsay” statements in the jail calls could not have been introduced.
However, for the reasons discussed infra, Richardson‟s statements in the redacted
jail calls were not hearsay. Also, the statements would have been admissible 17
against McLeod in a separate trial to prove the close friendship between
Richardson and McLeod.
C. Admission of Richardson’s Jail Calls
The trial court admitted Richardson‟s jail calls as substantive evidence
against both Richardson and McLeod but instructed the jury not to use the calls
against Medley.15 Medley and McLeod now argue that Richardson‟s jail calls
should not have been admitted at trial without first redacting their (nick)names
from the recordings.
As we recognized in Carpenter v. United States, trial courts have a duty “to
reduce or eliminate any prejudice arising from” the joint trial of defendants.
Carpenter, 430 A.2d at 503. This duty includes “minimiz[ing] potential prejudice”
to one defendant that would stem from the admission of his co-defendant‟s out-of-
court statement if that statement would not have been admissible against the
defendant in a separate trial. Carpenter, 430 A.2d at 505. Hence, in a joint trial,
inculpatory statements admissible against a single defendant should be redacted so
15 We note that, in closing argument, the prosecutor told the jury that the calls were “only admitted for Mr. Richardson‟s case.” 18
as to remove incriminating references to a co-defendant “whenever such portions
may be effectively deleted and the statement thus „sanitized[.]‟” Carpenter, 430
A.2d at 505. However, the requirements of Carpenter do not apply when the
statement at issue “falls within an exception to the hearsay rule[.]” Thomas v.
United States, 978 A.2d 1211, 1224 (D.C. 2009).
The Carpenter requirements do not apply here because none of the
statements about which Medley and McLeod complain constituted hearsay, i.e.,
out-of-court statements “offer[ed] in evidence to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801(c)(2); Jenkins v. United States, 80
A.3d 978, 989 (D.C. 2013). None of Richardson‟s statements asserted that
something happened or that a certain fact was true. The statements, which were
relevant as evidence of Richardson‟s consciousness of guilt, were either assertions
that something ought to occur or were directives or verbal acts introduced by the
government in support of its theory that Richardson was seeking to have his friends
silence Brown. See Walker v. United States, 982 A.2d 723, 737 (D.C. 2009)
(quoting Butler v. United States, 481 A.2d 431, 438 n.10 (D.C. 1984)). 19
Even if we assume arguendo that Richardson‟s statements were hearsay, we
are satisfied, as to both Medley and McLeod, that any prejudicial effect of the
phone calls was minimal. Throughout the portions of the calls heard by the jury,
Richardson referred to obtaining statements on behalf of his investigator.
Although the prosecutor argued, outside the presence of the jury, that Richardson
was using code to communicate a much more sinister message, the jury did not
hear that interpretation, and, as discussed above, the most obviously prejudicial
aspects of the phone calls were redacted, leaving the jury with little to hear but
Richardson asking his friends to help the investigator. We also are satisfied that
any prejudicial effect as to Medley was minimized still more by the court‟s
limiting instruction that the calls were not to be used as evidence against him. As
to McLeod, given the much more powerful and less ambiguous evidence the jury
heard — Brown‟s testimony about McLeod‟s efforts to persuade him not to testify
and about McLeod‟s vicious assault on him — we can say “with fair assurance”
that the jury‟s “judgment was not substantially swayed” by admission of the calls.
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
D. Sufficiency of Evidence for “Serious Bodily Injury” 20
Appellants Richardson and Medley argue that the government produced
insufficient evidence for a reasonable jury to find that the injuries Brown suffered
from the 2009 assault rose to the level of “serious bodily injury,” which is an
element of the crime of aggravated assault while armed (AAWA).16 We disagree.
This Court has adopted the following definition of “serious bodily injury”:
bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
Nixon v. United States, 730 A.2d 145, 149 (D.C. 1999). We have clarified that
“the „substantial risk‟ of which Nixon speaks is only a substantial risk of death, not
a substantial risk of extreme pain, disfigurement, or any of the other conditions
listed.” Scott v. United States, 954 A.2d 1037, 1046 (D.C. 2008).
16 When analyzing the sufficiency of the evidence, we view the evidence “in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence.” Curry v. United States, 520 A.2d 255, 263 (D.C. 1987) (citations omitted). “[I]t is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction.” Zanders v. United States, 678 A.2d 556, 563 (D.C. 1996) (citations omitted). 21
The government relies on two elements from the definition of “serious
bodily injury” to support its argument that the evidence was sufficient to prove
serious bodily injury: extreme physical pain and unconsciousness. As to pain, we
have said that victims need not describe their pain in a particular manner in order
to meet the “extreme” standard, Swinton v. United States, 902 A.2d 772, 777 (D.C.
2006), and that jurors may “infer from the nature of [the victim‟s] injuries, and
from [the victim‟s] reaction to them, that the pain was extreme.” Gathy v. United
States, 754 A.2d 912, 918 (D.C. 2000). Other factors that may be relevant to
whether a reasonable juror could find that a particular injury caused “extreme
physical pain” include (1) the need for and number of stitches the victim received;
(2) the length of the victim‟s hospital stay; (3) the victim‟s behavior immediately
after the assault; and (4) whether the victim received prescription pain medication.
Several of our previous cases are instructive. In Jenkins v. United States, the
victim was attacked with a seven or eight inch knife, suffered multiple stab wounds
in the stomach, chest, and arm, was bleeding profusely, required emergency
exploratory surgery, remained in the hospital for five days, and received
prescription pain medication. Jenkins v. United States, 877 A.2d 1062, 1071-72
(D.C. 2005). Hence, even though the victim was found leaning against a mailbox
at the scene of the attack and never testified that he suffered “extreme” pain, his 22
injuries were sufficient for a reasonable jury to find that he suffered the “extreme
physical pain” of a “serious bodily injury.” Id. at 1071-72. In Anderson v. United
States, the evidence sufficed to prove severe bodily injury because it showed that
the victim was stabbed in her kidney, required immediate surgery that left a “six to
eleven inch scar on [her] belly,” suffered a broken nose and sinus bone, and
received prescription pain medication. Anderson v. United States, 857 A.2d 451,
464-65 (D.C. 2004). We reached the same conclusion in Hart v. United States,
where the victim suffered multiple stab wounds in her arm and vagina, required
seventy-two stitches, spent four days in the hospital, and continued to feel pain
from her injuries at the time of trial. Hart v. United States, 863 A.2d 866, 875
(D.C. 2004). And in Baker v. United States, the victim was stabbed five or six
times, including three times in the head; remained in the hospital for five days;
received 40 staples in his arm and 35-40 staples in his stomach; and suffered
severe blood loss. Baker v. United States, 867 A.2d 988, 995, 1009 (D.C. 2005).
Again, these injuries were sufficient for a reasonable jury to find that the victim
suffered “extreme physical pain,” even though he did not testify about the extent of
his pain at trial. Id. at 1009 n.26.
Here, the jury heard evidence that during the November 2009 incident,
Brown suffered a stellate or starburst-type injury to the back of his head, a stab 23
wound to his left, upper back, a stab wound to his left flank, and lacerations to his
forehead and chin. He received 18 staples to close the wound to his head, and his
other injuries were also treated with sutures and staples. According to Dr. Cooper,
Brown‟s injuries were “very painful,” and the “only reason [Dr. Cooper] admitted
him to the hospital was to control his pain, as well as to make sure that none of the
injuries that he had evolved into other things.” Brown remained in the hospital
from the night of November 10 until November 12 and received morphine,
Percocet, and Motrin for his pain. Brown described the pain as “terrible,” as if
someone had “split [his head] open.” Unlike the situation of the victims in
Bolanos v. United States, there is no indication that Brown was able to walk away
from the scene on his own. Bolanos v. United States, 938 A.2d 672, 681-82 (D.C.
2007). Months after the 2009 assault, Brown was “still hurting” from the attack
and in need of pain medication. And, at the time of trial, he testified that he still
suffered from headaches and pain from the stab wound to his flank.
Considering the foregoing evidence of Brown‟s pain, we cannot say, as a
matter of law, that the evidence was insufficient to prove that he suffered “serious
bodily injury” within the meaning of the aggravated assault statute.17 This is
17 Given the foregoing conclusion, we need not discuss the government‟s argument that the evidence of unconsciousness in this case sufficed to establish (continued…) 24
especially so in light of the additional evidence that Brown suffered some
“protracted . . . impairment of the function” of bodily members. Nixon, 730 A.2d
at 149. The officer who arrived at the scene of the assault found Brown to be
“confused, dazed . . . [and] unsteady,” and, at the time of the 2010 attack nearly a
year later, Brown was still using a cane due to dizziness. He also testified that he
could not sit too long because, if he did, the wound to his side would cause him to
cramp, and he would be unable to “move [his] leg right.”
E. Evidence of the Earlier Assault on “Black”
Appellant Richardson argues that the trial court erroneously admitted
evidence of a prior bad act when it allowed Jeanetta Smith to testify that he
assaulted a man known as “Black.” Specifically, Smith testified that she admitted
to Richardson that Black had provided her with cocaine and that, after hearing this
(…continued) serious bodily injury or Medley‟s argument that the evidence of unconsciousness was speculative. We note, however, that while Brown‟s testimony that he fell unconscious after the 2009 assault was contradicted at least in part by the testimony from Officer Smith, Detective Herndon, and Dr. Cooper, each of whom reported he spoke with Brown at a time when Brown claimed to have been unconscious, the testimony of those witnesses did not cover the entire timespan between the assault and Brown‟s treatment at the hospital. The jury was also not required to conclude that Brown‟s inability to remember some of what happened after the 2009 assault was attributable to memory problems from his head injury rather than to a period(s) of unconsciousness. 25
news, Richardson physically assaulted Black. The government offered this
evidence to show Richardson‟s motive for attacking Brown — outrage at someone
he understood to have supplied drugs to Smith — thus countering Richardson‟s
contention that he acted against Brown in self-defense.
While evidence of prior criminal conduct is not admissible to prove that a
defendant has the propensity to engage in criminal behavior, Drew, 331 F.2d at 89-
90, evidence of prior bad acts may be admissible for other purposes, such as to
prove motive. Johnson v. United States, 683 A.2d 1087, 1092 (D.C. 1996) (citing
Drew, 331 F.2d at 90). Even if evidence of a prior bad act falls into an exception,
however, before admitting it the trial court must find, inter alia, that the evidence
is relevant to “a genuine and material issue” in the case;18 that the prosecution has
established, by clear and convincing evidence, that the prior bad act did occur;19
and that the prejudicial effect of the evidence does not substantially outweigh its
18 Thompson v. United States, 546 A.2d 414, 420, 423 (D.C. 1988) (“We . . . hold that where intent is not controverted in any meaningful sense, evidence of other crimes to prove intent is so prejudicial per se that it is inadmissible as a matter of law.”); Campbell v. United States, 450 A.2d 428, 430 (D.C. 1982). 19 Johnson, 683 A.2d at 1093. 26
probative value.20 “Regarding the last factor, the appropriate balancing test is
whether the prejudicial impact of the evidence „substantially‟ outweighs its
probative value.” Bacchus, 970 A.2d at 273 (citation omitted). We review a trial
court‟s admission of evidence, including its decision on whether evidence is more
prejudicial than probative, for abuse of discretion. Jackson v. United States, 856
A.2d 1111, 1117 (D.C. 2004).
Here, Richardson‟s defense was that he acted in self-defense. By doing so,
he put his own state of mind at issue, causing the government to have to prove that
Richardson was not motivated by a reasonable belief that he needed to protect
himself. Garibay v. United States, 634 A.2d 946, 948 (D.C. 1993) (“[A] self-
defense claim raises the issue of whether the defendant was acting out of an actual
and reasonable fear of imminent bodily harm, or whether, instead, the defendant
had some other motive and was, in fact, the aggressor.”). The issue of
Richardson‟s motive was, therefore, a genuine and material issue before the jury.
In determining whether the government provided clear and convincing
evidence that Richardson assaulted Black, the trial court was permitted to base its
20 Bacchus v. United States, 970 A.2d 269, 273 (D.C. 2009); Thompson, 546 A.2d at 420. 27
ruling on a “detailed proffer from the government.” Daniels v. United States, 613
A.2d 342, 347 (D.C. 1992) (quoting Groves v. United States, 564 A.2d 372, 375
(D.C. 1989)). In this case, the trial court did not explicitly find that the
government had proffered clear and convincing evidence of Richardson‟s
involvement in the earlier assault, despite a request by Richardson‟s counsel for
such a finding. As we stated in Lewis v. United States, where “the trial court and
counsel engaged in several extensive colloquies regarding the Drew issue” without
the trial court ever making an express finding as to the sufficiency of the
government‟s evidence, “the failure of the trial court to make all the necessary
inquiries in exercising its discretion constitutes error.” Lewis v. United States, 567
A.2d 1326, 1330 (D.C. 1989). Accordingly, we review the trial court‟s failure
explicitly to make the requisite finding for harmless error. White v. United States,
613 A.2d 869, 874 (D.C. 1992). We conclude that the error was harmless, because
the government‟s proffer was clearly adequate. The government proffered that
Smith had testified before the grand jury that (1) shortly before the 2009 assault on
Brown, she told Richardson that Black had provided her with a cocaine-laced
marijuana cigarette; (2) she named Brown as another individual who was with her
when she smoked the drugs or was supplied the drugs; (3) Richardson became very
angry when she told him these things; and (4) she shortly thereafter witnessed
Richardson “beat up” Black. Although defense counsel proffered that Black 28
himself disagreed with Smith‟s characterization of his fight with Richardson,
“[t]his court has held that an eyewitness‟ testimony of h[er] observations of the
prior bad acts meets the required standard of showing by clear and convincing
evidence that the defendant was connected with the prior unlawful conduct for
purposes of admission of evidence under a Drew exception.” Frye v. United
States, 926 A.2d 1085, 1094 (D.C. 2005).
We next must determine whether evidence of Richardson‟s earlier assault on
Black was probative of Richardson‟s motive to attack Brown in a way that “did not
depend „wholly or primarily on the jury inferring‟ that appellant „was predisposed
or had a propensity to commit the charged crimes.‟” Legette v. United States, 69
A.3d 373, 384 (D.C. 2013) (quoting Harrison v. United States, 30 A.3d 169, 178
(D.C. 2011)). We have recognized on numerous occasions that previous assaults
against the same victim can serve as motive evidence, demonstrating the
appellant‟s incentive to attack the victim yet again. See, e.g., Garibay, 634 A.2d at
948-49; Hill v. United States, 600 A.2d 58, 62 (D.C. 1991). By contrast, we have
recognized that when successive victims are involved, evidence of motive can
“verge[] upon inadmissibility as mere propensity evidence.” Harrison v. United
States, 30 A.3d at 178 (quoting Robinson v. United States, 623 A.2d 1234, 1239
(D.C.1993)) (internal quotation marks omitted) (holding that evidence that a school 29
teacher had made inappropriate, sexual remarks to teenage girls was inadmissible
propensity evidence when he was on trial for sexually assaulting a different
teenager). Here, however, we are satisfied that the motive evidence was not
evidence suggesting that appellant had a general propensity to commit assaults;
rather, it was evidence suggesting that, if the information appellant received about
Black and Brown supplying cocaine to Smith led Richardson to be angry at both
men and to attack Black, that information and anger — and not self-defense, as
Richardson claimed — were what led Richardson to attack Brown not long after
attacking Black. We therefore agree with the trial court that evidence of
Richardson‟s earlier assault on Black was not mere propensity evidence, elicited to
show Richardson‟s violent nature. Rather, it was probative of Richardson‟s
narrow, specific motive to single out Brown and physically harm him.
We are also satisfied that the evidence of Richardson‟s earlier assault on
Black was not substantially more prejudicial than probative. Bacchus, 970 A.2d at
273. The evidence was highly probative, demonstrating not only the depth of
Richardson‟s anger but aiding the jury in weighing whether the government had
carried its burden of proof against Richardson‟s contention that he acted in self-
defense. At the same time, the prejudicial effect, while certainly present, was
minimal. Few specifics about the attack on Black were provided, and the jury was 30
not even told whether Black sustained any injuries, learning only that Richardson
“[b]asically” got the better of Black and “put him out of the house.”
F. The Initial Encounter Between Brown and Richardson as Part of the Charged Conduct
As described above, Brown testified that the November 10, 2009 incident
occurred in two separate locations. Brown testified that, during what Richardson
refers to as the “first encounter,” Richardson confronted Brown about providing
cocaine to Smith and then struck Brown on the head with a pole. After Brown
escaped around a corner, Richardson followed, and, in what Richardson refers to as
the “second encounter,” the two men approached each other, the two began
grappling, Medley appeared on the scene behind Brown, and Brown was stabbed.
Richardson argues that since the indictment charged both Richardson and Medley
with committing an aggravated assault on Brown and since there was no evidence
that Medley was involved in the “first encounter,” the “first encounter” could not
have been part of the charged conduct. He argues that the trial court therefore
erred in refusing to instruct the jury that “the charges in this case are based only on
the second encounter.” 31
We reject Richardson‟s argument. An assault can (and often does) consist of
a series of related events. See, e.g., Glymph v. United States, 490 A.2d 1157,
1159-61 (D.C. 1985) (concluding that where the appellant, although twice
interrupted by phone calls, engaged in an hour-long assault of his ex-girlfriend, the
beatings were properly joined under a single count as a “continuing course of
assaultive conduct”). The government‟s theory, which it sought to prove through
Brown‟s testimony, was that the “first encounter” and “second encounter” were
part of the same, continuing course of assaultive conduct, in which Medley joined
when Richardson and Brown moved around the corner. Of course, the jury was
not required to accept that theory and could have instead accepted the defense
theory of the case — which the trial court read to the jury [9/6: 152-53] — that
what occurred initially was a mere verbal altercation between Richardson and
Brown and that Brown was the eventual aggressor against Richardson. But we
discern no error in the trial court‟s refusal to instruct the jury that “[t]here are no
charges associated with the first encounter.”
G. Refusal to Give a Missing Evidence Instruction
After the 2009 assault, the police took pictures of the crime scene. These
pictures depict pieces of a broken chair, a red-stained seat cushion, and a broken 32
railing, but the crime scene search officer gathered only one leg from the broken
chair and Brown‟s bloody clothing. No tests were run on these objects, and thus
neither fingerprints nor DNA evidence was recovered from the scene. Richardson
contends that the failure to recover or test all of the physical evidence at the scene
of the assault caused the defense to lose “potentially compelling exculpatory
evidence.” He argues that the trial court erroneously refused to give a missing-
evidence instruction to the jury.
We have recognized that a missing evidence instruction allows the jury to
infer from the absence of evidence that, if the evidence had been produced, it
would have been unfavorable to the party who could have produced it yet did not.
Dent v. United States, 404 A.2d 165, 170 (D.C. 1979). There is therefore a strong
risk that the trial court giving the instruction will “in effect create[] evidence from
nonevidence, [and] may add a fictitious weight to one side of the case . . . .” Evans
v. United States, 12 A.3d 1, 12 (D.C. 2011) (quoting Dent, 404 A.2d at 170-71).
Hence, we accord the trial court “considerable discretion” in determining whether
a missing evidence instruction should be given. Tyer v. United States, 912 A.2d
1150, 1164 (D.C. 2006). The burden is on the party seeking the instruction to
show that the evidence (1) was “likely to elucidate the transaction at issue” and (2)
was “peculiarly available to the party against whom the adverse inference is sought 33
to be drawn.” Tyer, 912 A.2d at 1164 (quoting Hinnant v. United States, 520 A.2d
292, 294 (D.C. 1987)).
Here, we discern no erroneous exercise of discretion in the trial court‟s
refusal to give the instruction because Richardson did not meet the requirements of
the first prong of this analysis. It is by no means clear that the missing objects
were “likely to elucidate” whether Richardson acted in self-defense — which was
the actual question before the jury, as Richardson at no point denied that he was
both at the scene and involved in a physical altercation with Brown. Cf. Tyer, 912
A.2d at 1165-66.21 Therefore, even if we analyze the issue as whether the trial
court erroneously exercised its discretion when it declined to give the requested
instruction as a sanction against the government for failure to preserve crime-scene
evidence, we would hold that Richardson is not entitled to relief because the
alleged error “did not substantially prejudice appellant or significantly contribute
to the verdict rendered against him.” Simmons v. United States, 999 A.2d 898, 901
(D.C. 2010) (quoting Cotton v. United States, 388 A.2d 865, 871 (D.C. 1978)).
21 Even if the instruction had been warranted, we are persuaded that any error in failing to give it was harmless. See Tyer, 912 A.2d at 1164. Defense counsel argued in closing that reasonable doubt existed because the government failed to preserve crucial items at the crime scene and engaged in an able cross- examination of the crime scene search officer on this topic. 34
H. Richardson’s Fine Payment Schedule
Richardson‟s final argument is that the trial court improperly delegated to
the Bureau of Prison‟s Inmate Financial Responsibilities Program the court‟s
authority to establish the timing of the payment he was ordered to make to the
Victims of Violent Crime Compensation Fund. The authorities Richardson cites
for his argument are inapposite, as all pertain to delegation by federal district
courts and are inapplicable as to the District of Columbia Superior Court.
I. Merger of Certain Convictions
Appellant Medley argues that his convictions for ADW and ASBI merge
with his AAWA conviction, and appellant McLeod argues that his conviction for
ASBI merges with his conviction for AAWA. They are correct. “ADW is a lesser
included offense of aggravated assault while armed.” Gathy, 754 A.2d at 919.
Additionally, “ASBI is a lesser-included offense of aggravated assault.” Collins v.
United States, 73 A.3d 974, 985 (D.C. 2013). Richardson does not argue that his
convictions for ADW and ASBI merge with his conviction for AAWA, but we
conclude for the foregoing reasons that they do merge. See Carter v. United 35
States, 957 A.2d 9, 22 (D.C. 2008) (raising merger issue sua sponte as to co-
appellant). Therefore, we remand to the trial court to vacate (1) Medley‟s and
Richardson‟s convictions for ADW and ASBI and (2) McLeod‟s conviction for
ASBI. No resentencing is required. See Collins, 73 A.3d at 985 (“Resentencing is
not required, as appellant‟s sentences for these counts are concurrent and
congruent.”).
III. Conclusion
We remand for the trial court to vacate the lesser-included convictions that
are affected by merger. In all other respects, the judgments of the trial court are
Affirmed.