Jackson v. United States, s. 10–CF–582

26 A.3d 764

Adrian L. BALL & Christopher J. Jackson, Appellants,

v.UNITED STATES, Appellee.

Nos. 10–CF–582

10–CM–639.

District of Columbia Court of Appeals.

Argued May 17, 2011.Decided Aug. 25, 2011.

Julian S. Greenspun, for appellant Ball.Raymond J. Rigat, Clinton, CT, for appellant Jackson.Amanda J. Winchester, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Adam J. Schwartz, Assistant United States Attorneys, were on the brief, for appellee.Before WASHINGTON, Chief Judge, OBERLY, Associate Judge, and KING, Senior Judge.WASHINGTON, Chief Judge:

Appellants Adrian Ball and Christopher Jackson seek reversal of their convictions stemming from their involvement in a high-speed chase and subsequent foot pursuit by police. Jackson raises only one issue on appeal, challenging the government's joinder of his charges with those of his co-appellant, Ball. Ball, in turn, raises three issues, challenging (1) the sufficiency of the evidence of his conviction for felony assault of a police officer; (2) his separate sentencing for possession of a firearm during a crime of violence; and (3) the trial court's failure to respond to allegedly improper comments made by the prosecutor in closing. We affirm all of Jackson's convictions and most of Ball's convictions, but we remand Ball's case to the trial court for further proceedings consistent with this opinion.

I.

On December 16, 2009, Ball and Jackson were each indicted on numerous charges. Because Ball's offenses involved a gun, his charges are more serious: assault with a dangerous weapon (“ADW”); ¹ assaulting, resisting, or interfering with a police officer while armed (“felony APO”); ² two counts of possession of a firearm during a crime of violence (“PFCV”); ³ unlawful possession of a firearm by a convicted felon; ⁴ carrying a pistol without a license (“CPWL”); ⁵ possession of an unregistered firearm; ⁶ and unlawful possession of ammunition. ⁷ Jackson, who was unarmed at all times, was indicted on charges of: fleeing a law enforcement officer; ⁸ assaulting, resisting, or interfering with a police officer (“misdemeanor APO”); ⁹ and reckless driving.¹⁰ The appellants were tried together during a three-day jury trial after which the jury convicted them on all counts.

The government introduced evidence that at around 3:00 a.m. on September 7, 2009, Metropolitan Police Sergeant Michael Lynch was sitting in his cruiser in Northeast when he observed a white Buick traveling at a high rate of speed. When he began to follow the Buick, it sped up as if to get away, and Lynch placed a call over his police radio to other officers, alerting them to the situation. Two more police cruisers then joined the chase: one containing Officers Thomas O'Donnell and Barry Gomez, and the other containing Officers Christopher Woody and Gregory Shiffer. Ultimately, the Buick blew a tire and came to a “dramatic[ ]” stop, after which three men exited the Buick and fled on foot.

Woody and Shiffer saw Jackson flee from the driver's seat, and Woody was able to tackle Jackson after chasing him for about forty or fifty yards. Jackson did not go down without a fight, and instead flailed at, elbowed, and punched Woody while trying to break free. Once Shiffer arrived, he and Woody were able to subdue Jackson.

Officers Gomez and O'Donnell arrived and saw someone exit the Buick from the rear door on the passenger's side with a gun, and O'Donnell pursued him, calling out that he had seen a gun. Gomez, hearing O'Donnell's alert, unholstered his weapon and saw two more individuals flee the Buick, one of whom was Ball. Gomez testified that when Ball got out of the Buick, he was carrying an “extremely large” handgun. Gomez chased after Ball at a “dead sprint,” telling him numerous times to stop and to drop the gun. After the final warning, Ball turned his “upper torso” toward Gomez and pointed the gun in Gomez's direction, prompting Gomez to fire his own weapon once at Ball. After approximately a second, since Ball was still pointing the gun in Gomez's direction, Gomez fired again. Neither bullet struck Ball, but Ball then stumbled and tossed his gun off to the side. The chase continued into an alleyway, where Ball fell and Gomez was able to apprehend him.

After Gomez indicated to other officers the location where Ball had discarded his gun, Officer Ridley Durham recovered a Ruger 9mm loaded with 19 rounds of ammunition. When Durham removed the magazine from the gun, he saw that the weapon was jammed. A government expert testified that the gun was in normal working condition and would have fired but for the jammed magazine; he also stated that had a bullet been in the chamber, it would have fired. Four days after the incident, police searched Ball's home and recovered ammunition that was compatible with the Ruger, some of which was identical to the type found in the gun.

II.

Jackson's sole argument on appeal is that the trial court erred by denying his motion for relief from misjoinder and his motion for reconsideration of that denial. “Misjoinder ... is an error of law,” and thus we “subject[ ] the trial court's [joinder] decision to de novo review.” Ray v. United States, 472 A.2d 854, 857 (D.C.1984). Because all of Jackson's and Ball's crimes were logically related, we affirm Jackson's conviction.

Joinder of defendants is governed by Super. Ct.Crim. R. 8(b), which states that “[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Multiple offenses constitute such a “series of acts or transactions” where “one offense logically leads to another....” Byrd v. United States, 551 A.2d 96, 99 (D.C.1988) (citing Davis v. United States, 367 A.2d 1254, 1262 (D.C.1976) (citations omitted)).¹¹ In other words, where there exists “a logical connection between the two offenses, and if one is shown to be a ‘sequel’ to the other, then joinder is proper.” Sams v. United States, 721 A.2d 945, 954 (D.C.1998) (citing Bush v. United States, 516 A.2d 186, 192 (D.C.1986)). We employ a “strong policy favoring joinder” because it “expedites the administration of justice” in numerous ways. See Sousa v. United States, 400 A.2d 1036, 1040 (D.C.1979) (citation omitted).

In the instant case, joinder was appropriate because all of Jackson's and Ball's offenses constituted a logically connected series of transactions. All of the assault offenses were “sequels” to Jackson's initial reckless driving charge. The incidents occurred within a span of mere minutes, from the inception of the high-speed chase to the ultimate apprehension of the Buick's occupants. Once the Buick's tire had blown, the occupants were logically forced to flee by foot, and when the officers closed in on them, the next logical step in evasion was to resist arrest. Moreover, much of the evidence of the various offenses would substantially overlap. The same officers' testimony was necessary to prove most of the offenses, since all of the officers became involved in the incident when they were called to respond to the speeding Buick. It would be particularly difficult to separate the evidence of Ball's weapon-based offenses from Jackson's reckless driving charge because a jury would clearly need to know why Gomez was sprinting after Ball, with his gun drawn, at the time Ball pointed his weapon at Gomez.

We are further convinced that joinder was appropriate under the circumstances of this case because it is in stark contrast to other cases in which we have held joinder to be inappropriate. See, e.g., Jackson v. United States, 623 A.2d 571, 579–80 (D.C.1993) (citation omitted) (joinder erroneous where appellants robbed two liquor stores on different dates, in isolated events, involving different victims and witnesses); Settles v. United States, 522 A.2d 348, 353 (D.C.1987) (joinder erroneous where two appellants assaulted two separate victims in incidents separated by a ten-day span and involving different witnesses). Thus, we affirm the trial court's denials of Jackson's motion for relief from misjoinder and his motion to reconsider that ruling, and since this is Jackson's only argument on appeal, we affirm all of his convictions.

III.

Ball's primary argument on appeal is that the evidence was insufficient to convict him of felony APO and that, instead, it was only sufficient to convict him of the lesser charge of misdemeanor APO. We disagree.

Upon review of a challenge to the sufficiency of 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.” Gibson v. United States, 792 A.2d 1059, 1065 (D.C.2002) (citation omitted). In order to defeat the appellant's challenge, the government must only “adduce at least some probative evidence on each of the essential elements of the crime.” Jennings v. United States, 431 A.2d 552, 555 (D.C.1981) (citation omitted). “It is only where there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the trial court may properly take the case from the jury.” Gibson, supra, 792 A.2d at 1065 (citation omitted).

The District of Columbia Code criminalizes assaulting a police officer at §§ 22–405(b), (c) (2001), which state that:

(b) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor....

(c) A person who violates subsection (b) of this section and causes significant bodily injury to the law enforcement officer, or commits a violent...