Fadero v. United States
Fadero v. United States
Opinion of the Court
Appellant George Fadero brings multiple challenges to his convictions for felony assault on a police officer while armed (APOWA)
I.
According to the government’s evidence, on the morning of February 12, 2011, Metropolitan Police Department Officer James O’Gorman was sitting in a marked police car in a parking lot off of New York Avenue, N.E. Shortly after 9:00 a.m., a white Dodge van entered the lot, then headed back onto New York Avenue in the same eastbound direction. Officer O’Gor-man followed the van and initiated a traffic stop after watching the van make several unsafe lane changes. The officer drove behind the van for about half a mile with his lights and siren on before the van came to a stop in front of the Washington Times building. At this point, the officer notified the dispatch officer of his location, requested backup, and left his vehicle to approach the van.
When Officer O’Gorman reached the driver’s side door, the driver lowered his
When he was nearly halfway back to his car, Officer O’Gorman heard the van’s engine accelerate. He looked back just in time to see the rear of the van, moving slowly in reverse, strike him in the back. O’Gorman fell forward into the road, landing on his hands and knees. While he was on the ground, he heard the van accelerate again, this time speeding away from the scene. As soon as he got up, Officer O’Gorman got back into his car and sent a message over the radio reporting what had just happened. Once inside his car, O’Gor-man pursued the van, running his lights and siren and maintaining radio contact with the dispatcher until the van left the highway, whereupon the station manager told O’Gorman to abandon the pursuit in the interest of public safety.
Officer O’Gorman returned to his police station and reported to his superior. After completing the mandatory paperwork, he was taken to the hospital where his back was examined. The doctor observed red marks on his back and prescribed medication to help ease his pain. O’Gor-man’s supervisor directed him not to work the next day, a Sunday, and to report to the department clinic on Monday morning for follow-up. After his check-up on Monday morning, O’Gorman returned to work. Also on the 13th, Officer O’Gorman met with two other MPD officers to look at a photo array. It contained nine photos from which O’Gorman was able to identify appellant Fadero immediately.
Nearly two weeks later, on February 25, 2011, U.S. Marshals — who had located Fadero and kept him under surveillance— executed an arrest warrant for Fadero at the motor vehicle inspection station at 1001 Half Street, S.W. The marshals surrounded a white van, confirmed Fadero’s identity, and followed him out of the van into the inspection building, where they placed him under arrest. At the time of arrest, Fadero was wearing blue jeans, a white t-shirt, and a black leather Redskins NFL jacket. The marshals performed a search of Fadero incident to his arrest and found on him an identification card, a driver’s license (later found to be falsified), a substance (later determined to be marijuana), and more than $2,000 in cash. Officer O’Gorman was summoned to the scene, and when he arrived he saw the marshals detaining a man (Fadero) whom he immediately recognized and identified as the driver of the van on February 12. O’Gor-man also recognized and identified (with the help of identical tag numbers) the
II.
A.
Citing Super. Ct.Crim. R. 8(a),
Fadero contends that (1) the assault-related offenses from February 12th were not of the “same or similar character” as the traffic and drug-related offenses from February 25; that (2) these incidents were “totally unrelated”; and that (3) they were not part of a “common plan or scheme” — thereby failing to meet Rule 8(a) criteria.
We agree with Fadero’s rejection of the first and third arguments that the incidents were not of the “same or similar character” or part of a “common scheme or plan”; but, like the trial court, we cannot agree that the charges attributable to the two February incidents are “totally
Our “predominant consideration” when deciding whether offenses are properly joined is whether the joinder “would serve the goals of trial economy and convenience,”
In this case, the evidence showed that the “acts or transactions” resulting in the offenses committed on February 12 and 25 were “connected together”
Although reciprocal admissibility is not required for proper joinder, evidence from the offenses on the 12th also provided substantial proof of the offenses on the 25th. If not for the arrest warrant (based on O’Gorman’s photo identification) issued because Fadero fled the scene of the assault on the 12th, the U.S. Marshals would not have arrested Fadero on the 25th and discovered the illegal drugs, falsified driver’s license, and expired license plates that served as grounds for convictions. In sum, because of the substantial overlap in evidence for the charges attributable, respectively, to acts or transactions on February 12 and 25, the offenses committed or revealed on those separate days were “connected together” within the meaning of Super. Ct.Crim. R. 8(a) and thus properly joined for trial.
B.
Having concluded that the offenses were properly joined, we review for abuse of discretion the denial of Fadero’s motion to sever under Super. Ct.Crim. R. 14. To meet this burden, appellant must demonstrate “the most compelling prejudice ... from which the court would be unable to afford protection if both offenses were tried together.”
Fadero argues, primarily, that he was prejudiced by the court’s refusal to sever because the jury was confused about which dates applied to which offenses. We understand this contention to mean that the jurors were likely to have taken evidence of crimes from one date to find guilt of crimes on the other date — an improper “cumulation” of evidence.
We do not ignore that the assaultive events of February 12 were more serious, even inflammatory, to a degree higher than those that occurred on February 25. Nonetheless, their proper joinder for trial under Super. Ct.Crim. R. 8(a), when coupled with the foregoing analysis of the trial record and the deference we owe discretionary judgments under Super. Ct.Crim. R. 14, convince us that the trial court did not abuse its discretion in denying the severance requested by Fadero’s trial counsel.
III.
Appellant challenges the trial court’s admission of two redacted radio transmissions (commonly called “radio runs”) between Officer O’Gorman and a police dispatcher. These, he says, contained prejudicial hearsay. During a pretrial conference, defense counsel objected to all hearsay portions of the unredacted version of the audio recordings where Officer O’Gorman was “talking about what just happened to him.” The trial court reviewed the tape and ordered redactions of hearsay that the court did not consider to be either “excited utterances”
There is confusion about what statements were and were not admitted in evidence from a disk transcription. Fadero references three hearsay statements by Officer O’Gorman that he claims were played erroneously before the jury: (1) “he almost hit me and just pulled away outbound New York Avenue”; (2) he “tried to run me over”; and (3) “Be advised that he did hit me.” The government represents that, after redaction, only a version of the first statement Fadero cites was admitted, not all three, and that the statement was different from the one Fadero proffered. According to the government, O’Gorman reported: “Someone just hit me, just pulled away,” not merely that someone — as Fadero claims — “almost” did so. Having listened to the recording — not easy to understand — we are inclined to agree that Fadero’s version of the first statement, “he almost hit me,” is accurate, but we agree with the government that Fadero’s other two proffered statements were not on the recording played for the jury.
We need not determine to a certainty what statements were actually in evidence or, in, any event, whether any of them conforms to, or falls outside of, the “excited utterance” or “present sense impression” exceptions to the hearsay rule.
IV.
Fadero next challenges the jury instruction defining “significant bodily injury” under the APOWA statute. Because counsel did not object to the instruction as given, we normally would review for plain error.
Fadero argues that this definition is “insufficient” and “incomplete,” urging that the statute requires for conviction a more serious injury, namely, “a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a bodily member, organ or mental faculty.”
Title 22, Chapter 4, of the District of Columbia Code, entitled “Assault, Mayhem, Threats,” specifies several assault crimes, three of which are defined by the level of injury inflicted upon the victim: (1) aggravated assault, § 22-404.01 (requiring “serious bodily injury”); (2) felony assault, § 22-404(a)(2) (requiring “significant bodily injury”); and (3) the statute at issue here, felony assault on a police officer (APO), § 22-405(c) (also requiring “significant bodily injury”).
As to the first, § 22-404.01(a), one is guilty of “aggravated assault” either (1) by “knowingly or purposefully causing] serious bodily injury” or (2) “[u]nder circumstances manifesting extreme indifference to human life, ... [by] intentionally or knowingly engaging] in conduct which creates a grave risk of seriously bodily injury, and thereby causes serious bodily injury.” The statute does not define “serious bodily injury,” but this court has done so in Nixon, where we borrowed the definition from the Sexual Abuse chapter, D.C.Code § 22-3001(7) (2001).
In 2007, eight years after our decision in Nixon, the Council of the District of Columbia added a new level of assault, § 22-404(a)(2), which we have characterized as an “intermediate felony assault offense” enacted “to fill the gap between aggravat
The foregoing discussion of the felony assault statute is important because, in that same legislation
Contrary to Fadero’s suggestion for incorporating the definition of “serious bodily injury” from the aggravated assault context into § 22-405(c), the government urges us to import the definition of “significant bodily injury” from the felony assault statute, itself a “significant bodily injury” statute. We readily agree with the government. Where a particular term is used in different sections of the same statute, we assume that the term will have a “consistent definition unless otherwise indicated or obvious from the face of the statute.”
Because the trial court instructed the jury that “significant bodily injury” under the APO statute means “an injury that requires hospitalization or immediate medical attention,” the definition found in the felony assault statute, § 22-404(a)(2), the court instructed correctly. There was no error.
y.
Finally, Fadero challenges the sufficiency of the evidence for his convictions of APOWA, ADW, and fleeing the scene of accident after causing personal injury.
Appellant focuses on his conviction for assaulting a police officer while armed. To prove felony APOWA, the government must prove the elements of simple assault: that the defendant “(1) attempted with force and violence to injure another; (2) at the time had the apparent present ability to injur[e] the victim; [and] (3) intended to perform the acts constituting the assault....”
Sufficient evidence of each element is found in the trial record. Fadero backed the van into Officer O’Gorman (elements 1, 2, and 3). O’Gorman was driving a police vehicle, wearing an officer’s uniform, and spoke with Fadero, as a police officer, through Fadero’s open car window, all of which revealed that Fadero knew or should have known that O’Gorman was a police officer (element 4). Fadero’s backing into O’Gorman, even slowly, created a
Finally, the evidence was sufficient for Fadero’s conviction of fleeing from the scene of an accident after causing personal injury. D.C.Code § 50-2201.05(a)(1) (2001) provides that any person who injures another with a vehicle must stop and give assistance to the injured party. Failure to do so can lead to a fine and imprisonment. Viewed in the light most favorable to the government, (including Officer O’Gorman’s testimony that the blow from the van felt like “a real hard hit in football”), the evidence was sufficient for a finding that the driver knew he had hit Officer O’Gorman, injured him (however slightly), and did not stop to assist him.
‡ ‡ ‡ ‡
For the foregoing reasons we affirm all convictions, although as noted
So ordered.
. D.C.Code § 22-405(c) (2007 Supp.); § 22-4502 (2001). The first section covers felony Assault on a Police Officer (APO); the second section adds punishment if the assault is "while armed.”
. Assault with a Dangerous Weapon (automobile) (ADW), D.C.Code § 22-402 (2001); Fleeing from Scene of Accident after Causing Personal Injury, D.C.Code § 50-2201.05(a)(1) (2001); Fleeing from a Law Enforcement Officer in a Motor Vehicle, D.C.Code § 50-2201.05b (b)(2) (2001).
. D.C.Code § 48-904.01(d) (2001).
. Operating an Unregistered Motor Vehicle, D.C.Code § 50-1501.04(a) (2001); Operating a Motor Vehicle after Suspension of a Driver's License, D.C.Code § 50-1403.01(e) (2001); Operating a Motor Vehicle Without a Permit, D.C.Code § 50-1401.01(d) (2001); Altering a Motor Vehicle Permit, DCMR § 18-1110.2 (1995); and Operating a Motor Vehicle with Expired Tags, DCMR § 18-1101.3 (1995).
. See supra notes 1 & 2.
. See Ball v. United States, 26 A.3d 764, 771 (D.C. 2011).
. It is not clear from the record how the photo array was put together; we know only that Officer O’Gorman’s colleagues showed the array to him at a Wendy’s restaurant located between the police station and O’Gor-man’s home. Nothing about the photo array is contested here.
. Super. Ct.Crim. R. 8(a) provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.
. Super. Ct.Crim. R. 14 provides:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the Court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the Court may order the prosecutor to deliver to the Court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.
. Bailey v. United States, 10 A.3d 637, 642 (D.C. 2010) (internal quotation marks omitted).
. See Super. Ct.Crim. R. 8(a), supra note 8.
. It is interesting to note that, on the join-der/severance issue, Fadero challenges only his convictions of the offenses attributable to the February 25 incident. He apparently assumes that the evidence flowing from the assault on February 12 was so inflammatory that it prejudiced the jury's consideration of the February 25 offenses — but not vice versa.
. Super. Ct.Crim. R. 8(a), supra note 8.
. Gooch v. United States, 609 A.2d 259, 264 (D.C. 1992) (quoting Blunt v. United States, 404 F.2d 1283, 1288 (D.C.Cir. 1968)).
. Id.
. Id. (quoting United States v. Montes-Cardenas, 746 F.2d 771, 776 (11th Cir. 1984)).
. We have stressed that "[j]oinder is not automatic upon proof that the evidence would be admissible in separate trials.” Id. at 264 n. 7 (citing Montes-Cardenas, supra note 17, 746 F.2d at 777 n. 10). "Rather, the focus must be on whether the offenses are connected so that there is a substantial overlap of proof.” Id. (emphasis added) (citing Montes-Cardenas, supra note 17, 746 F.2d at 776). No issue is presented here as to what "substantial portion" means when, as here, there are multiple charges for each date. As we shall see, evidence from the February 25 arrest and search is germane to all charges for the incident on February 12.
. Id. at 264 ("Reciprocal admissibility is not the test in determining whether offenses can be joined properly under Rule 8(a).” (citing Winestock v. United States, 429 A.2d 519, 524 (D.C. 1981))).
. Id.; see supra note 9.
. See supra note 8.
. Gooch, supra note 15, 609 A.2d at 264 (quoting Montes-Cardenas, supra note 17, 746 F.2d at 776).
. Bright v. United States, 698 A.2d 450, 454 (D.C. 1997) (internal quotation marks omitted).
. Bell v. United States, 332 A.2d 351, 353 (D.C. 1975).
. See id.
. THE COURT: The note reads jurors are requesting clarification for charge operating a motor vehicle. Does this date refer to February 12, and February 25, or both? What is defined highway in D.C.? Is Half Street or any public road in D.C. considered a highway? Are all driving offenses related to the dates February 12, or February 25, or both? If charges apply to both dates are multiple — are multiple counts to be considered?
I propose! ] we respond as follows: Ladies and Gentlemen, this is in response to your note. You will see from the verdict form, the operating an unregistered motor vehicle charge relates to February 25th, 2011, only. The verdict form also shows the relevant dates for each of the charged offenses, each
Is that satisfactory to the Defense? [COUNSEL]: That’s fine, Your Honor.
. Officer Mathis testified as to his perceptions on February 12 of Officer O’Gorman's injuries earlier that day. Next, Officer O’Gor-man testified as to the events on the 12th, then about his viewing the photo array on the 13th, and finally about the events on the 25th; Officer O’Gorman's testimony was divided so that the two week period between the events was clearly established. Sergeant Petz then testified as to the presentation of the photo array to Officer O’Gorman on the 13th, followed by the testimony of Deputy Marshal Gause, who arrested Fadero at the motor vehicle inspection station and testified as to the events on the 25th.
. Reyes v. United States, 933 A.2d 785, 794 (D.C. 2007) (citing Bell, supra note 25, 332 A.2d 351).
. See Nicholson v. United States, 368 A.2d 561, 564 (D.C. 1977) (permitting admission of statement by declarant within reasonably short time after serious occurrence that caused state of nervous excitement or physical shock, such that totality of circumstances suggests spontaneity and sincerity of statement).
. See Hallums v. United States, 841 A.2d 1270, 1276 (D.C. 2004) ("permitting admission of statements describing or explaining events which the declarant is observing at the time he or she makes the declaration or [statements made] immediately thereafter”).
. See Abdulshakur v. District of Columbia, 589 A.2d 1258, 1265 (D.C. 1991) (”[H]earsay evidence admitted without objection may be properly considered by the trier of fact and given its full probative value.” (quoting Mack v. United States, 570 A.2d 777, 782 (D.C. 1990))).
. See Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992).
. Thomas v. United States, 914 A.2d 1, 8 (D.C. 2006) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
. Id. (internal quotation marks omitted).
. See supra notes 30 & 31.
. Thomas, supra note 34, 914 A.2d at 8.
. See supra notes 33-35 and accompanying text.
. Because defense counsel not only failed to object but also expressly agreed to the court’s proposed definition of “significant bodily injury,’’ the government invokes the invited error doctrine to argue that Fadero is bound by the
. See supra note 1. The “while armed” element of APOWA, with which Fadero is charged, is added by D.C.Code § 22-4502 (2001).
. Subsection (b) of D.C.Code § 22-405 governs misdemeanor assault on a law enforcement officer.
. Nixon v. United States, 730 A.2d 145, 150 (D.C. 1999) (adopting definition for "serious bodily injury” in aggravated assault statute from sexual abuse statute); accord, Jackson v. United States, 970 A.2d 277, 279-80 (D.C. 2009).
. In re R.S., 6 A.3d 854, 857 (D.C. 2010).
. See supra text accompanying note 42.
. In re R.S., supra note 44, 6 A.3d at 858 (quoting Jackson v. United States, 940 A.2d 981, 986-87 (D.C. 2008) and citing D.C. Council, Committee on the Judiciary, Report on Bill 16-247 at 6 (Apr. 28, 2006) (internal quotation marks omitted)).
. See D.C.Code § 22-404(a)(2); In re R.S., supra note 44, 6 A.3d at 858-59.
. In re R.S., supra note 44, 6 A.3d at 858-59.
. Id. at 859.
. In In re R.S., we quoted with approval the trial judge’s discussion of the definition of "significant bodily injury” under the felony assault statute, D.C.Code § 22-404(a)(2). The judge concluded that "an individual suffers significant bodily injury
where there is an injury to the body ... that necessitates the individual being taken to the hospital or receiving medical treatment shortly after the injury was inflicted. Hospitalization or medical treatment is required where it is necessary to preserve the health and well being of the individual, e.g., to prevent long-term physical damage, possible disability, disfigurement, or severe pain.
In re R.S., supra note 44, 6 A.3d at 859 (quoting In re R.P., 136 Daily Wash. L. Rptr. 549, 552 (D.C.Super.Ct. Feb. 19, 2008)).
. See "Omnibus Public Safety Act of 2006,” D.C. Law 16-306 (West).
. See supra note 42.
. See Carey v. Crane Serv. Co., 457 A.2d 1102, 1108 (D.C. 1983).
. See supra note 51.
. According to the government, which Fade-ro does not dispute, as of the date of the offense at issue here, the term "significant bodily injury” appeared only twice in the entire D.C.Code. See D.C. Council, Committee on the Judiciary, Report on Bill 16-247 at 3, 5-6 (April 28, 2006).
. In re R.S., supra note 44, 6 A.3d at 858 (internal quotation marks omitted).
. See supra notes 1 and 2.
. Lewis v. United States, 161 A.2d 219, 222 (D.C. 2001) (citing Abdulshakur, supra note 32, 589 A.2d at 1263).
. Id.
. Price v. United States, 813 A.2d 169, 175-76 (D.C. 2002) (internal quotation marks omitted); see D.C.Code § 22-405(c) (incorporating subsection (b) (simple assault)).
. See In re J.S., 19 A.3d 328, 330 (D.C. 2011).
. D.C.Code § 22-405(c).
. D.C.Code § 22-4502.
. Fadero’s vehicle knocked O'Gorman to the ground and caused injuries sufficient to require a brief hospital visit and two days of leave. We need not evaluate whether the officer's injuries in themselves amounted to "significant bodily injury," because, unlike the felony assault and aggravated assault statutes, the APO statute requires only a "grave risk" of the required injury, which the evidence establishes here. Compare D.C.Code § 22-405(c)(APO), with id. §§ 22-404.01 (aggravated assault), and -404(a)(2) (felony assault); see Ball, supra note 6, 26 A.3d at 770 & n. 16 (APO statute contains no requirement that a defendant “actually inflict injury”).
. Perry v. United States, 36 A.3d 799, 812-13 (D.C. 2011).
. See Sandwich v. District of Columbia, 21 A.3d 997, 1000 (D.C. 2011) (holding that "a driver who knows that he or she has been involved in a collision in which there is a possibility that another person has been injured has a duty under D.C.Code § 50-2201.05(a)(1) to stop and investigate whether injury actually occurred”).
. See Scott v. United States, 954 A.2d 1037, 1049 (D.C. 2008).
. See supra notes 6 & 66 and accompanying text.
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