KRAMER, Associate Judge:
Vincent Workman appeals his convictions for first-degree murder while armed, possession of a firearm during a crime of violence (PFCV) and two counts of carrying a pistol without a license (CPWL). D.C.Code §§ 22-2101 to -4502-4504 (b)-4504 (a). Workman argues that the trial court erred by declining to sever one of the CPWL counts from the other counts, and by declining to adopt his proposed language for a jury instruction regarding motive. We find no error and affirm.
Workman was charged and convicted based on two separate incidents. The first occurred on February 6, 2006, when Workman was alleged to have murdered an acquaintance. Workman was charged with first-degree murder, PFCV and CPWL for his actions on February 6. Later, on March 10, 2006, Workman was arrested. Prior to his arrest, Workman was alleged to have been in possession of a pistol that he left on the rear floorboard of a car. He was charged with CPWL for his actions on March 10. The government alleged that the pistol Workman possessed in March was the murder weapon in February.
Prior to trial, Workman moved to sever the March CPWL count from the other counts to avoid prejudice. Workman argued that joinder was prejudicial because the evidence of the February murder count and the associated weapons charges would be inadmissible at a trial for the
At trial, the government did not present any evidence of motive. The court proposed instructing the jury that though motive was not an element the government was required to prove, the jury could consider the presence or absence of motive when assessing whether or not the government had proven its case beyond a reasonable doubt.
The jury convicted Workman on all counts, and he now assigns error to both the trial court's denial of his motion to sever, and the court's giving the motive instruction.
Superior Court Criminal Rule 14 permits a trial court to sever properly joined offenses to avoid prejudice "as justice requires." Super. Ct.Crim. R. 14. To warrant severance, a defendant must show "the most compelling prejudice . . . from which the court would be unable to afford protection if both offenses were tried together." Parker v. United States, 751 A.2d 943, 947 (D.C.2000) (internal quotation omitted). The decision whether or not to grant a motion for severance is committed to the discretion of the trial court. Arnold v. United States, 511 A.2d 399, 404 (D.C.1986). We "will overturn the trial court's decision to deny a motion for severance only when the appellant makes a clear showing that the trial court has abused its broad discretion." Cox v. United States, 498 A.2d 231, 235 (D.C.1985). "In order to establish the trial court's abuse of its broad discretion in denying the severance, the appellant must show the most compelling prejudice, from which the court would be unable to afford protection if both offenses were tried together." Bailey v. United States, 10 A.3d 637, 642 (D.C.2010) (citation and quotation marks omitted). "`The most compelling prejudice' does not encompass all prejudice, for there is the possibility of prejudice whenever similar offenses are joined in a single indictment of a single defendant." Id. In seeking a reversal of the trial court's denial of a severance motion, the appellant must demonstrate more than that he would have stood a better chance of acquittal had the charges been tried separately. Id. at 643.
Workman moved for severance, arguing that he would be prejudiced by a joint trial. The trial court denied the motion because it found that the evidence in the two trials would be mutually admissible,
We hold that the trial court did not abuse its discretion because despite ample opportunity, Workman failed to make an adequate proffer.
Id. (citation omitted); see also Shotikare, supra, note 3, 779 A.2d at 340 (upholding a denial of severance where evidence was mutually admissible and defendant failed to make an adequate proffer). To warrant severance, Workman must present more "than [his] desire to testify as to one offense but not another." Fields v. United States, 698 A.2d 485, 490 (D.C.1997) (citing Roy, supra, 652 A.2d at 1108); see also Garcia v. United States, 897 A.2d 796, 802 (D.C.2006) ("[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.") (citations omitted). Stating a bare desire to testify on one charge, but not another, is "simply not enough." Id.
Workman had ample opportunity to make a sufficient showing of prejudice, and the court's ruling did not "lull" him into not making a proffer.
A trial court has broad discretion in fashioning jury instructions, and refusal to grant a requested instruction will not be grounds for reversal "so long as the court's charge, considered as a whole, fairly and accurately state[d] the applicable law." Blocker v. United States, 940 A.2d 1042, 1049 (D.C.2008) (internal quotation and citation omitted). In this case, the trial court did not abuse its discretion because the instruction fairly and accurately stated the applicable law.
Workman requested that the trial court instruct the jury that while motive was not an element of any of the offenses, it could "consider the absence of a motive as support for the defendant's innocence." The trial court chose to issue what it considered a more "balanced" instruction, that the jury may consider "the presence or absence of motive in determining whether the government has proved the defendant's guilt beyond a reasonable doubt." Workman argues that the issuance of the instruction constitutes reversible error because it "essentially told the jury that the lack of motive was a neutral factor that could be disregarded." We disagree.
"A trial court `need not give the instruction in the precise language that is requested.'" Payne v. United States, 932 A.2d 1095, 1101 (D.C.2007) (quoting Campos v. United States, 617 A.2d 185, 187 (D.C.1992)). Here, the trial court instructed the jury accurately. The instruction by no means tells the jury to disregard lack of motive—it tells the jury that it may weigh the presence or absence of motive in assessing whether the government has proved its case. Cf. Tyree v. United States, 942 A.2d 629, 641 (D.C.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1612, 173 L.Ed.2d 1000 (2009) ("Although the trial judge should give a timely-requested instruction that presents the defense's theory, the purpose of the judge's instruction is not to repeat and advocate for the defense theory, but to give balanced instructions on both parties' presentations and to convey to the jury that the defense's argument is recognized in law.").
Nevertheless, Workman cites cases where we have held that evidence demonstrating a lack of motive is admissible and argues that a lack of motive is "quintessentially exculpatory." See Martin v. United States, 606 A.2d 120, 128 (D.C.1991). As such, he argues that the language in the instruction should have been more forceful. We rebuffed a similar contention in Bright v. United States:
698 A.2d 450, 458 (D.C.1997). As in Bright, we find no error in the trial court's decision to issue an instruction that told the jury it could weigh the presence or absence of motive while assessing reasonable doubt, even where the defense requested stronger language.
Because the trial court did not abuse its discretion by denying Workman's motion
Affirmed.
More recently, however, we have suggested several times that where a defendant makes a sufficient showing of prejudice, his desire to testify regarding one charge and not another may warrant severance, even where the evidence in the two trials would be mutually admissible. Shotikare v. United States, 779 A.2d 335, 340 (D.C.2001) ("Upon a sufficient showing of such prejudice, severance of counts may be required even where, as here, the criterion of mutual admissibility of the evidence in separate trials is met."); Roy v. United States, 652 A.2d 1098, 1108 (D.C.1995) (noting that even where evidence is mutually admissible, "Cross suggests[] that an accused may be prejudiced if he is effectively compelled to testify on one count upon which he wishes to remain silent as a result of the joinder of several offenses for trial"); Roper v. United States, 564 A.2d 726, 731 n. 9 (D.C. 1989) ("While it has been said that where offenses are mutually admissible, there can be no harm in trying the offenses together rather than successively, because in either event the jury will hear all about both crimes, this may, in fact, not be true in all cases. One situation where this might not be so, for instance, would be in a case where the defendant wishes to testify as to one offense, but does not wish to testify as to another.") (internal quotation and citation omitted).
Because we affirm the trial court's decision based on Workman's conceded inadequate proffer, we decline to reach the question of whether or not the trial court correctly applied Leasure and Horton in this instance.