Bartley v. United States

approximately minutes ear- the store seven NEBEKER, Before MACK and pro- in They lier. had walked around STEADMAN, Judges. Associate section, left the store without duce but had NEBEKER, Judge: Associate making purchase. Charles now observed a standing men near the door to the Appellants George Bartley and Peter the two were in a six count indict- Hackett office, checking looking around and a robbery, 22- ment with armed D.C.Code §§ wearing. one of the men was watch that (1981), -3202 and two counts each of Fay Sampson, the assistant point, At that armed, assault with intent to rob while id. manager, entered the booth. As the door 22-501. Each of the six counts was § her, men, closed one of the later behind charged alternatively, being alleged it that Hackett, appellant attempted identified as appellants pistol, were armed with either a knob, grab door was unsuccess- 22-3202(a) or pistol id. with a or imita- ful as the door closed and locked. Hackett thereof, They guilty tion id. were found jumped up then onto the booth and at- robbery opera- armed while armed an with tempted top of the door. to crawl over pistol, ble two counts each assault Charles, realizing something that was deadly weapon.1 appeal, they with a On amiss, away started to walk from the booth admitting claim in that the trial court erred robbery evidence of another armed He commit- the rear of the store. was towards Maryland. ted in They them also con- however, man, by the later stopped, second tend that the court its discretion in abused Bartley. Bartley, appellant identified as refusing impose govern- sanctions on the waistband, told exhibiting pistol a his preserve tape ment for its failure to Charles to come back. recording of a 911 call made one of the booth, Sampson, who was alone victims of the robbery the District of she a hand was about to exit when saw Additionally, they Columbia. claim that top of the door. She come over the shoved the evidence that was insufficient show door, exit, stopped and tried to but was pistols opera- used in the who, finally Hackett, “wavpng]” gun, ble. court mis- or- And that the trial his stated the law on of intent its final Sampson back inside. Once he and dered jury. instruction to the affirm. We booth, de- Sampson were in the Hackett mail- money. manded He reached I money bag Sampson put and told Robbery The Saferight minutes, inside. For the next two or three gun, Samp- he and Hackett held his while 21, 1983, September the afternoon of On mailbag. store, pans into the emptied son the cash grocery a discount automatically granted In- door locks as it closes. 1. The trial court defense motions money assault with intent to rob dismiss the four charges. are a safe which holds side the booth However, jury desk, was instructed as to register pans, cash and a file cabi- on the lesser included offense of each count mailbag kept hanging on the back net. A deadly weapon. assault with a approximately p.m. 9:30 each the door until emptied evening, its contents are when front of the The office is located near the placed in mail. consists of a booth with seven foot store. high It walls, single steps up lead to a and two During time, Hackett pounds, short, was no more close-cut hair and a full away than a foot Sampson.3 from beard. He wearing gray jack- sweat et, jeans blue and was armed with a small Tippett,

Charles produce manager, black Tippett revolver. heard the commotion in unable to de- the office and any started scribe telephone physical toward the to call the characteristics of the police. Bartley approached Tippett from robbers.

behind and him “stay told out of it you

unless get want to hurt.” Soon there- II after, began customers to come into the store. prompted This Bartley to warn The Giant Robbery Food Store (who booth) Hackett was still later, One week yelling; on the afternoon of “[m]anager, manager, Sep- gotwe com- pany. 28,1983, It was getting busy Bartley tember down and Hackett were [sic] here.” emerged Hackett then from apprehended robbing after the Giant Pood booth Bartley and he and fled out the front store located at Riverdale Plaza in Prince door and around the back of the store. Georges County, Maryland. day, On that They running were last seen over a hill Hilly cashier Wilda way was on her to the behind the store. Bartley up her, office when came behind Bartley After and Hackett had gun made stuck a into her back and told her to good store, escape their from the Sampson step into the Hilly being office.6 As was police called the and described both rob office, forced into the she noticed another bers, using supplied by information Tippett man standing at the office door. Once to describe Bartley.4 police A radio run inside, Bartley Hilly Tilly, told and Revas containing description of the robbers was another employee already who was in the then broadcast.5 office, mailbag door, to take the off the Detective Vernon Jones arrived at the empty contents, its fill money and it with Saferight approximately twenty minutes pans from the cash in the safe. robbery after the and Samp- interviewed Hilly Tilly complying While and son, Charles, Tippett. and Sampson de- Bartley’s empty safe, with demand to scribed the robber who came into the booth Taylor, employee, Lorenzo a third started twenties, as a black early male his about investigate towards the suspi- office to tall, six feet pounds with close cut hair activity going cious ap- on inside. As he and no facial wearing hair. He was a blue office, proached the he saw Hackett stand- plaid shirt, jeans blue and was armed with ing outside the point, door. At that with- a small revolver. Charles described the being Bartley out seen either robber or Hack- who held him Tippett gun- ett, point male, Taylor as a ran twenty-three black to the rear of the store twenty-four old, years tall, six feet one inch police.7 call the Sampson seeing 3. recalled Hackett earlier in the two individuals had robbed both stores. How- ever, walking store, store. While Safeway behind the office a few the robbers of the unlike here, robbery, Sampson ap- appellants moments before the having were described as been proached by Saferight shotguns. Hackett and asked if car- armed with not, replied they ried watch batteries. She did suggested tiy that he another store. 6. The office in this store also a small booth registers near the cash in front of the store. It 4. fact, Sampson Bartley. mailbag hangs never saw she was contains a safe and a on the robbery anyone unaware until after the back of the door. other than Hackett was involved. Taylor Bartley had seen and Hackett in the 5. Some initial confusion surrounded the radio store earlier. Five or ten minutes before the Apparently robbery, Taylor appellants broadcast. there were two robber- had observed in an day. robbery "staring space." Taylor ies that at the store aisle into As walked time, them, robbery, Bartley products. and another close in of a Safe- asked for some Jello individuals, way Taylor pointed display store. Four different two at to the Jello and contin- store, Taylor thought ques- each were involved in these two robber- ued down the aisle. However, apparently given Bartley ies. broadcast created tion was odd the fact that directly display. some initial confusion as to whether the same Hackett were in front of the plan embracing Officer Steve Grimes of the Prince Geor- common scheme or County patrol ges Police was on near the or more commission of two crimes so Shopping Plaza he Riverdale Center when related to each other that regarding other, (5) received broadcast one tends to establish He the rear of of the Giant store. drove to person charged with center, where, shopping less than a the commission of the crime on trial. broadcast, receiving minute after Bart- impor- When the evidence is relevant and ley directly path, away from ran across his issues, tant to one of these five it is chase, Bartley the store. After a short that the conceded apprehended as he climbed into a car outweighed by proba- effect already Hackett was seated. Re- which omitted; empha- tive value. [Footnotes from the car small hand- covered were two original.] sis guns mailbag, contained The admission of other crimes evidence currency. Both rolls of coins and Hackett depend presence “need not of one charges Bartley pled guilty to the aris- similarity the court can con- distinctive ing robbery. Maryland out of the totality sider the of the factual circum- which, amalgamated, lay stances a suffi- Ill cient for admission under basis the Drew trial, Prior to the States, doctrine.” Gates v. United sought introduce the evidence the (D.C.1984); A.2d v. Unit- Warren grounds Maryland robbery on the that it States, ed identity the showed the robbers and a probative must value evidence plan. Appellants common scheme or ob weighed against its effect. then, now, jected grounds they as do on the Willcher v. United any way that the two crimes not in (D.C.1979). We will reverse the trial Rather, unique. appellants argue that only court’s decision to admit the evidence these robberies were committed in a man so, if it was an abuse of discretion to do suggest ner any pair that would itself to supra, Gates v. United enterprise. who considered such an So for it is conceded undue that viewed, argue appellants, Maryland the outweighed by prejudicial effect robbery offers no relevant evidence as to probative value. Drew v. United identity either or the existence of a com States, supra. plan. disagree. mon scheme or We issue, dealing with this the trial court starting point Our is Drew v. United phrase parties have used the “com- U.S.App.D.C. 11, 16-16, plan” mon scheme or as an alternative the- (1964), F.2d 89-90 which sets forth the ory Maryland store relevant concerns: the evidence of that rob- event. We view principle long standing It is a in our bery, particular way is the in which it that law that evidence of one is inad- executed, identity. It is as prove disposition missible to to commit commonality detail jury may from which the infer “plan/scheme” particular reveals that the defendant committed the crime knowledge layout use of office that is charged. juries Since the likelihood that unduly prejudicial. than more improper inference is will make such an identity note that was an issue of con- We high, presume prejudice courts and ex- line-up cern misiden- since there had been a clude of other crimes unless evidence tification one witness and unsureness can be admitted for some evidence identity by others. substantial, legitimate purpose.... occurred in the afternoon Evidence of other crimes is admissible Both robberies intent, (3) (1) motive, (2) grocery by the Giant Food relevant to stores owned when accident, (4) Both had similar floor of mistake or store chain.8 stores absence factor, suggest By appellants our reliance do not mean to were aware we office, plans, as insofar which con- court instructed them on the limited use of safe, pans tained the store’s cash and a concerning Maryland rob- mailbag convenient in a booth was located bery. Third, prior receiving any testimo- oper- the front of the The modus store. ny relating the Maryland robbery, the andi in in both robberies was same: gave court cautionary instruction to the each, store, entered men loitered jury, again emphasizing the limited use of question awhile and asked a of a store Fourth, government, evidence. employee. Then one of men forced his closing its argument, mentioned the limited way into office at gunpoint, while the evidence, use of the and referred the jury directly waited outside the office to the previous trial court’s instructions. office, acted as a lookout. Once court, Finally, charge the trial in its final the robber demanded that the cash in the the jury, again emphasized that the evi- emptied safe be mailbag, into the store’s dence was to be used determine cases, readily which in both available plan, or common scheme or and for Finally, door inside office. when no other purpose. fled, they robbers out the ran front prophylactic steps door These and around to the rear of the taken building. during dire, court and counsel the voir significant Also the fact both rob evidence, prior presentation to the beries occurred within week of one each instructions, closing argument and “could See, e.g., other. Gates v. United jurors’ reinforce minds that the (rape 481 A.2d at 123 and murder separate incidents were the other days later); followed assault nineteen only crimes evidence was for the admissible States, Brooks v. A.2d United 448 257 prescribed, purposes.” limited Gates v. (D.C.1982) (rapes occurring days nine States, supra, United 481 A.2d at 124. apart). entirety, in Taken their “the calcu Accordingly, we conclude that the trial lus of these factors establishes sufficient court in basis did not abuse its discretion admit- identity [prong] for the ... of the States, ting Drew Maryland robbery. test.” Gates v. the evidence of the United su pra, 481 at 124.9 addition, In steps numerous were taken IV during impress upon the trial to the jury Appellants that the next contend the limited use to which the evidence could failing trial court abused its discretion to put. points, At several the jury was impose government sanctions fol told Maryland that the evidence of the rob- lowing government’s to pre failure

bery intent, only was admitted to show Specifically, serve certain material. Jencks plan, or common scheme or and not appellants government’s that the era claim predisposition show a toward criminal containing recording Fay sure of tape acts. Sampson’s emergency phone call to the First, jurors during were examined police striking Sampson’s warranted the voir dire as to whether felt that each he or disagree. subsequent testimony. We trial apply pre- she could Second, duty preserve immediately scribed manner. has the fol- lowing empaneling jury, by of the statements of witnesses covered States, (D.C.1987), corporate large supermarket structure of a 9. Ali v. United 520 A.2d 306 However, chain. the evidence established that contrary is no not to the for here there shift of supermarkets all of the owned Giant Food appellate theories level or at the plans had similar floor insofar as least ruling precluded which earlier trial court location and structure the store office. It is Moreover, limiting this case instructions. although Bartley reasonable to conclude that presents identity predicate for the evi- a clear and Hackett have been unaware predisposition dence Ali whereas involved stores, corporate relationship between two concurring other deviate sexual acts. See the they resulting of the aware similarities in Pryor Judge opinion Judge Chief therein design design as facilitated criminal ven- their Rogers. ture. Act, (1982).10 supports erased the trial issue here were Jencks U.S.C. States, finding merely that the erasure was Montgomery v. United 384 A.2d court’s the era- an administrative decision. While duty This extends 661-62 regrettable, conclude that the sure was we prosecutor, not to the but “accompa- loss of the statement was whole, including investi- government as a judgment or of a nied motive bad bad Id. gative agencies. refusal to al- degree could warrant duty preservation is violated when give testimony iden- [eyewitness] an low destroyed or as a such evidence lost Williams tifying robbers].” [one negligence purposeful result “of either supra, 385 A.2d accompanied by either mo destruction bad addition, any possi- In conclude that we Id. Unit (quoting judgment.” tive bad appellants may have suf- prejudice that ble Perry, ed States v. tape fered as a result of the erasure (1972)). 99, 471 F.2d degree sufficient to exclude not of a destruction, finding improper A how testimony. Sampson’s ever, require sanctions auto does not regard appellant Bartley, be- With Cotton v. United imposed. matically be description given by of him cause the Unit (D.C.1978); from Sampson telephone was not over Perry, supra, U.S.App. ed States v. recollection, from that of her own Rather, 100, 471 F.2d at 1068. once D.C. at Tippett, tape would have been Charles preservation is a violation of the rule of regard to impeachment of no value. With found, totality “the of the circumstances” that a appellants, the record reveals both determining must be considered what made avail- transcript of the 911 call was apply. Montgomery v. United sanctions to addition, prior to counsel to trial. able supra, Williams tape of provided also with a counsel was (D.C. call, Sampson’s that followed the radio run 1978). has When a discoverable statement the first officer to inter- and the notes of destroyed, been lost or the trial court twenty the scene Sampson on view weigh exercising “must certain factors robbery. minutes after the its discretion whether to strike a witness’ States, although Fields v. United testimony.” 368 that the evidence We conclude overwhelming, (quoting Hardy (D.C.1977) guilt 541 of in this case was A.2d here, all (D.C. impose Jencks sanctions where United to for to counsel 1974)). (1) of the above was available The factors to considered are be cross-examination, would be the effective degree negligence of or in bad faith the unavaila- type of “automatic reaction to volved, (2) importance of the evidence as “would restrict bility of a statement” lost, (3) guilt the evidence of adduced quest truth.” enhance the States, supra, rather than at trial. Cotton v. United Washington v. United Thus, 869. assess the we must 560, 563 degree suffered the defense tape, erasure of the as a result of the V its the trial court abused decide whether that the evi Samp Appellants also contend deciding in not to strike discretion jury to permit to dence insufficient testimony. was son’s weapons in the rob that the used conclude nothing suggest in the record to There bery operable. were tape of the result that the erasure Bartley entered the Hackett and conceal or When faith or a desire to of either bad store, weapon displaying a each contrary, the fact destroy evidence. To the demands, must they both up back his tapes in to the one at to that other addition assume, impose not to vet non the court's decision parties, that the as have the 10. We following recording produced cordingly, required to be its a contained statement sanctions nonpreservation 3500(e). pursuant Ac- recording. to 18 U.S.C. of the correctness we will address issue, have however, intended that their victims today’s believed implicate does not the weapons capable being gray were discretionary or areas of the law. discharged. it my view, Just as would have been majority’s disposition Saferight employees reasoning reasonable for the to are irreconcilable with the lead appellants’ weapons oper- Drew v. Unit believe that ing jurisdiction. were case able, ed so too would it reasonable for U.S.App.D.C. 11, 18-19, Morrison v. F.2d jury (1964) to conclude likewise. (two 92-93 robberies of (D.C. High’s Dairy stores committed weeks two 1980). apart on summer afternoons when no cus tomers the stores an intruder Appellants’ final contention is that sunglasses who wore fit such “an into obvi plain trial court committed error in pattern” ous joinder tactical two structing jury “may” it infer that prohibited offenses a on mutual admis person ordinarily a intends the natural and sibility theory). compulsion I feel a to probable consequences of his acts. This therefore, write, attempt to clarify some Hogan, claim has no merit. See Lannon v. engenders.1 confusion this doctrine cert. de (1st Cir.1983), F.2d nied, 465 U.S. 104 S.Ct. (1984). L.Ed.2d 136 I. Accordingly, judgments of conviction A.

are danger majority’s The approach Affirmed. questions these is that it runs the risk of converting jurisdiction the law this from MACK, Judge, dissenting: Associate presumption a the exclusion good Undeniably a deal of presumption confusion sur- crimes evidence of admis- rounds showing of other sibility upon simple of some evidence. The name similarity charged of the doctrine itself between un- scope applicability its crimes. The contribute conversion can result to the confusion. resolution of the this extraneous the admission of evi- scope applicability, proof As to underlying the name and der and RICO where felony proof enterprise, word “other" in the respec- so-called other crimes evi- of a criminal dence doctrine tively, necessary refers to a crime which is "other specified crime). than” the in the indict- complaint ment or which forms the basis strictly word “crime” not limited acts are, however, appealed conviction from. There crimes; however, por- acts which constitute "the First, two limitations of this definition. even if trayed minimally in the nature of must indictment, uncharged the crime is in the if it order criminal offense” in to invoke the doc- part surrounding forms a of the "immediate States, 761, trine. v. United 470 A.2d Wheeler crime, charged circumstances” the it falls (D.C.1983). 404(b) (utilizing 769 Fed.R.Evid. Cf. outside the “other” crimes evidence doctrine be- "crimes, acts”). wrongs, the terms more, or Further- intimately entangled cause it is "too with the not the "crime” need be established charged criminal conduct." it, Toliver v. but defendant's conviction “clear States, 958, (D.C.1983); 960 see Green convincing must demonstrate the de- evidence” States, v. United 440 Fur- A.2d 1005 uncharged perpetration of fendant's acts. thermore, technically even if the crime is un- Bussey, U.S.App.D.C. United States v. 139 indictment, charged in the (1970). if the "other” crime part is a crime which forms a Finally, under the other crimes evidence doc trine, the other crimes evidence doctrine is other crimes is offered as evidence of inapplicable. See Ali v. United guilt proof of on the substantive the defendant's (in (D.C.1987) 311 n. 5 a crime such as charged. of other crimes When evidence conspiracy, proof plan pattern of a impeach credibility, or of crimi- is offered to witness’ in activity provides nal cluding direct of one of the credibility of a who takes defendant stand, regarding impeachment elements the crime and thus invocation of the the doctrine evidence, plan" exception "common or scheme to the oth- evidence doc other crimes See, trine, unnecessary); e.g., er applicable. crimes evidence v. doctrine is E. Dorman United (en (D.C.1985) banc); 491 A.2d 455 Sher Uncharged Imwinkelried, Misconduct Evidence 2:10, (hereinafter (1984) (D.C.1983); § eh. 2 at er v. United "Imwinkel- (1981). (describing examples felony mur- § such as D.C.Code 14-305 ried") might appropriate. The so-called an them generating purpose the sole dence for “exceptions” predis- become: propensity of criminal inference type of crime commit a certain position to admissibility, magic formu- passports to analytical Three rather than another. plaintiff If lae, and shibboleths. in this direction. majority lead the flaws one prosecutor mentions [or more] adopt an accepted exceptions, the courts First, to an unre- majority resorts ad- policy routinely “open sesame” probative value” “prejudice fined versus analyzing the mit the evidence without determining admissibility. See ante test in depth. in logical relevance issue the ulti- question There is no at 695. mate, determining 2:29, admissi- general test 2 at ch. ImwinkelRIED, probative added). value.” “prejudice omitted) versus bility (footnotes (emphasis But, the nature of other crimes because of trial, Here, during before and such evidence, generally conceded that it is that the evidence jury told four times pro- always prejudicial and both evidence admitted Maryland of the Thus, degree. in the other to some bative “intent, identity or common show area, applica- an undistilled crimes evidence plan.” They were instructed scheme or “preju- generalized test such as tion of a On “exceptions” as well. three of these all begs probative the real dice versus value” government argues admissibili- appeal, the questions are: questions. The real identity and common ty on the basis is other crimes means of what inference seems to plan. majority scheme or in- guilt, and is that of identi- on the basis affirm the admission weightier independent of than ference in all this at 695. Not once ty. ante See self-generating, inherently any analysis of the has there been time propensity inference? theory by which the evidence underlying probative of the robbery is

Second, recognize Maryland majority fails to indepen- robbers of the presumptive irrelevance of other power to demonstrate acts, all, its obvious Uncharged are dent evidence. after propensity to commit collateral; possible they appellants’ to the his- are unconnected robberies.3 supermarket form torical events which the bases Thus, is not inher- crime. it implicit shotgun approach was must be overcome ent jurisdiction. See cases some earlier of other crimes evi- justifying admission States, 381 A.2d 1073 Bridges v. United dence, also, irrelevance.2 mutually (evidence rapes four (D.C.1977) identity or common Third, under either majority fails to deal with admissible exceptions); Gates use scheme can be characterized as the what best (D.C.1984) (govern- A.2d 120 admissibility. “shotgun” approach to of a previous rape/murder 168, 176, introduced 523 ment Bly, 215 Kan. State v. scheme intent and common identity, (1974). “shotgun” show Under the P.2d on the basis court affirmed and this possible so-called approach, several scheme). These cases identity and common general of exclu- “exceptions” to the rule con- wrongly To the decided. of were not hopes that one sion are asserted on the states Bussey, supra note recognize majority’s Perhaps failure to Drew, 271, supra, 118 presumptive the evidence is due F.2d at irrelevance of at 432 15-16, emphasis part on This to this court’s historic at 89-90. in some at In presumptive prejudice of the evidence. the deed, perhaps inadvertent- emphasis has on jurisdiction in this most of the case law greater appreciation of the ly from a detracted recognized presumptive prejudice of has the uncharged collateral. acts are fact that E.g., Graves v. United crimes evidence. other States, 1136, (D.C.1986); Camp A.2d 1139 evidence” My the "other crimes reference to 3. 428, States, (D.C. A.2d bell v. United robbery. Maryland of the to evidence relates 1982); Calaway v. United subject appeal will of is the (D.C.1979); v. United Crisafi robbery.” "Saferight the to as be referred denied, (D.C.), 439 U.S. 3 n. 2 cert. (1978); United L.Ed.2d 326 99 S.Ct. cases, trary, propensity predisposition; these the other both crimes or criminal and admitted, (2) properly evidence because legitimate the the value of unique operandi gener distinct modus and outweighs prejudicial inference the effect permissible ated the inference the self-generating propensity of the inference. perpetrators uncharged the crimes of were A proper understanding the of evidentiary one perpetrators and the same as the of the the functions of so-called Drew “excep However, charged crimes. the unexamined light tions” sheds considerable on how a unexplained and assertion those cases legitimate generated inference and exceptions that one or more of the other shotgun why approach can lead to ad partially could properly invoked is re missibility if gener even the inference sponsible today’s disposition, for which ated propensity.5 is fails to evidentiary isolate address the commonly It is believed that with the this basis for the of evidence. Drew, jurisdiction decision in this adopted Campbell Cf. “exclusionary” view of admissibili- (this systematically 450 A.2d 428 court ty of other crimes evidence. Under that rejected government’s “shotgun” argu view, of presumed evidence other crimes is ment that the other crimes evidence was inadmissible unless it fits within one of the motive, intent, identity, admissible to show “exceptions” general so-called to the rule surrounding circumstances motive, intent, of exclusion: absence of offense).4 accident, mistake or common scheme or “exceptions” It is not so-called plan, Drew, identity. 118 U.S. are necessarily mutually exclusive. Rath- App.D.C. at 90. F.2d While er, shotgun approach fundamentally is good law, Drew is and course remains engenders flawed because it a habitual re- not, purport- that case never is indeed liance on the mechanical invocation of one be, starting point ed to the analysis for “exceptions” or simultaneously more while of the of other crimes admission evidence. obscuring sequence logical true in- Instead, developed this court has a four proper ferences which the admission step approach questions to these to assure prejudicial extrinsic evidence is legitimate, non-propensity that a inference predicated. This obfuscation results in the generated. guide is approach also a perhaps unintentional of this admission evi- for assisting determining pro- when the dence propensity purposes. for legitimate bative inference value of out- weighs of the self- effect B. generating propensity inference. The introduction of other crimes evidence (1) justified gener presumption when In order rebut evidence exclusion, greater ates an proponent inference a defendant’s guilt independent prove likelihood of for a first clear and con- reason evidence must power vincing of the inherent of that evidence to evidence that the defendant was generate guilt perpetrator co-perpetrator an inference of based of the on here, ed, impossible observing govern- hope It is as I the word is avoid demonstrate shotgun approach conceptually descrip- ment's perhaps inappropriate utilization as a prosecutor occasionally some A instances. will evidentiary tion of the functions five "exceptions" relying invoke two more of categories in Drew. adoption on the trial court’s least one of fact, “exception” to Drew occurs a true quality generally high pros- them. Given the generated when inference the other District, ecution in the can be propensity, disposition or expected fully specific, legit- explain to more expressly and the evidence is admitted those theory imate or theories of relevance which purposes. Pounds v. United allegedly support the admission. (evidence (D.C.1987) previous sexual and com- intermittently contact between 5. I defendant/father will continue to refer to the theory plainant/child "predis- "exceptions.” admissible Drew list as the word “ex- While position special par- ception” appropriately gratify with that captures desires the idea that victim”). presumptively other crimes evidence is exclud- ticular uncharged E.g., crime. United nothing States v. There is unusual or “extraordi- 1, nary” requirements. Bussey, supra U.S.App.D.C. Indeed, note about these 273, proponent’s (“the “burden” consists in 432 F.2d at 1335 dem- court should onstrating relevance, materiality, and inquiry, also have conducted an initial out lack of undue of the evidence. jury’s presence, to determine that convincing Without clear and evidence that the defendant was connected with the other uncharged defendant committed the convincing ”); ‘clear and evidence’ crime, simply the bad act is irrelevant: 479, Light see 360 A.2d possibly by persons committed other (D.C.1976). Then, proponent must than the probative defendant cannot be identify charged the contested issue of the guilt prej- defendant’s and the extreme crime to evidence of the un- Furthermore, udice is obvious. a contested directed, is, charged crime is the ulti- issue must be identified because other upon mate issue which the evidence of oth- evidence, like all evidence directed allegedly probable er crimes makes more toward of the substantive merits of guilt the defendant’s likelihood of on the is not unless relevant E.g., Graves, 2, crime. supra note probative of the elements of that crime.6 1140; 2, Campbell, 515 A.2d at supra note The identified issue must be contested or 430; Willcher v. United genuine “in controversy” because other 67, (D.C.1979) (“an uncontested, crimes evidence directed to an issue raised on which other [must be] merely immaterial or “formal” issue would received”). Next, crimes evidence could be marginal probative (since, by have value proponent indepen- must articulate an definition, uncontroverted) the issue is theory logical dent relevance: how the prejudicial great. its while effect would be contested issue in the case can be inferred otherwise, Stated if the issue to which the from the other independent crimes evidence other crimes evidence is directed is not power of its generate an inference of controversy, prejudicial per effect will defendant’s propensity predis- or criminal outweigh probative se value. See position. Drew, supra, Graves, supra note 515 A.2d at 1140 (evidence 331 F.2d at 90 of other (“[i]f other crimes evidence were admissible crimes is excluded unless “that evidence simply example] because intent must [for substantial, can be legit- admitted for some proved, be whether the defendant contests purpose”); imate see Ali v. United not, inherently prejudicial it or then such note 520 A.2d at 310 n. Willch- routinely evidence would become admissi- er, (“unless ble, regard A.2d at 75 govern- without to whether the prior it”). evidence of really Finally, ‘bad acts’ is ment needed the re- introduced legitimate quirement indepen- for a purpose, probative theory of relevance its val- presumed propensity preserves principle ue is dent of outweighed guilt effect”); is determined acts not charac- prejudicial see J. ter and assures that the evidence is more (1986) (here Weinstein, Evidence H 404[08] probative prejudicial. than (describing inafter propo “Weinstein”) burdens). nent’s Finally, the trial court analytical approach While this encom- independently must still determine whether passes nothing more normal evidentia- than effect of the out evidence ry requirements, express articulation weighs Graves, supra its value. requirements these and an insistence (citing Campbell, note 515 A.2d at 1139 compliance approach with the are neces- 430); supra note 450 A.2d at Minick v. sary doctrine the other crimes evidence (D.C.), good excluding very for one reason: evi- — denied, U.S. -, cert. 107 S.Ct. particularly dence of other crimes— (1986). very 93 L.Ed.2d 76 simply similar crimes—can counter- course, evidence, garding impeachment 6. Of oth- be relevant to credi- and not the doctrine, bility applicable. addition to relevance to substantive er crimes evidence case, however, 1, supra. merits. In that the doctrine re- ap- Following steps theory, by intuitive. in this which the evidence of other proves issue(s). crimes the contested proach engage can assure that trial courts balancing process might in a which other- plan” “Motive” and or “common scheme intuitively, wise but inadvertently, he theories, independent are such propen- of a weighted admissibility. in favor of sity theory, by which contested issue proved. may “identity” Unlike and “in- “exceptions” general- The so-called Drew tent,” no intrinsic relevance inheres in ly part form of second and third both the proof of a or a motive common scheme steps “Intent” analysis. of the and “identi- proof charged since of the elements of the ty” possible in refer to contested issues proof will crime not include of these facts.8 any given intrinsically proof case. Their is Proof of a motive or common scheme is not proof charged relevant of the itself, rather, in an end an intermediate ele- identity generally since intent and are step proof of toward the ultimate issue. every Guilty ments of of crime.7 state independent introduction of crimes is identity possi- mind and are thus two of the if, if, justified proof of the motive ble inferences which other ultimate crimes proves perpetrator’s or scheme identity, generate, may depending upon evidence intent, or charged his commission of the or what issue issues are See raised. legitimate following crime means of the Willcher, supra, (“[wheth- at 75 inference: the evidence of the motive or purposes er an issue has been raised for of probability scheme increases the of a de- receiving other depends crimes evidence participation charged in fendant’s upon both the elements of the offense setting apart him from who others had charged presented”). and the defense no such motive or scheme. Therefore, simply explana- and without operandi,” like “Modus motive and com- allege tion that of evidence another crime scheme, an independent mon refers to theo- or “identity” relevant “intent” on logical ry of which relevance a contested charged say nothing crime is to how about may oper- issue be inferred. While “modus relevant, is, by it is means what specifically in andi” is not enumerated inference the other proves crimes evidence list, historically practice, Drew identity Regardless or intent. of whether “identity” exception has come to mean the identity intent or some issue and/or other operandi theory proof identity. modus issue(s) case, pro- is the contested a See, supra Campbell, note e.g., ponent of other crimes evidence must artic- Warren v. United theory, independent ulate a propensity a introduction Furthermore, RICO). very Intent is sometimes an element statu- a elements of which, crimes, tory regulatory pur- or for these number of will include ele limited Furthermore, See, 245(b) poses, unimportant. e.g., intent ment motive. 18 U.S.C. (1982) (prosecution prove injury does af- not become a contested issue until an must willful color, challenged race, See any religion firmative defense has person intent. his "because of case, any The actus reus would be the other origin"). In national infra. major possible any given analogous contested issue in case an element of the situation where rea, reus, motive, proof since the mens the actus charged crime is of other crimes perpetrator are of the defendant as the establishing illegitimate motive would major proof three elements of theory of on a direct relevance. See admissible course, any Franklin, Of other crime. the assertion of States v. 1187- Cir.) (evidence (10th affirmative defenses indicate that another previous on assault (such rape) issue as a crime like couple consent in prove interracial admissible to motive (1982)), 245(b) contested issue. prosecution U.S.C. § under 18 denied, cert. 464 U.S. 104 S.Ct. however, (1983). proof Generally, 8. If L.Ed.2d 137 crime does include scheme, proof plan common law descendant crimes within this the other crimes jurisdiction simply inapplicable. not include motive as an evidence doctrine is court’s will Therefore, case, of the "other element crime. in accordance so-called and mislabelled here, analysis proponent theory crimes” with would be admissible identify must contest direct relevance the "other” crimes because allegedly part infer form a crime. See note ed issue of motive text, (citing examples entially proves. conspiracy as such infra. if, justified merely evidence of a modus is and only tested issue and assert that the if, generates following legitimate it the in- probative introduction of “is the evidence uniqueness ference: the of the motive, modus plan, of” scheme common or likely highly makes it that one and the although operandi, modus none of these perpetrator charged same the committed crime. See charged are elements the of uncharged Ali, thereby establishing and crimes supra note (evi- 520 A.2d at 310-11 identity perpetrator.9 defendant’s as the alleged dence of abuse of sister sexual of complainant improperly introduced on a Therefore, legitimate, non-propensity in- plan theory common scheme or because may generated through compli- ferences be plan” “common not an element of the four-step approach developed ance with the offenses only and therefore the by this through court an and under- probative value of the extrinsic evidence on how the Drew standing of “exceptions” the contested the actus reus generation relate to the of issue of these inferenc- Second, propensity). proponent es. the shotgun approach may short-circuits process First, independent the ways. identify theory a number of fail to of proponent may identify logical fail to simply a con- relevance and assert completing picture, 9. For the sake of “ab- evidence of intent. If the is unsuc- sence of mistake or accident” refers to the generating re- cessful in inference an of criminal butted of an affirmative defense based on mis- intent from the factual circumstances surround- inextricably take or accident. It is interwoven ing only purpose then the for the excep- with invocation of the so-called “intent" government’s case-in-chief introduction of other tion. A defense on based mistake or accident is theory crimes evidence based on of "intent” is possible way one in which “intent” rises to the generation of the inference that because level of a contested issue in a case. A defense before, defendant acted with criminal intent he based on non-criminal or “innocent” intent is, acted with criminal intent time. That of Graves, way. supra would be another note Cf. course, the inference forbidden Drew. (defendants 515 A.2d at 1138-40 denied alle- While, general, only way in which in- gations purposes soliciting prostitution of for of through tent becomes a contested issue is by asserting presence their innocent on the defenses, obviously, giv- assertion of affirmative street); Willcher, supra, 408 A.2d at 75-76. here, my analysis en the same cannot be said words, In other excep- so-called "intent respect identity with of the elements or actus generally may tion" not be invoked unless an reus. challenging affirmative defense intent calls in- through If intent contested becomes a issue Graves, question. tent supra into See note 2 defense, the assertion of an affirmative the "ab- (evidence prior soliciting purposes of acts of "exception” per- sence of mistake or accident” prostitution government’s not admissible in if, mits the similar introduction of crimes and Willcher, exception); case-in-chief on intent su- if, "theory probabilities” or "doctrine pra, (”[t]he government 408 A.2d properly generated: "multiplying of chances” inference waited prior until cross-examination to elicit the instances of the same result” eliminate "the ele- Appellant opened crimes evidence. the door perceived ment of innocent intent... until it is ...”); through his defense United States v. Mil- that this element cannot ex- [innocent intent] ler, (7th Cir.1974) ("unless and plain them all.” 2 on Evidence § 302 Wigmore affirmatively until the defendants con- [have] (Chadbourn 1979); see also Imwinkelried, rev. intent,” tested their other evidence based 1, 5:05, ("the supra 5 at note ch. more often govern- intent not be introduced in the reus, performs defendant actus case-in-chief). ment’s Unless an affirmative de- smaller is the likelihood defendant acted asserted, fense is will intent remain a "for- mind’’); with an innocent 2 Weinstein, state proof mal” issue in the case: the defendant’s Graves, 404[12], supra, generally ¶ state of mind will be inferable from 1140-44, Willcher, supra, 515 A.2d proof of the defendant’s commission of the actu- (discussing fully 408 A.2d at 75-77 more al acts. degree exception). similarity "intent” This is true because the nature of crimes, uncharged mind, between the intent. The defendant’s state of unlike perpe- incidents, proximity number of similar either the actus reus or the trator, Rather, all remoteness in time are factors in deter- subject proof. is not direct mining whether the similar crimes can be intro- always proved circumstantially intent must Willcher, negate totality duced to innocent intent. See from the of the factual circumstances (”[t]o probative 408 A.2d at 76 surround the commission of the crime. intent, however, prior Jones criminal conduct 931-32 (D.C.1987); usually must offense similar in kind Shelton United involve an reasonably charge time to the Evidence of the and trial”). close in factual predicates equivalent antecedent introduction identity. faulty. Both claims are Be- identity, although of intent or nothing unique in cause the manner of the those are elements of every almost crime. commission of both these gener- robberies Third, proponent may give the “illu- ates an inference one and the same set compliance sion” of with the iden- rules perpetrators committed both crimes and tifying the contested issue articulat- plan interlocking no because true the two relevance, ing theory independent an generates an robberies inference that these alleged “independent” theory will appellants, opposed persons as to other support generation legitimate, the a non- of plan, had no who such committed the propensity guilt inference of on the con- only the inference by left here.10 See tested issue. Such case is the the the introduction of evidence of the Ma- II, Part ryland robbery appellants’ infra. is propensity to supermarket commit robberies.

It must that propen- be remembered the sity self-generating. is inference When other crimes evidence is introduced without A. regard process non-pro- to the which by repeatedly This court has and vigorously generated, pensity inference what be appropriate articulated the test for admissi- illegit- remains —all that the remains —is bility operandi under the modus theory of propensity

imate inference. proof identity. Admissibility permit- of is ted when:

II. the evidence shows that the defendant Identity indisputably is the contested is- nearly has committed crimes so identi- sue in case.11 majority’s this The claim is cal method present it is likely the Maryland robbery the of evidence by offense has been committed him. proof as admissible of of States, v. Bridges supra, United robbers use of the modus 381 A.2d operandi theory proof of of identity. (citing The at 1075 McCormick on Evidence government's (2d 1972)) claim is that not does at 449 (emphasis 190 ed. add- § cited in Artis v. United operandi theory also, ed), apply, modus 505 Campbell, supra 52, (D.C.1986); plan theory common scheme or of 56 A.2d course, probative 10. Of errors in introduction strate that the value of the evidence mutually outweighs prejudice); Super.Ct.Crim.R. are evidence not exclusive nor Indeed, 12(c) (government "may give this short list exhaustive. one of notice the de shortcomings approach specified of a like the of its to use substantive fendant intention evidence trial"). Imwinkelried, shotgun disregard approach proce supra is its for the at note 1, might necessary (procedural dural be §§ mechanisms 9:01-9:68 limitations evi acts); compliance require uncharged ensure 2 with the threshold dence defendant's Wein admissibility. approach may ig supra, ("procedural aspects” stein, ments of The 404[19] ¶ evidence). probative prejudice nore that versus value incapable being sometimes ascertained 1, Bussey, supra advance of the trial. See note "identity” majority 11. The characterizes as an 273, (court U.S.App.D.C. concern,” 139 at F.2d at 1335 432 rather than a "contested "issue is- inquiry should conduct an initial to determine if genuine controversy.” or an sue” "issue Ante perpetrator co-perpetrator defendant was perhaps Such at 695. a characterization will uncharged convincing" crime "clear unfortunately further contribute to confu- 2, Graves, evidence); supra at Every note 515 A.2d surrounding sion this doctrine. element (case-in-chief 1141 introduction other crimes an "issue of of a can be characterized as theory concern,” problematic evidence on intent because prove in that must position usually "the not be in trial court will every beyond a element reasonable doubt. Not probative element, however, decide whether the value of every can as be characterized outweighs controversy." genuine ... until or “in "contested” govern requirement court has rest of the heard that an issue be "contested" is es- response’’); ment’s but also is- case the defendant’s sential: evidence directed to an uncontested 205, 213 (5th Robinson, (since, marginal value United States sue would have denied, 1008, definition, uncontroverted), Cir.1983), U.S. S.Ct. the issue in cert. 465 104 1003, court, (1984) (trial self-generating effect when while the 79 L.Ed.2d 235 requested, great. must articulate factors which demon- would

705 431; Warren, supra, note 450 A.2d at purpose admitted for the identifying 436 A.2d at 832. thereof”); accused as the author Im- 1, 3:10, note ch. 3 at winkelried, expressions Each of the court’s several (“the prosecutor (1) must establish: both require of this test “uniqueness” in the crimes were committed with the ‘same’ or Thus, modus. showing of the concur- strikingly (2) similar methodology; and rence of “unusual and distinctive facts” is methodology unique is so that both crimes admissibility. Artis, sufficient to sustain (foot- can be criminal”) attributed to ‘one’ supra, 56; Cox v. United omitted). same, and the the modus must Or, be such that F.2d at 90. when the crimes committed person one can realistically ear- “signature” had a quality, admissibility is as perpetrator. marked Very simply: permitted. Warren, supra, Bussey, supra generic Proof of acts of 1, type the same note U.S.App. 139 support insufficient 271, permissive D.C. at infer- 432 F.2d at “Striking” ence that the acts performed by the similarity has also been used as the basis person. “same” for admission. Arnold v. United 335, 358 A.2d (D.C.1976) (en banc). 338 supra 1, 3:11, note ch. 3 at Imwinkelried, § Morris, R. v. (citing 23 Cr.App. 69, 54 Rep. Mere similarity is not and never has been (1970)). 80 sufficient. Other courts and all commenta- The majority’s test tors for uniformly agree uniqueness, or an very based on a degree low expression equivalent similarity. uniqueness, is the Absent is this long standing court’s appropriate re- test. question “The for the quirement uniqueness striking sim- court is whether the characteristics relied ilarity requirement that cannot be satis- are sufficiently idiosyncratic per- —a fied on the facts of this case.12 mit an pattern inference of purposes for proof.” 2 Weinstein BeegeR, Wein- The so-called similarities between these ¶ at 404—129-30 414[16] stein’s Evidence two distinguish robberies do not them from (1986). See also McCormick on Evidence many “which have come before this court (3d 190 1984) (the at 559 ed. § evidence is persons ... and for appel- which other than prove admissible “to by other crimes were convicted.” Bussey, supra lants] nearly accused so identical in method as to 1, 271, note U.S.App.D.C. at 432 F.2d earmark them as the handiwork of the points at 1333. The of similarity are “so accused”); 1 C. Torcía, entirely unhelpful.” common ... as to be Wharton’s Crimi- (13th 243 at 549-59 ed. Ezzell, United States v. nal Evidence 1972) (“[w]here (9th Cir.1981). Two men entered a committed novel particu- means or in a supermarket. One acted as a lookout. manner, lar evidence of gun another crime The other used a to demand cash from phrased (1970), Warren, 12. A similarity test supra, terms of has its 436 A.2d 821 and Cala origin in Samuels way, supra note 408 A.2d 1220. In neither (D.C.1978) (issue improper joinder McCray nor Warren was a test based on similar robbery two ity offenses McCray, supra, but court reasoned no enunciated. See 140 U.S. (“the undue App.D.C. because "the two were so sim at 433 F.2d at 1175 conduct proximate ilar and so in time as to tend to was 'so unusual and distinctive as to be like Gates, [appellant’s] Warren, identity") establish signature’”); supra, su 436 A.2d at 832 ("we pra, (the "nearly at 123 find sufficient similar modus must be identical in meth permit admissibility). od”). ities" to Calaway language Samuels and The court in used the purport rely Gates "significant Calaway, on United States v. similarities." McCray, U.S.App.D.C. 433 F.2d 1173 408 A.2d at 1226. employee charge money. perpetrators inference of sameness of foot, running Both men fled the scene is too remote.

around the store to the rear. Moreover, particular care must be used in translating “totality

The court’s reliance on the similarities of the circum- plans the stores’ floor stances” and office booths test contexts. Since committing overall manner of distinctive location of the stores’ store or constricted, mailbags bank robberies is operandi confuses the modus commis- sion of type necessarily of crime signifi- Giant food store chains lends with the pattern itself to an cantly unique obvious execution. appellants. less modus of A Factors such as the location of the completely factor outside the control of victim, type used, type of force appellants, such as the location of the mail- considerably in may vary murder or bags, appellants’ cannot be indicative rape cases, significant are much less modus. To the extent the other store and bank robberies which their might appellants’ factors indicate decision against very are committed nature stores chains, majori- to rob Giant food stores usually by and banks armed felons. ty persons itself must many concede that appellants respon- than have been reason, scope For that of admissibili- supermarket sible robberies. ty of independent evidence of store and Drew, supra, U.S.App.D.C. very bank narrowly robberies has been (fact F.2d at 93 that both robberies were drawn this court and other courts. against High’s Drew, 18-19, committed Dairy stores not significant (two High’s too since type stores of that F.2d at 92-93 robberies robberies). apart particularly Dairy “are stores committed two weeks on vulnerable” to summer afternoons when no customers Furthermore, significant dissimilarities by were in the stores an intruder who wore between the two robberies “undermine[] sunglasses, tacti- fit into such an “obvious identity” force the inference of and pattern” joinder cal of the two of- against militate admissibility. United reciprocal prohibited fenses was on a ad- (5th Myers, States v. 550 F.2d missibility theory); Bussey, supra note Cir.1977); Drew, supra, U.S.App. see at 432 F.2d at 1333 (distinction D.C. at 331 F.2d at 93 be- (two twenty occurring within robberies degree tween of force used “takes on en- other, in minutes and of each three blocks significance” hanced in rejecting mutual store, which two or three men entered a admissibility). The trial court found as a employee question, asked an ordered a guns matter fact that the used in the floor, present those mon- to lie on the took robberies were not the same. Further- ey register, finally from the and cash more, crime, charged in the the lookout backroom, locked the victims in a “did up personnel thereby rounded other store rob- particular pattern evince a to the two preventing police Maryland a call. In the distinctly beries mark them as which would robbery, neglected rounding up the lookout men”); same 'handiwork’ of the personnel other store which resulted in a Ezzell, supra, 644 F.2d at 1306 States v. police. call to the (conduct of was not suffi- two robberies majority attempts support The its bizarre”); ciently “peculiar, unique or holding concluding by that “taken in their at v. 550 F.2d Myers, United States entirety,” a calculus of the similar factors (“an early robbery of an afternoon a establishes sufficient basis for admissibil- outlying highway, by on bank situated a ity. “totality Ante at 696. While a wearing gloves revolver-armed robbers type properly masks, circumstances” of test can stocking bag carrying for the determining admissibility loot, considered in un- is not such an unusual crime that it theory, der the modus that test does not prove” identity); tends to v. United States inapplicable uniqueness require- Webb, (9th Cir.1972) render Uniqueness (two ment. perpetrators must arise from the robberies which the composite Otherwise, pis- types of similar features. wore masks and used similar here, “sufficiently Safeway issue tols were not distinctive” store purposes). justify for by admission robbed two men different from armed Danzey, United States v. P.2d Ante at 694 appellants. n. 5. Cf. (2d Cir.1979) (appellant “he admitted practically signa operandi, had a modus B. robberies”). ture, to his government’s The com- reliance on the agree majority I that the can rec- cannot “exception” plan perhaps mon scheme or Bussey. with Drew holding oncile its majority’s troubling even more than the also, Evans United See operandi theory. reliance on the modus (D.C.1978) (two burglaries were held States, supra See Ali v. United although insufficiently unique each (discussion note 1 under males, crime two nick- one whom was plan exception).13 common scheme or “Papa,” entry named to an obtained occu- argues ap- in effect dwelling pied night by of a ruse means pellants' Maryland commission of rob- involving person, entry a third bery and their commission of the expressed money, demanded interest in an robbery establish a common scheme drugs physically and either threatened or plan. plan, The common scheme or rather occupants). cases assaulted cited than particular elements of the majority support its inter- broad robbery, has become ultimate infer- pretation operandi of the modus theory Ali, supra ence. entirely turn on different factual contexts generat When ultimate inference Gates, present than those here. appel ed other evidence is not (robberies turned to sexual assaults greater guilt lants’ a con likelihood against type the same of victims within a tested issue yards hundred few each other on the nothing oth offered path along same Parkway Rock Creek dur- appellants’ possible propensity er than evening ing perpetra- rush hour armed commit robberies. tor); Warren, supra (gang abductions and rapes Admissibility on the perpetrated weapons with basis the so-called deadly against victims, type plan” theory same “common scheme or all whom waiting public transportation proper is be- if true scheme or midnight, tween sunset and by plan assailants proved probability which raises the driving the green sportscar). same small appellants’ participation robbery in the Finally, uniqueness the of the robberies in by setting apart them from others who had Samuels, supra note 12, 16, 312; Hackney Id. see v. plan. no such presents a stark contrast to the robberies (D.C.1978), A.2d There, here. the same day robberies of denied, 1054, cert. 439 U.S. S.Ct. two taxi drivers two black ask- women (1979)(evidence cover-up L.Ed.2d 95 ing to taken be to same address plan inferentially proved appellant’s identi robbing the drivers manner same Here, plan ty). there is no of “a true generated strong inference [appellants’] in the which includes mind[s] same women were two involved both uncharged crimes as joinder permissible robberies thus was Ali, supra stages plan’s in the execution.” reciprocal theory. on the Maryland note A.2d at 312. The

Indeed, dependent interesting it is not shown majority that the Saferight very day notes that nor interlocked with the plan ex- 13. Some courts and invoke the distinct from the common scheme or commentators plan" exception ception other "common scheme scribing when and indeed falls outside the de- Toliver, gestae” supra note the "res crime. crimes evidence doctrine. Green, However, supra note See 2 see ¶ 404[16]. Weinstein, jurisdiction, com- we addressed the what have defíned as the Ali "exception,” surrounding justifi- plan "im- not the "immediate mon scheme circumstances" (i.e., "excep- surrounding cation for the introduction of mediate circumstances" this evidence gestae” theory jurisdictions) "res tion” Indeed, However, robbery. only possible proper. infer- cess is I am troubled ence from the is that these a case such as this only two where the infer- generated by ence somewhat similar robberies were result the other crimes evi- appellants’ dence is separate possible of two decisions to propensity rob. commit a type certain of crime and that is effect, government’s approach inference jury can and will perilously “plan-to-commit- comes close to a make. theory.” a-series-of-similar-crimes See Im I Since 1, 3:23, improper cannot consider the ch. at 61. in- winkelried, highly prejudicial troduction such crimes, more, A series of similar evi- without error, dence harmless I would Ali, reverse. plan. insufficient to establish a supra note 520 A.2d at 311-12. At its Therefore, respectfully I dissent. root, only logical generated inference by the introduction of other crimes evi “theory”

dence under this is an accused’s

possible predisposition to commit a certain

type another, is, of crime rather than burglar. a bank robber rather than

III. COLUMBIA, Appellant, DISTRICT OF Finally, suggest alleged “pro- I phylactic” steps taken the trial court jury’s improper minimize the risk of the ACME REPORTING extremely preju- use this evidence were COMPANY, Appellee. counter-productive. dicial and Five times jury reminded of the “limited” use No. 85-941. Repetition type of the evidence. of this Appeals. District of Columbia Court magnify serves to ef- fect of this evidence and entrench it in the Argued June 1987. jurors’ government, minds. Since the Aug. Decided trial court and majority now the have not agreed on purpose the “limited” of this

evidence, indulges speculation it wild

suggest jury that the could done so. have that, my regardless

It is belief of instruc-

tions, admitted, if other crimes evidence is jury inescapably will use the evidence Lawson, propensity purposes. Credibility A and Character: Different Problem,

Look at an Interminable 50 No- (1975)(some empirical

TREDame L.Rev.

research results indicate that “when form-

ing unitary impression of a defendant’s

personality, jurors greatly will be influ-

enced prior evidence of criminal behav-

ior”). Such a me result does not trouble

when, through analysis, careful the evi- properly generate

dence is admitted to an propensity

inference other than and that outweighs propensity

inference infer- circumstances,

ence. In those its outweighs jury

value ac- its notes (D.C.1985); A.2d Brooks v. requirement uniqueness in the (D.C.1982); Warren, is, course, supra, modus at derived from the un- Tinsley 832; derlying justification for the introduction (D.C.1976); of this other Bussey, supra evidence. order to generate an inference that U.S.App.D.C. perpetrator 432 F.2d at Drew, uncharged crimes is one

Case Details

Case Name: Bartley v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Aug 31, 1987

Citation: 530 A.2d 692

Docket Number: 85-109, 85-1586

Court Abbreviation: D.C.