Appellant Eugene Busey appeals from his convictions for first degree felony murder while armed, 1 first degree premeditated murder while armed, 2 armed robbery, 3 possession of a firearm during a crime of violence, 4 and carrying a pistol without a license. 5 Busey raises four issues for our review: whether the evidence supported his convictions for premeditated murder, felony murder, and armed robbery; whether the admission of prior bad acts evidence and the trial judge’s failure to instruct the jury regarding that evidence was prejudicial error; whether the trial court erred in admitting evidence of five cartridges found in Busey’s apartment; and whether the trial court should have granted a new trial for newly discovered evidence. We affirm.
I.
Busey’s convictions arose out of the shooting of Michael Dickens on December 10, 1993. Government witnesses testified that early that morning, Busey had sold drugs to Dickens, who was sharing his purchases with them in an apartment rented by Carletta Inman. The first transaction involving Busey took place in the hallway of a nearby apartment building. Pamela Jones, who lived across the hall from Busey, gave him a twenty dollar bill and asked for “a twenty rock of cocaine.” Busey went into his apartment and did not come out. While Jones was waiting for him outside of his apartment door, she asked Karen Brooks, who witnessed their exchange, to go to Carletta Inman’s apartment and “watch Mike” (Dickens). Brooks did so, and returned several minutes later because Dickens wanted to know why Jones was taking so long. After some thirty minutes, Busey still had not emerged from his apartment, so Jones went back to Carletta Inman’s apartment. At that time, Carletta Inman, her siblings Jennifer Inman and Russell Inman, Michael Dickens, David Robinson, and Karen Brooks were all in the apartment.
At some point, Busey, whom witnesses referred to as “Geno,” arrived at Carletta Inman’s apartment, and Pamela Jones asked him about the twenty dollars she had paid him earlier. Busey denied ever receiving the money. Dickens heard this conversation and said not to “worry about *1158 it.” Pamela Jones then left Carletta In-man’s apartment and went to wake her sister, Brenda Jones, who was sleeping in a nearby apartment. Brenda Jones and Dickens had a close relationship, and Pamela told Brenda that Dickens was being generous, giving his money away and buying people drugs. Brenda and Pamela then went to Carletta Inman’s apartment. Busey was no longer there. Pamela Jones smoked some cocaine there, left to visit another friend’s house in the vicinity for about five minutes, and then returned to her mother’s house and went to sleep.
Meanwhile, upon arriving at Carletta Inman’s apartment, Brenda Jones initially went into the bathroom where Dickens was sitting, and then she and Dickens moved to the “first bedroom” (the bedroom closest to the front door of the apartment). There Dickens gave her two twenty dollar bills and asked her to go purchase two rocks of cocaine. Brenda Jones testified that Dickens removed the money from his right sock. She also testified that after Dickens gave her the forty dollars, he put approximately three hundred dollars back in his sock. Brenda went out to the apartment building next door, bought two “twenty bags” of cocaine, and returned to Carletta Inman’s apartment where she gave the drugs to Dickens, who was still in the first bedroom. Dickens shared the drugs with the other people in the apartment.
Dickens then sent Brenda Jones out again to purchase drugs, giving her two more twenty dollar bills from out of his sock. Brenda left the apartment, bought two twenty bags of cocaine, and returned. When she arrived back at Carletta In-man’s apartment, she found Busey had returned and was talking with Dickens in the first bedroom. The two men were sitting on the bed, and Dickens had a twenty dollar bill in his hands, which he handed to Busey. Busey then left the apartment, and Brenda Jones closed the bedroom door to express her anger at Dickens for showing Busey where Dickens 'kept his money. After that, Dickens and Brenda Jones smoked some of the cocaine that she had just purchased. While they were still in the bedroom, Jennifer Inman knocked at the door and said that “Geno wants to know is Mike all right.” Busey, who had returned to the apartment, 6 then knocked on the door and said he wanted to “holler at Mike.” Brenda Jones opened the door, and Busey asked to speak to Dickens alone. Dickens consented, Brenda Jones left the room, and the door closed. Witnesses heard voices coming from the first bedroom, but they heard nothing that suggested that Dickens and Busey were arguing. Jennifer Inman heard Busey ask Dickens how much money he usually spent when he came in the area. Dickens answered six to seven hundred dollars. The next thing witnesses heard was a gunshot coming from the first bedroom. 7
Less than one minute later, the door to the first bedroom opened, and Busey emerged. Witnesses reported that he said something like “I don’t fuck with you all like that, anyway” or “If any of you all mother fuckers say anything, I’ll kill you.” Busey then left the apartment and saw David Robinson, who had run out of the building upon hearing the gunshot, in his car. Busey stated that “if anybody says anything they are going to get the same thing,” and then asked Robinson for a ride. *1159 Robinson asked what had happened, and Busey responded, “[I]t’s best for you not to know anything anyway.” Robinson testified that Busey appeared calm and did not seem excited. Robinson dropped him off at East Capitol Street and Benning Road at approximately 6:00 a.m.
After the shooting, Brenda Jones and Russell Inman went into the first bedroom and saw Dickens lying on the bed with a gunshot wound to the head. Brenda Jones testified that as soon as she walked into the room she saw that Dickens no longer had his money in his sock because his pant leg was pulled up and his right sock was down. After staying a few minutes to ascertain whether Dickens was still alive, Brenda Jones ran out of the apartment and went to her mother’s house. She woke up her sister, DeAngela Jones, shaking and crying, and told DeAngela to call an ambulance. DeAngela Jones testified that when she asked her sister, Brenda, what was wrong, Brenda said “that Geno had killed her friend Mike.” Pamela Jones testified that she too was awakened by her sister, Brenda, and that Brenda was in a state of “nervous shock ... crying, trembling, holding her head, stretching her head like she was going out of her mind.” Pamela Jones stated that Brenda told her “[t]hat Geno had just shot Mike in the head.”
After being dropped off by Robinson on Benning Road, Busey paged his girlfriend’s brother, Cedric Gordon, and told Gordon to stay away from Elvans Road, the location of Carletta Inman’s apartment. Later that evening Busey asked Gordon to retrieve some clothes for him from Gordon’s sister’s apartment on El-vans Road. Gordon complied and brought the clothes (which were already packed in a bag in his sister’s apartment) back to Busey. Gordon also told Busey that he could stay in Gordon’s apartment. A couple of days later, Gordon came home to find Busey there.
A medical examiner testified that the cause of Dickens’ death was a single gunshot wound to the head. According to a police firearms expert, the slug recovered by the medical examiner was fired from a revolver and was either a .38 caliber special or a .357 caliber magnum bullet. 8 A police evidence technician testified that he recovered five .38 special bullets from Bu-sey’s apartment during the execution of a search warrant there later on the morning of the shooting.
DeAngela Jones and Pamela Jones also testified that two days before the shooting, they were in the hallway of their apartment building and saw Busey holding a silver-colored revolver 9 with a barrel length of eight to ten inches. In accordance with a pretrial in limine ruling by the trial judge, the government initially did not attempt to bring out the circumstances under which DeAngela and Pamela saw Busey with the gun. However, after defense counsel cross examined DeAngela Jones regarding her veracity on this point, focusing on her inability to remember the details of what she saw, the trial judge ruled that defense counsel had opened the door to further testimony on redirect examination about the details of the incident. DeAngela Jones then testified that two days before the murder of Dickens, Busey had pointed the gun she described at her head in the presence of Pamela Jones and demanded that she admit she and Busey had engaged in certain specific sexual acts. When DeAngela Jones refused to admit this, Busey pulled the trigger, but the gun did not fire. Pamela Jones testified to *1160 essentially the same facts regarding this event.
Lynette Hill was the only witness for the defense at trial. Ms. Hill testified that she lived directly below Carletta Inman’s apartment on Elvans Road and did not hear a gunshot in the apartment above her on December 10,1993.
On June 16, 1994, a jury found Busey guilty of armed robbery, first degree felony murder while armed, first degree premeditated murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Busey was sentenced on August 18, 1994.
On March 25, 1998, Busey filed a motion for new trial on grounds of newly discovered evidence. The basis for this motion was Busey’s proffer of a newly discovered witness who had allegedly “observed what appeared to be an attempt to throw a body over an apartment balcony where the murder occurred.” Busey’s counsel had located the witness, a Mr. Brown, with the help of an investigator. The investigator supplied an affidavit stating that Mr. Brown had told her that he witnessed “the disposal or attempted disposal of a man’s body in the early morning hours of December 10th, 1993.” Mr. Brown was not willing, however, to provide an affidavit or written statement himself. Busey requested a hearing so that Mr. Brown could be subpoenaed to give more detailed testimony and the court could determine the credibility and impact of his statement. In a written memorandum and order issued on June 22, 1998, the trial judge denied the motion for a new trial without a hearing, on the grounds that the affidavit came from an investigator rather than the new witness, the affidavit was vague, the new evidence did not exculpate Busey or inculpate anyone else, and the new witness’ alleged testimony would not be likely to produce an acquittal at trial.
II.
Sufficiency of the Evidence
Busey argues that the evidence was insufficient to support his convictions for first degree murder while armed, armed robbery, and first degree felony murder, and thus that the trial court erred in denying his motion for judgment of acquittal. In reviewing the denial of a motion for judgment of acquittal, “this court employs the same standard as that applied by the trial court in determining whether the evidence was sufficient to convict.”
Curry v. United States,
A. First Degree Murder While Armed
Busey does not dispute that the evidence was sufficient to prove that he murdered Dickens, but he does contest whether it sufficed to prove murder in the first degree. D.C.Code § 22-2401 provides, in pertinent part: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison ... is guilty of murder in the first degree.”
10
First degree murder is distinguished from second degree murder in that it requires premeditation and deliberation.
See Mills v. United States,
Busey contends that the government failed to prove that the murder of Dickens was premeditated. He argues that the only evidence is that witnesses heard a gun go off behind a closed bedroom door, discovered Dickens in that bedroom with a gunshot wound to his head, and placed Busey in the room with Dickens when they heard the shot. Busey emphasizes that no witnesses saw him with the murder weapon or testified that he brought a weapon to the scene and that the murder weapon itself was never recovered. No witness testified to hearing any argument between Busey and Dickens. Furthermore, Busey argues, there was insufficient evidence of a robbery, and thus the government never established a motive for the homicide.
We agree with the government, however, that there was sufficient circumstantial evidence for a reasonable jury to infer premeditation. First, the circumstances surrounding the murder suggest that Busey “reached a definite decision to kill,”
McAdoo,
The fact that Busey murdered Dickens with a gun is additional evidence that the homicide was premeditated and deliberated, because the jury reasonably could infer that Busey must have brought the weapon with him to Carletta Inman’s apartment. Carrying a gun to the scene of the murder is “highly probative of premeditation and deliberation” because it suggests that the defendant arrived on the scene with a preconceived plan to kill.
Frendak,
Moreover, as we discuss next, there was sufficient evidence to permit the jury to conclude that Busey had a motive for planning to murder Dickens, namely robbery. Although proof of a motive to kill is not necessarily inconsistent with a “sudden overpowering rage,”
Mills,
B. Armed Robbery
We likewise conclude that there was sufficient evidence to sustain Busey’s conviction for armed robbery. To be sure, there were no witnesses to the robbery, and the evidence did not establish exactly how much money Dickens had on his person before he was murdered. Nor was Busey subsequently caught in possession of Dickens’ property. Nonetheless, there was substantial evidence which the jury was entitled to credit supporting the armed robbery charge.
Brenda Jones testified that she saw Dickens remove and replace approximately three hundred dollars or more from his right sock a couple of times during the morning he was shot. She testified that she saw Dickens give a twenty dollar bill to Busey during one of Busey’s visits, and that she was angry with Dickens “[b]e-cause he showed Geno where his money was at.” Jennifer Inman testified that she heard Brenda Jones telling Dickens that he should not show anyone where he kept his money. Inman also overheard Busey in his last visit ask Dickens about the amount of money that Dickens brought with him and heard Dickens say that he typically brought several hundred dollars. Busey murdered Dickens moments after that exchange. Finally, Brenda Jones testified that when she discovered Dickens dead in the bedroom, she noticed immediately that “[h]is pant was pulled up and his sock was down” and his money was gone. In short, there was evidence that Busey learned during his visits to Carletta In-man’s apartment that Dickens possessed a large sum of cash in his right sock. Busey left and then returned to the apartment, had ample time to plan to rob Dickens (and to arm himself if necessary), and was alone with Dickens when he was shot. Immediately after the shooting, the witnesses who discovered Dickens’ body saw that where he kept his cash had been exposed and the money was gone. There was no evidence to suggest that anyone else had taken the money, and given the witnesses’ recitation of the events, Dickens had not spent it all before he was killed.
The jury evidently credited the government witnesses’ testimony in convicting Busey on the robbery count. As we noted initially, we defer to the jury’s conclusions in evaluating credibility, weighing the evidence, and drawing inferences of fact.
See Curry,
C. Felony Murder While Armed
A conviction for first degree felony murder (robbery) requires the government to prove that the defendant “without purpose to do so kills another in perpetrating or in attempting to perpetrate any ... robbery ....” D.C.Code § 22-2401;
see Page v. United States,
Other Crimes Evidence
Busey contends that the trial judge erred in admitting the testimony that he assaulted DeAngela Jones with a gun two days before Dickens was murdered. He argues that this was highly prejudicial “other crimes evidence” which in effect was offered, impermissibly to show that he had a propensity to commit the crime for which he was on trial. Busey further argues that the trial judge similarly erred in admitting the evidence of the five .38 caliber cartridges found in his apartment on the day of the murder. The government counters that the evidence that Busey possessed the gun and the cartridges was relevant to prove that he had the means to commit the murder. The government further responds that the evidence of Busey’s assault on DeAngela Jones properly was admitted under the doctrine of curative admissibility. We conclude that the trial judge did not abuse his discretion in allowing the evidence to come in as it did.
The admissibility of the challenged evidence initially was raised pretrial. At that time, the trial judge ruled that the cartridges were admissible, and that Jones would be permitted to testify about seeing Busey with a gun, but that she was not to testify in her direct examination about Bu-sey’s assault on her with that gun. However, the judge stated:
Now, Mr. [defense counsel at trial], you understand that whenever I state what I’m going to let in and not let in at this point I’m talking about the government’s case in chief, and I’m not alluding to any doors that might be open[ed] by either your cross-examination of government witnesses or evidence you might put on. I mean I can conceive how evidence of the threat might come in depending on what questions you ask. And I’m not about to give advisory opinions on what you can and cannot do. But if you have a concern that a question you might be propounding either on cross to a government witness or evidence you might be putting on in your case would, if you put it on, open some doors you don’t want to open then you can come to the bench and we can address the issue at that time.
In accordance with the judge’s pretrial ruling, the government elicited from Jones on direct examination that she had seen Busey with a gun two days before Dickens was murdered but did not bring out the circumstances. On cross examination, however, Busey’s defense counsel challenged Jones credibility by eliciting that she could not remember the time of day she first saw Busey with the gun, which floor of the building she was on, how long she had been there, or what she had been doing that day. The plain import of this cross examination was to suggest that Jones was either mistaken or lying when she testified that she had seen Busey with a gun two days before the homicide. Bu-sey’s counsel did not avail himself of the opportunity extended earlier by the trial judge to seek an advance ruling on wheth *1164 er this cross examination would open the door to testimony on redirect examination about Busey’s assault on Jones.
After the cross examination, the government asked for permission to question Jones on redirect about the circumstances under which she had seen Busey with a gun, ie., the assault. The government contended that defense counsel had opened the door by questioning Jones’ ability to remember details surrounding that event. In ruling that the prosecutor would be allowed to elicit the details of the assault from Jones on redirect, the trial judge stated:
I mean the whole thrust of her cross-examination is to suggest to the jury that this never happened because of her poor recollection. It seems to me that to the extent that there are circumstances surrounding this that help focus her memory on it, those are entirely relevant, Mr. [defense counsel]. I don’t see how you can say you didn’t open the door. I mean I just don’t understand. I mean the reason she remembers this is because she had a gun pointed at her. That’s a pretty vivid memory refresher. I mean, that’s a pretty vivid basis to remember something.
On redirect Jones described how Busey had held a gun to her head and pulled the trigger when she refused to admit that she had engaged in a certain sexual activity with him, as summarized above. Defense counsel was given the opportunity to recross examine Jones. Pamela Jones subsequently testified and confirmed DeAnge-la’s account.
To begin with, it is fundamental, as Busey argues, that evidence of a crime for which the accused is not on trial is “inadmissible to prove
disposition
to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.”
Drew v. United States,
118 U.S.App. D.C. 11, 15-16,
The rules are somewhat different, however, where the “other crime” is not independent of and unrelated to the charged crime:
Drew’s strictures do not come into play in every instance in which evidence offered to prove guilt of the charged of *1165 fense could be offered in support of a prosecution of another crime. Specifically, Drew does not apply where such evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.
Johnson, supra
note 13,
The one requirement that applies to the admission of all evidence of “other crimes,”
Drew
and non
-Drew
alike, is that relevance, or probative value, must be weighed against the danger of unfair prejudice. Relevant evidence is simply “that which tends to make the existence or nonexistence of a [contested] fact more or less probable” than it would be without the evidence.
Punch v. United States,
The testimony that Busey possessed a revolver that might have been the murder weapon was not admitted improperly to establish criminal propensity. That evidence was directly relevant, and was not
Drew
evidence, because it constituted evidence supporting the charge that Busey was the person who robbed and murdered Dickens. “An accused person’s prior possession of the physical means of committing the crime is some evidence of the probability of his guilt, and is therefore admissible.”
Coleman v. United States,
In permitting DeAngela Jones to testify that she saw Busey with a gun two days before the murder, the trial judge exercised his discretion to preclude the government from eliciting the context — that Bu-sey held the gun to her head and pulled the trigger — during Jones’ direct examination. Given the inflammatory nature of that assault, and its lack of direct relation to the crimes with which Busey was charged, the trial judge reasonably concluded that the risk of unfair prejudice to
*1166
Busey would outweigh the probative value of permitting the jury to be apprised of the context. But as the trial judge warned, this exclusionary ruling was provisional, because the balance of probative value versus unfair prejudice could be altered by defense counsel’s cross examination of DeAngela Jones. That is exactly what occurred. On cross examination defense counsel undertook to discredit Jones’ report of seeing Busey with a gun by highlighting her inability to remember details of the incident. At that point, the probative value of testimony about the assault increased dramatically. The context became highly relevant in evaluating whether to believe Jones; for she could testify -that despite her haziness as to some details, she vividly remembered seeing Busey with a gun because he threatened her with it if she did not admit to engaging in a particular sex act with him.
Cf. Minick v. United States,
The trial judge did not abuse his discretion in reassessing the balance of prejudice and probative value following the defense cross examination.
See (James) Jones,
We do not doubt that the evidence of Busey’s assault on DeAngela Jones was prejudicial to Busey. The trial court properly ruled that the government could not elicit this evidence on direct examination. But because the relevance of the assault increased dramatically after the cross examination of Jones, we are satisfied that the trial judge exercised his discretion soundly in concluding that testimony about the assault would be admissible on redirect despite the risk of prejudice.
Busey complains that the trial judge did not mitigate the prejudice by means of a limiting instruction. Generally, the trial court should, upon request, consider instructing the jury as to the limited purpose of other crimes evidence. Where the other crimes evidence is not within the
Drew
category, because the other criminal conduct is not independent of the crime charged, the decision to give such an instruction when one is requested is committed to the “sound discretion” of the trial court.
See Johnson, supra
note 13,
In contrast to cases involving true
Drew
evidence, where — as here — “evidence of one crime is inextricably entwined with the evidence necessary to prove that the accused committed the crime charged,” we have held that the trial court is not required to give a limiting instruction
sua sponte. (James) Jones,
Plain error necessitating reversal must be “clear” or “obvious,”
United States v. Olano,
New Trial Motion
Busey also claims that he was denied improperly a hearing on his motion for a new trial based on newly discovered evidence, i.e., a witness who allegedly would testify that he saw some of the government witnesses attempting to lower a body over a balcony of the apartment building where Dickens was killed. Although this new witness did not himself furnish a statement containing these facts to the trial court, Busey proffered the anticipated substance of the witness’s testimony in an affidavit from an investigator. Busey argues that this witness’s observations not only cast significant doubt on the credibility of the government witnesses, but also would have enabled Busey to develop a defense theory at trial that Dickens was robbed and murdered by some of those very witnesses and not by him.
“We review the motions judge’s grant or denial of a new trial motion only for abuse of discretion, and we will uphold the denial of such a motion as long as that denial is reasonable and supported by the evidence in the record.”
Townsend v. United States,
“Generally, a hearing is not required on a motion for a new trial.”
Payne,
Rule 33 authorizes the court, in considering a motion for new trial, to ‘take additional testimony’ if the case was tried without a jury. Beyond that, however, the rule says nothing about a hearing, and we have held that a trial court is not required to hold a hearing before ruling on such a motion. We have upheld the denial of a Rule 33 motion without a hearing when the trial court, after examining the proffered affidavit of a witness, concluded that the material contained in the affidavit would not ‘in all likelihood’ result in an acquittal.
Prophet v. United States,
For the foregoing reasons, we affirm Busey’s convictions.
Affirmed.
Notes
. D.C.Code §§ 22-2401, -3202 (1996).
. D.C.Code §§ 22-2401,-3202.
. D.C.Code §§ 22-2901,-3202.
. D.C.Code § 22-3204(b).
. D.C.Code § 22-3204(a).
. Jennifer Inman testified that this was actually the fourth time Busey visited the apartment that morning. The third time, he had returned to the apartment briefly to ask David Robinson for a ride to Benning Road. On that occasion, Busey stayed in the apartment "no longer than five or ten minutes.”
Jennifer Inman also testified that during Busey’s fourth visit, before he knocked on the first bedroom door, he asked her the name of the man in that bedroom. She told him that the man’s name was "Mike” (referring to Dickens).
. At the time that the gunshot was heard, the individuals present in the apartment were Brenda Jones, Russell Inman, Carletta In-man, Jennifer Inman, David Robinson, Michael Dickens, and Busey.
. The difference between the two types of bullets is simply the length of their cartridges. Both types have the same diameter base, and a .38 special and a .357 magnum revolver have the same diameter barrel. Because of the difference in cartridge length, a .38 caliber bullet can be fired from a .357 magnum revolver, but not vice versa.
. DeAngela Jones testified that the gun had "the turnaround thing on it that you put the bullets in.”
. The "while armed” element of the charge derives from D.C.Code § 22-3202.
. Although Busey has not raised the issue, the felony murder conviction merges with the first degree murder conviction.
See (Patrick ) Lee v. United States,
. "Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value.”
Drew,
118 U.S.App. D.C. at 16,
. In addition to demonstrating that evidence subject to the strictures of
Drew
is relevant to a recognized exception, see
supra
note 12, our cases have held that the defendant's commission of the other crime must be established preliminarily by clear and convincing evidence (unless it has already been established by an adjudication in a separate proceeding); that otherwise admissible
Drew
evidence should nonetheless be excluded if the trial judge finds that the danger of unfair prejudice that it poses substantially outweighs its probative value,
see Johnson v. United States,