*2
7th,
July
while at the
SCHWELB,
non. On
Before STEADMAN and
Southeast,
on 3rd Street
KERN,
of Helen Jeffries
Judges,
Associate
Senior
Colon,
(“Guda”)
appellants
Sam Smith
Judge.
what,
any,
action should
discussed
KERN,
Judge:
Senior
kill-
Brannon. Colon favored
against
taken
argued
him,
may ing
the others
but
jury A
convicted
against it.2
degree
first
murder
Daniels of
Shavar
Jeffries,
daughter,
how-
Yolanda
Helen’s
non.
ever,
1. Drew v.
(1964).
meeting
during
she heard
pursued him until he fell where he was government proffered to the court that cer- Later, again. shot told them that Smith (1) testify tain witnesses would that Shavar they had shot Rick Melson rather than the in Hector Colon’s and Curtis were involved victim, Thus, al- (2) intended Rick Brannon. drug ring; fight Ra- between though seller’s, intended to kill Bran- gan, drug the assailants and Bran- one of Colon’s non, non, dealer, they up killing independent drug ended Melson. was moti- an (3) drug territory; by competition for vated
II.
using
drug organization was
that Colon’s
Third Street
Helen Jeffries
on
Appellants
charged with the first
were
operations
prepara-
and for
as a basis for
trial,
degree murder of Melson. At
several
cocaine;
storage of the crack
tion and
individuals,
different
who had witnessed
(4)
in the
appellants were involved
parts
shooting
and from different
Colon,
boss,
discussion with
vantage
they
points, testified as to what
should be done with Brannon.6
what
testi-
had seen. Four different witnesses
appel-
argued
or
objected
fied that one or the other
both
Defense counsel
prof-
shooting3
committed the
and one
that the
lants had
the trial court
witness,
inadequate
respects
appellants,
who was a friend of
fer was
a number
evidentiary hearing for
they
present
requested
acknowledged that
were
proffered
government
that Sam Smith
6.The
Rick Brannon saw Shavar and a man who
scene,
testify:
saw
resembled Curtis at the
and Brannon
would
Hope Coley saw
Shavar shoot Rick Melson.
Colon,
Daniels,
along
Hector
with ...
two
that he
Melson,
up
walk
Shavar and Curtis
City
Cologne
from New York
came here
[sic]
him,"
sparks
“they
but she did not see
then
shot
specific
crack
intent
to distribute
with the
gun.
Shavar’s
Helen Jeffries saw
come out of
Street,
what
4th
and in fact that’s
cocaine on
the scene and witnessed
Colon and Shavar at
participated
they
it. He
did. He observed
Although
shooting.
Richard
both of them
this murder is that
The reason for
it....
(“Jamaica Cee”)
appellants
saw one of
Charles
Country
also dis-
Rick who was at that time
head,
in the
he could not tell
shoot Melson
strip got
tributing
into a
crack on the same
so much
it was because
looked
which one
fight
by
Artie
individual
the name of
with an
alike.
drug
Reagan
over a
sale-
and it was
[sic]
present
conversations
is also
when
[Smith]
was with Colon and
4. Sam Smith
[appellants] discuss what
are held in which
during
shooting.
that Co-
He remembered
Country
Rick because
should be done
Melson, but could not "remember”
lon shot
Reagan
respect
[sic].
with
to Artie
his conduct
Melson, too.
or Shavar shot
whether Curtis
Also,
proffered
government
that Brannon
fight
testify
for his
about the reason
would
Drew,
supra
note
5. See
drug
Ragan
of a
Ragan
was a member
and that
trial,
government
F.2d at 90. Before
ring
appellants, and
which included
distribution
crimes evidence of
that the other
contended
drug operation
corroborate
Jeffries would
Helen and Yolanda
by appellants,
assisted
appel-
testimony that
portions
Smith’s
of Sam
necessary
providing
for Co
the motive
home to distribute
over Helen’s
competitor,
lants had taken
Bran
to kill their
lon and his men
drugs.
non.
organization
knowledge
con-
the court to voir
dire
witnesses
appel-
therein.8 The
cerning
proffered
appellants’
involvement
drug ring.7
appellants guilty as
lants were members of Colon’s
found
receiving again
special
such an
instruction
The trial court refused to order
after
evidentiary hearing.
evi-
trial court that the “Drew
only
them
could be considered
dence”
govern-
pretrial hearing,
At the
after the
showing motive
purpose
limited
for the
proffer
crimes”
ment’s
the “other
charged.
crimes
for the
appellants’ responses,
the tri-
trial,
al court ruled that:
post-verdict motion for a new
In a
arguments
main
were
heard in this trial
based what have
presented
proffer
...
I’m
satisfied
government’s pre-
es-
the Government’s met its burden of
not consistent
testimony
and that
tablishing,
and the
is clear
Smith’s
requirement
*4
con-
to constitute clear and
that there is
insufficient
and
evidence
was
vincing
drug
of the
involvement
drug involvement
I’m satisfied
evidence
here.
Daniels,
especially
probative
appellants,
of Curtis
that it is
in the issue of motive. of
perjurer.
I’m satisfied that
relevant to
Smith was
admitted
motive is
denied
motion
proceedings
And I’m satisfied The trial court
here.
trial, observing
the Drew
probative
outweighs the
for a
that
value
new
as to Curtis “wasn’t as extensive
prejudicial.
prepared
Of course I’m
agreed
gov-
limiting
proffer,” but
with the
give
instructions when that evi- as the
“that
supported
out.
re-
that the evidence
dence comes
As counsel would
ernment
it,
working
a
quest
limiting
dope
I make
in fact
dealer
instructions.
was
[Curtis]
testimony
But I’ll allow that
out
Hector.” The trial court determined
as set
for
enough to
by
prosecutor].
government “proved
that
[the
admissibility of that
a basis for
establish
added.)
(Emphasis
evidence.”
III.
IV.
gov-
The trial commenced and after the
statement,
jurisdiction,
opening
ernment had made its
In this
defendant,
by
or
several witnesses testified as to
other crimes
Brannon,
selling
proffer contrary
jury
Defense counsel did
wit-
that Rick
who was
not
Street,
nesses,
competitor.
challenged
government’s
drugs
instead
on Fourth
was their
but
got
Ragan
fight
a
over the
proffer primarily
ground
on
in-
Brannon and
into
drug territory.
infuri-
testimony
Colon was
proffered
between
Fourth Street
consistencies
Ragan,
punching
for
who
with Brannon
prior
ated
and
statements of the witnesses and the
drug
on Fourth
was one of
sellers
perjury com-
immunization of one witness from
Street.
at the first
mitted
trial.
testified
he was an inde-
Rick Brannon
he, Ragan,
8. Sam Smith testified that
and others
drug
Street and
pendent
dealer on Fourth
Washington,
New
came with Colon
D.C. from
Ragan
drug territory.
he
fought
After
over
Shavar,
to sell crack
Curtis and Shavar
York
cocaine.
Ragan worked
for
said
selling drugs
already Washington,
D.C.
were
appellants’ objection, and struck
court sustained
Smith, Ragan
Fourth Street when
and
say
testimony.
permitted
Brannon
boss,
arrived. Colon was the
and Shavar
fight,
Ragan
others
time of the
he had seen
that at the
"hanging
directly
orders
him and
and Smith took
from
out”
Shavar.
Colon, Smith,
by
paid
him.
Colon’s lieuten-
were
Shavar was
testified
and
Helen Jeffries
later,
ant,
job
dispense drugs
staying
was to
to Colon's
Ragan
apartment,
whose
were
her
sellers,
Shavar,
in,
money
collect the
them after the
“one
from
too. She called
Shavar moved
sold,
drugs
give
proceeds
organization.
and to
to.
Cur-
were
head men” in the
job.
guard-
apartment
Smith had
similar
"to associate”
Colon.
visit her
tis would
so,
drug cache when
told him to do
ed the
and,
Colon
these men.
Smith,
thus,
Colon,
job
prevent anyone
his
from
it was
Yolanda Jeffries testified
by
stealing
paid
He
On
mother’s
Ragan
the cache.
Shavar.
had moved into her
and others
occasion,
drugs.
pick up
selling
While at the
addi-
were
Smith
Shavar would
Shavar
supplies
apartment,
York
heard
Smith and
of crack cocaine in New
she
tional
train,
discussing
back. Colon
bring
Washington,
that Brannon was
them to
D.C.
car,
bus,
going
get" Brannon.
explained to
said
were
"to
plane,
or cab.
also
Shavar
Smith
unproven,
except
speci-
is inadmissible
for
that the defendant is connected with the
fied,
purposes
limited
per
such as to show mo-
other crimes before the
should be
Drew,
supra
U.S.App.
tive.
note
mitted to
Light,
hear the evidence.”
su
15-16,
D.C. at
There, the defendant was with un- alternatively could have introduced such “stemming authorized use of a vehicle provided by of an evidence as rebuttal alibi government pool from his use of a motor a witness for the defense. The federal 26, personal purposes September car for appeals to note circuit court went on of 1974.” at 479. in Id. We concluded our prosecutor sought that if the had to follow opinion: “Appellant contends that the use suggested procedure, this impeachment misuse, prior of the five instances of car the trial court should then conducted have adjudicated, which not been nor con- inquiry an defen- through him, determine whether the nected evidence with un- was duly prejudicial agree.” to his case. dant was connected with the other crime We at 480. convincing opin- Id. “clear and evidence.” The States, 124 ion then cites Smith v. United Light: gov- We went on to note in “The 57, 4, 74, n. U.S.App.D.C. 58 361 F.2d 75 n. suggest ernment did not that the evidence (1966), authority 4 as its for the clear and exception rule would constitute the proof standard of for such evi- inadmissible, making other crimes but dence. makes no mention of such a Smith merely stated that it wished to use the standard, gov- but the instead “caution[s] background evidence as material to show concerning appellant’s ernment its use of caught_ how Since was police prior record to establish conviction issue, pellant’s arrest not then in this appeal.” which was later reversed on hardly other crimes rele- evidence] [the added; necessary.” (emphasis vant or Id. Later, in we held v. United Groves omitted) footnote States, 372, (D.C.1989), A.2d 374 modi- 564 curiam, (1990), 574 265 per fied A.2d gratuitously then in a We commented adjudication of a final of the absence “[i]n Light, citing in footnote United States v. guilt, must show clear 23, Bussey, 139 273 & n. evidence that (1970): 432 F.2d 1335 & n. 23 “There crime occurred and that the defendant is that, authority in- is where it,” authority, cited our connected to volves an crime not reduced to Light, supra, in 360 A.2d the dicta at issue judgment, there must be ‘clear and convinc- evidence,’ supra, U.S.App. 139 at ing inquiry, Bussey, adduced in an initial at 480 and
347 propos- n. that it 273 & 432 F.2d 1335 & n. 23.9 trial court that at Thereafter, States, would, present during Lewis v. 567 if es (D.C.1989), recognized A.2d believed, convincingly we clearly and establish Groves, supra, 564 A.2d at reiter- crime occurred and the Light Bussey “requirement” ated to it.11 If the defendants were connected convincing evidentiary of present government fails somehow to for of other crimes proffered had trial all the evidence that it evidence. court or finds part credibility of some deficient because however, Lewis, In reaffirmed we also otherwise, problems the trial court con- or “the trial manner which the court sufficiency siders the and tai- pre-admission inquiry conducts the under remedy according severity to the lors the Drew is left to the of sound discretion court, proof. The trial trial A.2d failure court.” 567 at 1330. We also discretion, example, exercising may, restrict acknowledged that while discretion, government’s closing argument, give failure trial court to necessary or, make all inquiries limiting jury, constitutes instructions to where error, necessarily but such error not probability “a it deems there is a of miscar- “cause for reversal.” Id.10 riage justice,” declare mistrial. See
Bundy 422 A.2d v. United V. (D.C.1980).
Against this decisional back ground, we review the trial court’s decision VI. admit the other crimes evidence for The court in the instant ease deemed Groves, supra, abuse discretion. under the mo- the evidence as admissible may A.2d 374. The trial court act within exception tive and declined to con- Drew pretrial inquiry its discretion to conduct its *6 admissible, sider whether the evidence was admissibility on the of the other crimes pursuant government argued, as the first evidence means of a “detailed 10, Toliver, 468 960 supra to note A.2d at government” holding, of instead 10, effect, Green, crime, supra note 440 A.2d at in trial a bench of the other 1007, to the presumably replicated explain “relevant immediate fully which will be as surrounding the jury the if admitted. Id. at In circumstances offense before 375. 12 proffer, government charged.” its the must show the meantime, surrounding explain to 9. In the in in Ali v. admissible the dictum United heroin States, 306, (D.C.1987) possession of of narcotics 520 A.2d 310 n. 4 circumstances States, fense); States, (D.C. Thompson 440 Green v. United A.2d v. United (D.C. (no 1982) 1988), convincing 1007 to admit evidence that we the error had noted clear and evidence, marijuana shortly citing two Light made sales standard for other crimes was relevant authority. before his arrest because evidence Bussey as explain circumstances sur to the immediate pos rounding the commission of the unlawful note, however, We 10. that this court has not marijuana). session of explicitly the extended clear and standard in these situations where evidence of crime, sponte to If court sua uncharged temporally 11. fails make when issue, finding explicit clear and convinc- there is at admitted close to the crime is to ex- ing crime occurred” "that the other plain charged crime because the acts are so appellants to it” but counsel are "connected closely intertwined that the evidence the for- request to such a fails the trial court make to explain is to latter. mer needed Hazel plain finding, error. review then is for States, (D.C.1991); our A.2d 40 n. 3. 599 Lewis, States, supra, A.2d at 1330-31. 567 A.2d see Parker v. United 586 724-25 (D.C.1991) (evidence of other acts of may against explain Although wife not violence admissible the other crimes evidence here simple against charged assault wife under Toliver and Green crime have been admissible nearly contempo- explain surrounding crime circumstances of because not crime, question about we do not reach raneous but extended to time three earlier); in instant here it is not at issue months Toliver v. United 468 (D.C.1983) (evidence appeal. of sales of A.2d Thereafter, against retaliation Bran- the trial court made all the discussions about necessary pretrial inquiries: other crimes it non.13 (1) explicitly stated that “the Government Furthermore, court made the trial establishing met its burden of ... [with] finding of other requisite that the evidence is evidence that there probative crimes was relevant and here”; (2) drug involvement the evi- motive, agree. and we The reason for motive”; “probative dence is in the issue of murder, man, wrong albeit of the was that (3) proceed- that “motive is relevant to the drug organization, which included here”; (4)
ings
probative
that “the
Bran-
appellants,
competition
was in
outweighs
prejudicial.”
value
More-
territory to sell the same
non for the same
over, the trial court was also careful to product, crack cocaine.
ruling
tailor its
to insure there was no
may
The evidence
have been
thus,
re-
prejudice
appellants:
undue
it
prejudicial
some measure
be
specific
fused to
details about
individ-
allow
yond
any proof
guilt.
inherent in
by appellants;
proposed
ual
it
acts
However,
evidence,
shoot
without such
give “limiting
instructions” to the
as
jury,
ing could have made little sense to the
appropriate;
recognized
and it
that if the
light
might
been seen as
of what
failed to meet its
confusing
incomplete and
the otherwise
burden on the admissible other crimes evi-
Nevertheless, when
facts of the case.14
dence,
might
that the case
enter “mistrial
determines that the other
the trial court
territory.”
Finally, in its denial of the
to show motive
crime evidence is relevant
trial,
post-trial motion for a new
as set
clearly
and its occurrence
established
above,
forth
the trial court
effect af-
ease,
it is then
convincingly,
firmed
that the
its belief
evi-
here,
conceded,”
“generally
as we do
“that
requi-
actually presented
dence as
met the
may
outweighed
prejudicial
effect
by finding
govern-
site standard
that the
Groves, supra,
probative
value.”
“proved enough
ment
to establish
basis
Drew, supra note
(quoting
349
exercising
the
necessary inquiries
“all the
its
hear the details of
[other crime].”
discretion,”
Lewis, supra,
A.2d at
v.
139
Bussey,
567
States
United
applied
evidentiary
(em-
stan-
268, 273,
(1970)
the correct
432
1335
F.2d
dard,15Groves,
It
supra, 564
at 374.
added).
A.2d
phasis
carefully
the
tailored the
all,
A
is not evidence
In re
give
enough
so
the jury just
evidence
(D.C.1992);
R.E.G., 602 A.2d
148
Jack
background
shooting
to make sense of the
States,
A.2d
1271
v.
589
son United
prejudice
but no more so as to cause undue
curiam),
(D.C.1991) (per
and thus cannot
Moreover,
appellants.16
to
court
evidence,
convincing”
“clear
constitute
prosecutor
emphasize
instructed the
not to
murky
unpersuasive
or even
evidence.
appellants’
or-
involvement Colon’s
having
Accordingly,
this court
elected
Also,
ganization
closing argument.
in her
requirement
“clear
con
impose this
gave
limiting
the appropriate
court
evidence,”
vincing
I
at a loss
under
am
jury
instruction to the
a requirement
how we can allow such
stand
considered,
all,
should be
for motive of
attorney’s
proffer.
satisfied
be
addition,
killing.
In
trial court was
proffer by
that a
a
Aside
fact
aware that
failure
witness,1
by a
lawyer is not evidence
sufficiently
meet
proposed
judge cannot tell whether
testi
for the other crimes evidence
“mistrial
mony
“convincing” adjec
is “clear” or
territory,”
it expressly
denied
—
quality
tives which characterize
pellants’ motion for a
on this
mistrial
evaluating
evidence—without
the credibili
circumstances,
ground.
all these
Under
provide
ty of the individual who is to
it.
the trial court did not abuse its discretion
admitting
the evidence of
Supreme
I note that the
Court
unan
held
judgment
“other crimes” and the
must
States,
imously in
v.
Huddleston
United
and is
681, 108
1496,
(at F.W., theory) reign supreme, how- L.W., least Appellant. In the Matter of ever, ought analy- I think we to eschew No. 91-FS-1133. which, alchemy, judicial resort sis Appeals. Court of District Columbia Peo- converts non-evidence into evidence. ple deprived of their freedom should not be Argued May 1992. something pretense on the is so when Aug. Decided demonstrably is not If we mean that it so. prosecution must make a which, true, will be to the
judge, cast the rule in those we should
terms, altogether dif- proclaim and not proof by clear and principle
ferent required. rhet- Our reality; if the
oric should coincide with requirement
ostensible of clear and con- misnomer,
vincing should evidence is a we so, misno-
say loud and clear. If it is not a
mer, unambiguously then should either we according
abandon it2 or follow it to its prosecutor’s that a
stated terms and hold grade.
proffer does not make the
Nevertheless, agree the convic- Assuming, affirmed.
tions must be Groves notwithstanding, evi- contrary
to the evidence, and that
dence means
judge should have conducted a voir dire the “other crimes” evidence
examination of jury, it is presence
outside the obvi- thereafter, and from what occurred
ous
specifically judge’s refusal mistrial, have admit-
grant a that he would even if such an
ted the contested evidence hearing Any held. had been therefore harmless.
error was *9 however, (D.C.1971). require might,
2. Such abandonment go Ryan, us to en banc. M.A.P.